Congress cannot accuse anyone of a crime

Congress can investigate, but whether or not indictments are actually filed is up to the Justice Department.

The United States House Select Committee on the January 6 attack on the United States Capitol voted unanimously on December 19 to recommend criminal charges against former President Donald Trump and others for their alleged role in the riot.

After a lengthy investigation, the committee released a final report In it, it argued there was enough evidence to pursue at least four separate charges against Trump, including inciting a riot.

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


Can Congress indict people for crimes?



That's wrong.

No, Congress cannot indict anyone for crimes. Only federal prosecutors — who work for the Justice Department — can bring federal charges.


In the United States, federal prosecutions can only be brought by federal prosecutors, thanks to decades of law, court process, and practical precedent.

“We’re really at a stage where the Justice Department has a complete monopoly on making federal criminal laws,” said Daniel Richman, a former federal attorney-turned-state attorney law professor at Columbia. “This is partly a question of law and partly a question of the constitution and how it is understood to give the executive branch control over the enforcement of criminal laws. And the executive branch has apparently delegated that authority to prosecutors in the Justice Department.”

In other words, Congress – the legislature – has no legal authority to charge anyone with a crime.

The usual first step in the law enforcement process Any type of crime has someone, like a victim or witness, alerting law enforcement. Law enforcement agencies can then decide to conduct an investigation.

According to the FBI, if the crime is a felony that may violate federal law, “a federal law enforcement agency will conduct an investigation to determine whether a federal crime has been committed.” These agencies may include the FBI, the Drug Enforcement Administration, or the IRS.

If the agency determines through its investigation that there is sufficient evidence to charge, it will refer to a US Attorney’s Office – These are offices of the Department of Justice where federal prosecutors serve.

These prosecutors, in turn, decide whether charges will be filed, what charges will be filed, and how they will be prosecuted. If charges are brought, criminal proceedings can be initiated from there.

“Referrals often come from federal law enforcement agencies. When the FBI is pursuing a case and wants it prosecuted — they lack the authority to do so themselves — they refer it to the United States Attorney’s Office, which either pursues the case or declines to prosecute the case. ‘ said Reichman.

The most recent Jan. 6 trial is similar, but in this case the committee serves as a sort of standalone investigative agency, using its powers to hold hearings and coerce documents and testimony to uncover evidence.

From there, the committee merely forwards its assembled evidence to federal prosecutors, much like the FBI would.

It is now up to the DOJ and its chairman, Attorney General Merrick Garland, to do so decide whether the charges set out in the Committee’s report should actually be pursued in court.

The DOJ has also conducted its own separate investigation in the January 6 attacks. The committee’s report could provide new evidence for this investigation. It could also put political pressure on the department to press charges. Although the referral carries significant weight, it has no more legal authority than a request from an ordinary citizen.

“The normal mantra you hear [from] prosecutors is: We will pursue any case where the facts and the law support it. Here you have a bunch of lawmakers putting together a package that says here is the fact and here is the law,” Richman said. “It doesn’t mean prosecutors need to pursue this case any further, and I’m not sure that will radically change their decision-making. But they will, I suspect, think long and hard about leaving a case to the extent that the committee has produced a very clear, meaningful picture of the crime.”

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 often, these recommendations are for contempt of Congress – a crime in which someone interferes with Congress, such as refusing to testify or providing documents.

Also in these instances, it is ultimately up to the Department of Justice to decide whether to prosecute. And you frequently Not.

It is happened before that Congress ordered the Sergeant-at-Arms to physically detain an individual until they agreed to testify at a hearing, but that procedure had not been used for nearly a century.

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

That Ministry of Justice has filed eight charges against Bankman-Fried. He was subsequently arrested in the Bahamas and awaits extradition to the United States to face those charges.

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

While Bankman Fried was planned to testify before a House committee, Congress is still unable to indict anyone with a crime. They could only recommend criminal charges to the DOJ, which has already filed such charges.

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Text: 202-410-8808 Congress cannot accuse anyone of a crime

Laura Coffey

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