Posted December 2022
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During congressional investigations, Congress can learn of potential criminal activity. When this happens, committees and members often make referrals to the Department of Justice. In fact, Congress has referred over 180 individuals or organizations to the Justice Department for criminal investigation since the 1920s.
Congressional investigations that have triggered these referrals include:
The crimes that have been referred include a wide range of activities, including perjury, conspiracy to defraud the United States, and multiple forms of fraud. Over one-third of the referrals resulted in criminal indictments.
The total number of referrals does not include over 1,100 referrals made by the House Special Committee on Un-American Activities in 1941, the vast majority of which the Justice Department determined were “clearly unfounded.” If these referrals were included, the number of referrals by Congress would exceed 1,300.
The process for making criminal referrals is flexible, and congressional investigators usually have significant control and discretion over how to make a referral. In most cases, a referral is accomplished when congressional investigators send a letter to the Department of Justice that gives the Department notice of the alleged criminal acts, the investigators’ basis for those allegations, and a request for the Department to further investigate the allegations. Referrals also typically include copies of documents or other pertinent information that the investigators believe should be reviewed by the Department.
Referral letters are often not voted on by a committee or the House or Senate, and the timing, content, and public disclosure of a referral letter are at the discretion of the committee or members making the referral. But referrals can also be made through the use of committee or House and Senate resolutions, which must be respectively approved either by the referring committee or chamber. This method is usually used for referrals that require resolutions. Referrals made by the House and Senate Ethics Committees – which have jurisdiction over investigations related to the official conduct of members and staff – must in the Senate be approved by the Committee and in the House be approved by either two-thirds of the Committee or a floor vote.
Outside of these cases, it is rare for a referral to be made by a resolution. The most notable example of this practice comes from the Senate's investigation of the Teapot Dome scandal. In 1924, the Senate and the House passed Senate Joint Resolution 54, which alleged that three cabinet-level officials and two private oil companies had acted illegally and authorized the President to appoint a special counsel to investigate their conduct. The resolution was signed into law by President Coolidge who appointed two special counsels to lead the investigation. The counsels subsequently brought multiple criminal cases against the cabinet officials and oil companies named in the joint resolution.
Referrals impose no legal obligations or restrictions on the Justice Department. If the Department finds a referral compelling, it may decide to open a formal criminal investigation into the referral’s allegations. But if the Department finds a referral’s allegations unconvincing, the Department has no formal obligation to investigate the referral’s allegations. Additionally, in cases where the Department begins an investigation, the Department is in no way limited by the receipt of a congressional referral.
The addendum in section VI summarizes information about 183 criminal referrals made by congressional committees and members of Congress since 1922. The most frequent criminal violations alleged in these 183 referrals were:
Of the 183 referred individuals and organizations, 37 percent were subsequently indicted by the Department of Justice.
The referrals summarized in the addendum are illustrative and are not a comprehensive summary of criminal referrals made since 1922. Because most referrals occur via letters between congressional offices and the Department of Justice, publicly accessible copies of the letters are often difficult to obtain and, in many cases, remain under seal. Due to these limitations, referrals were identified by searching House and Senate resolutions, committee reports and prints, hearing transcripts, unsealed committee records, and contemporary press accounts. To be included in the addendum and this analysis, a congressional document or press coverage must have indicated that the leadership of a committee or member of Congress had asked the Department of Justice to investigate an individual or organization for violating federal law. Excluded from the addendum and this analysis are (1) contempt resolutions that assert that an individual or organization should be prosecuted for contempt of Congress, (2) referrals that pertained to misconduct by members or staff of Congress, and (3) referrals that did not identify specific individuals or organizations. The addendum also excludes the House Un-American Activities Committee’s mass referral of 1,121 individuals in 1941.
In February 1922, the Department of the Interior leased the mineral rights of three oil fields in California and Teapot Dome, Wyoming. In exchange for the leases, oil executives from two companies secretly gave Secretary of the Interior Albert Fall over $400,000 in cash and government bonds. After receiving complaints from constituents and critical press coverage of the leases and Secretary Fall, the Senate Committee on Public Lands and Surveys began investigating the circumstances surrounding the leases in April 1922. The Committee held hearings throughout the fall and winter of 1922 and 1923. As the hearings progressed and the scandal widened, Secretary Fall submitted his resignation in January 1923.
At a Committee hearing in January 1924, oil executive Edward Doheny read a statement disclosing that he had given a $100,000 no-interest “loan” to Secretary Fall and that Mr. Doheny’s son had personally delivered the cash to the Secretary. Following this disclosure, the Senate and House both passed a joint resolution that stated the leases were “executed under circumstances indicating fraud and corruption” and authorized the President to appoint a special counsel to conduct criminal and civil investigations.
Following the enactment of the joint resolution, two special counsels were appointed and conducted multiple criminal investigations based on the findings of the Committee’s investigation. During these criminal investigations, the special counsels met frequently with the Senators leading the Committee’s investigation and frequently relied on information uncovered by Senate investigators to bring indictments against Secretary Fall and oil company executives. Mr. Doheny and Mr. Fall, along with another oil executive and Mr. Doheny’s son were indicted on several charges, including conspiracy to defraud the United States, contempt of court, and bribery. Mr. Fall was convicted of accepting a bribe and became the first cabinet member convicted of a felony related to their official conduct.
The Teapot Dome investigation was a turning point in the history of congressional investigations and the relationship between Congress and the executive branch. The criminal prosecutions that grew out of the scandal led to two Supreme Court decisions that firmly established Congress’s investigatory powers.
Due largely to the efforts of Senator Harry Truman, the Senate unanimously created the Special Committee to Investigate the National Defense Program in March 1941 to conduct oversight of the Roosevelt Administration’s expansion of the armed forces in response to Nazi aggression in Europe. Based on its early success in exposing mismanagement and inefficiency during the initial defense mobilization, the Committee was reauthorized several times and continued to operate until 1948. In the course of multiple investigations, the Committee made numerous bipartisan referrals to the Justice Department whenever it discovered potential violations of federal law. The following examples are a sample of the numerous referrals made by the Committee.
In response to concerns about the rise of violent crime and the rise of organized crime in major cities across the country, the Senate established the Special Committee to Investigate Organized Crime in Interstate Commerce in 1950. Led by Senator Estes Kefauver, the Committee held hearings in over a dozen cities across the country that collected testimony from over 600 witnesses. The Committee’s hearings were among the first to be televised and struck a chord with the public, with an estimated 30 million Americans tuning in to watch its deliberations.
In March 1951, the Committee held eight days of hearings in New York City focused on the alleged connections between organized criminal activity and local and state politicians. During these hearings, the Committee received conflicting testimony from several witnesses and made multiple referrals for perjury. One referral involved conflicting testimony about whether when serving as mayor of New York City, William O’Dwyer had accepted a $10,000 bribe. Following the hearings, the Committee referred the record of the hearing to the Justice Department and a New York County District Attorney to determine if the witnesses had committed perjury. The Chairman of the Ways and Means Committee also requested the Internal Revenue Service to examine whether Mr. O’Dwyer had broken tax laws. The Committee referred testimony of three additional witnesses related to an alleged bribe offered to a James Moran, a close aide of Mr. O’Dwyer, while he was serving as New York City’s Deputy Fire Commissioner.
Mr. O’Dwyer resigned from his position as U.S. Ambassador to Mexico following his testimony before the Committee but was not criminally charged. Mr. Moran was convicted of perjuring himself before the Committee, in addition to extortion and income tax evasion, and served over 10 years in prison. Louis Weber, who had offered a bribe to Mr. Moran, was also convicted of perjuring himself before the Committee.
On April 14, 1994, the members of the Energy and Commerce Committee’s Subcommittee on Health and the Environment questioned the chief executives of seven major tobacco companies. For over six hours, Subcommittee members asked the executives about the health effects of cigarettes, the addictive properties of nicotine, and whether the companies had manipulated the level of nicotine in their products or marketed cigarettes to children. In response to these questions, all of the executives stated that they did not believe that their products were addictive. The Subcommittee held an additional hearing two weeks later and heard testimony from former Philip Morris scientists about how they had demonstrated the addictiveness of nicotine using animal experiments while working for the company. Following the hearing, the Subcommittee released internal company documents showing that tobacco companies had known about the link between tobacco use and cancer and the addictive properties of nicotine for decades – in direct contradiction of the executives’ April testimony.
Following the Subcommittee’s initial hearings and disclosure of internal tobacco company documents, a bipartisan group of representatives sent a referral to the Department of Justice requesting that the Department open a criminal investigation based on the executives’ testimony and the documents released by the Subcommittee. Seven months later, they reiterated this request in a second referral that included an extensive 107-page “prosecution memorandum” detailing the evidence supporting the referral’s allegations. Following the second referral, the Justice Department empaneled five grand juries and undertook an expansive investigation of the industry. The Department ultimately decided to file a civil racketeering lawsuit in 1999 against five of the companies whose executives had testified in front of the Subcommittee. In 2006, a federal judge ruled that the companies had violated civil racketeering laws and required the companies to better disclose the health risks of using tobacco.
In June 2021, the House of Representatives authorized the creation of a select committee to investigate the “facts, circumstances and causes” relating to the attack on the United States Capitol on January 6, 2021, and “the interference with the peaceful transfer of power.” Over the course of the committee’s investigation, it held nine public hearings and presented testimony from over 70 witnesses. In December 2022, the Committee unanimously approved criminal referrals alleging that former President Donald Trump and one of his closest advisors, attorney John Eastman, violated multiple federal laws in their effort to prevent the official certification of electoral votes on January 6, 2021. The Committee referred both Mr. Trump and Mr. Eastman for obstructing an official proceeding (18 U.S.C. §1512(c)) and conspiring to commit offense or defraud the United States (18 U.S.C. §371). The Committee also referred President Trump for conspiring to make false statements (18 U.S.C. §§371, 1001), “assist[ing]” or “ai[ding] and comfort[ing]” an insurrection (18 U.S.C. §2383), and violating two additional conspiracy statutes (18 U.S.C. §§ 372 and 2384).
In November 2022, the Department of Justice appointed a special prosecutor to oversee the Department’s investigation into whether “any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021,” as well as a separate investigation into President Trump’s handling of classified White House documents and other presidential records.
These investigations resulted in a June 2023 indictment charging the former President with 40 counts relating to retention of classified information, and an August 2023 indictment charging the former President with conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights. As of March 2024 the trials relating to both indictments had not yet commenced.
While there are many instances of well-justified congressional referrals that led to criminal charges and convictions, referrals have also been used by committees and members to achieve partisan goals without making the Department of Justice aware of new substantive evidence or information.
One prominent example is the mass referral made in 1941 by Rep. Martin Dies, the Chair of the House Special Committee on Un-American Activities. Chairman Dies sent the Department of Justice a referral with the names of 1,121 federal employees and alleged that they were advocating the “overthrow of the government.” A year later, the Attorney General reported to Congress that the referrals were “clearly unfounded” and “never should have been submitted for investigation.” Of those individuals named by Chairman Dies, only three federal employees were fired or reprimanded as a result of the referral.
There are more recent examples of referrals with scant substantive justification. These include a referral of former Secretary of State Hillary Clinton for perjury by the chairs of the House Judiciary and Oversight Committees in July 2016 in the midst of her presidential campaign. They also include referrals made in 2016 by the House Select Investigative Panel investigating Planned Parenthood, which Charles Tiefer, an expert on congressional procedure and the former deputy general counsel for the House of Representatives, described as an attempt to “criminalize, based on speculation rather than evidence, a vital system of research.” In 2020, Rep. Devin Nunes, the ranking member of the House Intelligence Committee, sent up to 14 criminal referrals to the Department of Justice related to the investigation into Russian interference in the 2016 election. When Special Counsel John Durham failed to obtain convictions after years of investigation and the expenditure of over $5 million, Mr. Nunes responded by asserting Mr. Durham was “being blocked” by the Justice Department.
