Congress can conduct investigations, but whether to actually prosecute is up to the Department of Justice.
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
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.
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.
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…
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