Jan 6 Congressional referrals: what are they, and what does it mean?

The referrals don't compel DOJ to act. But they don't have to.

The January 6th Committee has finally ended its investigation. The executive summary of the report can be found here. It has made referrals to the DOJ for criminal prosecution of Donald Trump, and his key allies, including John Eastman, Rudy Giuliani, Jeffrey Clark, Kenneth Chesebro, and Mark Meadows.

Four Members are also referred to the House Ethics Committee for failure to respond to committee subpoenas. These members are House Minority Leader Kevin McCarthy, Jim Jordan, Scott Perry, and Andy Biggs.

So what are the criminal referrals, and what do they mean?

First, the specific referrals are for five statutory violations:

• (1) 18 USC 1512(c) for Obstruction of an Official Proceeding

• (2) 18 USC 371 for Conspiracy to Defraud the United States

• (3) 18 USC 1001 for Conspiracy to Make False Statements

• (4) 18 USC 2383 for Incitement, Assistance, or providing Aid or Comfort to an Insurrection

• (5) 18 U.S.C. 2384 for Seditious Conspiracy

The first of these is a referral for Trump, Eastman, and others for “Obstruction of an Official Proceeding”—namely, the 12th Amendment’s Electoral College Vote Count process in Congress itself on January 6th. The allegation is that the “sole purpose and obvious effect” of Trump’s scheme was to “obstruct, influence and impede” the official proceeding of the Electoral College count in Congress which certified Joe Biden to become the President.

The second referral is for Trump, Eastman, and others for “Conspiracy to Defraud the United States”. Be a bit careful with this one: the name can be a bit deceptive. It’s not a reference to money fraud in the traditional sense that most people understand it, but rather, it’s an allegation that the scheme involved an agreement to impair, obstruct, or defeat the lawful functions of the United States government by deceitful or dishonest means.

The third referral is for Trump, Eastman, and others for “Conspiracy to Make a False Statement”. This statute—18 USC 1001—is routinely used against people who lie to government investigators during law-enforcement or congressional investigations. Michael Flynn, for example, eventually pled guilty to one of these charges for lying to FBI investigators during their investigation of him. Here it’s being used a bit differently. The referral is alleging that Trump, Eastman, and others materially misled Congress through its scheme to appoint an alternative set of “fake electors” and send their uncertified votes to the electoral college.

The report also alleges cases of witness tampering. One, for example, is an allegation that witnesses were promised amazing job offers from opaquely-funded organizations that were ultimately controlled by Trump and his associates in exchange for “failing to remember” in response to certain questions by the committee. The committee alleges that the witnesses who didn’t take that bribe found those job offers rescinded.

These first three referrals are all relatively straightforward, as congressional referrals to DOJ go. But the final two are super interesting. So before we get to that, and to understand why, we need to first understand the slightly strange world of criminal referrals from Congress.

In the US constitutional structure, Congress and the Executive Branch have different duties. Criminal prosecutions occur exclusively in the Executive Branch, overseen by DOJ, and not by Congress. Congress does, however, have an independent role to play performing its own investigations. Those investigations are done for a legislative purpose or an impeachment purpose, not for criminal investigative purposes. But if, in the course of their investigation, Congress (as a whole, or as a committee) discovers something it thinks DOJ should be aware of, it can make a criminal referral directly to DOJ.

DOJ is not obliged to do anything with these referrals, other than to write a letter in response.

Often, criminal referrals to DOJ are performative grandstanding. DOJ generally is better resourced and has better powers to obtain evidence than Congress when investigating crimes, and most Congressional committees operate publicly, so anything they uncover is usually known by DOJ long before the referral is made. It’s rare for Congress to know of a crime that DOJ doesn’t, and Congress has different priorities to DOJ. DOJ’s job is to get a conviction; Congress’ job is usually more about base politics. And so there is some considerable tension between the two branches when it comes to criminal referrals. After all, Congress weighing in on criminal cases can undermine DOJ’s ability to keep the eventual case from looking like it has partisan motivation.

But not all criminal referrals are useless or grandstanding: DOJ will generally not prosecute crimes relating to Congress without a referral from Congress itself, as a deferential matter. The most obvious example is 18 USC 1001 cases involving a witness lying to Congress, or cases involving disruption of Congressional proceedings.

In the case of the January 6th Committee, the first three referrals all fall into this category of cases that DOJ would normally want a congressional referral prior to opening a full investigation.

But the last two referrals are not like the others. It’s different in two key ways.

The first way it’s different is that these referrals relate to Trump only. The other three refer to Trump, Eastman, and others. The second way it’s different is that it’s not a crime specifically related to Congress. It’s doing something different.

The fourth referral is for “Inciting, Assisting or providing Aid and Comfort to an Insurrection”. Here, the committee alleges that Trump’s actions—and inactions—during January 6 amount to providing aid and comfort to the rioters at the Capitol, despite the absence of an explicit agreement; relying instead on his statements to various aides, and his otherwise inexplicable actions and inactions during the course of the riot.

The fifth referral is “Other Conspiracy Statutes”, but explicitly calls out the seditious conspiracy statute 18 USC 2384 and 18 USC 372. The committee notes in their summary that the leader of the Oath Keepers was convicted under this statute. The committee says it believes Mark Meadows could have specific evidence relating to such charges but could not obtain them due to Meadows’ refusal to testify.

But the insurrection referral is the most interesting of all of these. It’s not really about DOJ or criminal charges—although I don’t doubt for a second that the committee would be very happy for DOJ to charge it. Rather, it’s all about the 14th Amendment, and Section 3 disqualification. The relevant section is below:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Parsing that out concretely has fallen to the courts, as Ben Wittes describes in Lawfare. In particular, unlike impeachment, where permanent removal from office falls exclusively to the Senate to decide, Section 3 disability is decided by the Courts; it is not something that Congress merely declares.

But this is a problem too. Section 3 disability cases don’t involve Congress directly; Congress will not be one of the litigants in the case. So, while the judge will take into account Congress’ view, it won’t affirmatively seek it out either. If Congress wants to make its view known (specifically that January 6th was an insurrection within the meaning of the 14th Amendment, and laying out its reasons why), it needs to publish that now.

That’s what this insurrection referral is.

Without this, it would be possible for a judge to take the January 6th report and conclude that while the House concluded that insurrection occurred at the Capitol, they didn’t decisively conclude that Donald Trump was himself an insurrectionist within the meaning of the 14th Amendment. This referral guards against that. It shows decisively that, in the view of the House of Representatives, Trump was involved in the insurrection personally, and then sets out their body of evidence as to why they concluded it.

Of course, the judge is not obliged to abide by Congress’ view. But it adds significant weight to that eventual Section 3 dispute.

So that’s what the referrals are doing.

The first three are congressionally-related crimes that DOJ would normally not charge without a congressional referral. Those apply to Trump, Eastman, and others.

The seditious conspiracy referral is a bit different; it’s really tossing the open investigation over the fence to DOJ, now that the committee knows it will be disbanded when the next Congress is sworn in.

But the insurrection charge is different. It’s addressed to DOJ, but it’s really for the judge in an eventual Section 3 disability case; it’s setting out the committee’s view and assembling a body of work that the judge can use to declare Donald Trump unable to hold any office under the United States by virtue of him instigating an insurrection at the Capitol, and is therefore disqualified under the 14th Amendment.

Beyond that, the January 6th Committee has avoided the temptation to refer other criminal cases to DOJ that DOJ is able to conduct and investigate themselves.

That’s a good thing. After all, DOJ were already doing that anyway.

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