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Government


NO, CONGRESS CAN’T CHARGE PEOPLE WITH CRIMES

Congress can conduct investigations, but whether to actually prosecute is up to
the Department of Justice.
Congress can’t charge someone with a crime



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Author: Casey Decker
Published: 8:06 PM EST December 19, 2022
Updated: 8:06 PM EST December 19, 2022


The United States House Select Committee on the January 6 Attack on the United
States Capitol voted unanimously on Dec. 19 to recommend criminal charges be
filed against former President Donald Trump and others for their alleged role in
the insurrection.

After a lengthy investigation, the committee released a final report in which it
argued there is sufficient evidence to pursue at least four different charges
against Trump, including inciting an insurrection.

But does this report carry any legal weight? Can Congress actually charge Trump,
or anyone else, with a crime?


THE QUESTION

Can Congress charge people with crimes?


THE SOURCES

 * Department of Justice
 * FBI
 * American Bar Association
 * Congressional Research Service
 * Daniel Richman, professor of law at Columbia University and a former federal
   prosecutor


THE ANSWER



No, Congress cannot charge people with crimes. Only federal prosecutors – who
work for the Department of Justice – can bring federal charges.




WHAT WE FOUND

In the United States, thanks to decades of laws, court cases, and practical
precedent, federal charges can only be brought by federal prosecutors.

“We are really at a stage when the Justice Department has a complete monopoly
over the bringing of federal criminal statutes,”  said Daniel Richman, a former
federal prosecutor who is now a law professor at Columbia. “That's in part a
matter of statute, and in part a matter of the Constitution and the way it's
been understood to give the Executive control over the enforcement of criminal
laws. And the Executive has obviously delegated that power to prosecutors in the
Department of Justice.”

In other words, Congress – the legislative branch – has no legal authority to
charge someone with a crime.

Federal criminal process

The usual first step in the process of prosecuting any type of crime is someone,
such as a victim or witness, alerting law enforcement. Law enforcement can then
decide to conduct an investigation.

If the crime is one that potentially violates federal law, then, according to
the FBI, “a federal law enforcement agency will undertake an investigation to
determine whether a federal offense was committed.” Such agencies may include
the FBI, the Drug Enforcement Administration, or the IRS. 

If the agency determines from their investigation there is enough evidence to
prosecute, it’ll make a referral to a U.S. Attorney’s Office – these are offices
under the Department of Justice where federal prosecutors work.

Those prosecutors in turn decide whether to pursue charges, which charges to
pursue, and how to pursue them. If charges are pursued, criminal court
proceedings can begin from there.

“Frequently referrals come from federal law enforcement agencies. When the FBI
has been pursuing a case and they want it prosecuted – they lack the power to do
so on their own – they will make a referral to the United States Attorney's
Office, which will either pursue the case or decline to pursue that case,” said
Richman.

Jan. 6 investigation

The latest Jan. 6 proceedings are similar, but in this instance the committee is
serving as a sort of investigative agency on its own, using its power to hold
hearings and compel documents and testimony to uncover evidence.

From there, the committee is merely forwarding its compiled evidence, similar to
how the FBI would, to federal prosecutors. 

It’s now up to the DOJ and its leader, Attorney General Merrick Garland, to
decide whether to actually pursue in court the charges outlined in the
committee’s report.

The DOJ has also been conducting its own separate investigation into the Jan. 6
attacks. The committee’s report could provide new evidence towards that
investigation. It could also mount political pressure on the department to
pursue charges. So while the referral carries significant weight, legally
speaking, it doesn’t have any more authority than a request would from an
ordinary citizen.

“The normal mantra you hear [from] prosecutors is: we'll pursue any case where
the facts and the laws support it. Here you have a bunch of legislators putting
together a package saying here are the facts and here's the law,” said Richman.
“That doesn't mean that there is a necessity for prosecutors to pursue this
case, and I'm not sure whether it radically will change their decision-making.
But they'll think, I suspect, long and hard about walking away from a case to
the extent that a very clear, powerful picture of criminality has been assembled
by the committee.”

Contempt of Congress

Congress has never before referred criminal charges against a former president,
but it has referred criminal charges against others, including other members of
the executive branch.

Most commonly, these referrals are for contempt of Congress –  a crime in which
someone interferes with Congress by, for instance, refusing to testify or
provide documents.

Even in these instances, it’s ultimately up to the Department of Justice to
decide whether to prosecute. And they often don’t. 

It’s happened before that Congress ordered the Sergeant-at-Arms to physically
detain a person until they agreed to testify in a hearing, but that process has
not been used in nearly a century.

FTX investigation

The question of Congress’s authority to pursue criminal charges arose again
recently in the case of Sam Bankman-Fried, the founder of the collapsed
cryptocurrency exchange FTX, who has been accused of fraud.

The Department of Justice has already filed eight charges against Bankman-Fried.
He was subsequently arrested in the Bahamas, and is awaiting extradition to the
U.S. to face those charges.

One viral tweet claimed that on the day of his arrest, Bankman-Fried “was meant
to testify under oath before Congress… who would then charge him with a crime.”

While Bankman-Fried was scheduled to testify before a House committee, Congress
is still not legally capable of charging anyone with a crime. They could only
recommend criminal charges to the DOJ, which has already filed such charges.


RELATED ARTICLES

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 * 4 facts we can VERIFY about Jan. 6 ahead of hearings
 * No evidence crypto company FTX laundered Ukraine aid money to Democrats



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