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?
Can Congress charge people with crimes?
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.
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.
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.