Rosenzweig: What Do Criminal Referrals Mean for the Special Counsel?

This is the first time in history Congress has referred a former president for prosecution—a remarkable, but hopefully one-time-only event that will be remembered through the ages.”

“What do we do now?”

So asks Senator-elect Bill McKay, portrayed by Robert Redford, at the end of “The Candidate” when he wins an unlikely election victory. He has only just realized that his victory is not the end, but merely the end of the beginning. He has never thought about what comes next.

That sense of uncertainty surely must resonate after the House January 6th Committee issued its final report and referred Donald Trump (and several others) to the Department of Justice for prosecution. The question many observers have is what the Department of Justice should and will do with the referrals, and Jack Smith, the special counsel overseeing the investigation into Trump’s 2020 election schemes, might be asking himself the same questions.

In some ways the answer is obvious. Criminal referrals from Congress carry no legal weight, so, steady as she goes. The special counsel’s investigation already encompasses all (or almost all) of the Committee’s most salient allegations against Trump. From a strictly legal perspective, the effects of the criminal referrals should be negligible.

The factual nuggets contained in the testimony and exhibits that Congress collected may be of more interest. We have already seen, for example, the suggestion that some witnesses were offered jobs in exchange for favorable testimony and others were provided lawyers who tried to shape their testimony.

These new, detailed factual allegations will likely open up new avenues of investigation. But they are, for the most part, sidelights to the main event, which is the potential prosecution of Trump (and others, including John Eastman and Rudy Giuliani) for attempting to overthrow the government. Formally, the referrals will have no impact on that decision.

Informally, the magnitude of the committee’s action may make a difference. This is the first time in history Congress has referred a former president for prosecution—a remarkable, but hopefully one-time-only event that will be remembered through the ages. It has no legal effect, but its impulsive effect is substantial.

Assuming Smith can establish probable cause to indict Trump, which based on the public factual record seems like a safe assumption, he must undertake a balancing test before deciding whether or not to present an indictment to the grand jury. Congress has just weighed in—with considerable mass—on one side of that balance.

The principles of federal prosecution say that one of the critical factors in determining whether or not to prosecute a case is whether doing so advances a substantial federal interest. Social peace has always been considered a substantial federal interest, and there are arguments that prosecuting Trump could disrupt the social peace (as to a lesser degree might a decision to decline prosecution). These are not considerations to be sneered at or dismissed—they are real and substantial, for Smith and for all Americans.

What the committee has done is throw its weight on the pro-prosecution side of the scale. The federal interest in prosecution is often keyed to the nature and seriousness of the offense involved. Assessing seriousness is, of course, rather subjective. It often, for example, involves an assessment of the impact that the offense has on the community in which it is committed.

Typically, prosecutors measure that impact in real-world terms like economic harm, increased physical danger, or even the erosion of a sense of security and peace of mind.

The January 6th Committee’s referral matters as an expression of community impact. What could be more noteworthy than a formal finding by our elected representatives that this set of crimes “matters” in some fundamental sense to the community?

Yes, the referral has a political dimension that can’t be ignored. And yes, it arises in a time of polarized contention that might well have influenced congressional decision making.

But none of that can take away from the historical significance of this moment. Never before in American history has Congress referred a former president for prosecution—because, as the committee reminded the country multiple times, never before did a sitting president of the United States try to overthrow the Constitution.

The committee’s unique act demands, in the end, the due respect and attention of those to whom it is directed, even as they must temper their acceptance of it with a healthy dose of realism.

The committee’s referral will not determine in Smith’s prosecution decision. A prosecutor cannot take too literally public interest and sentiment. They deserve attention, but they cannot independently justify a decision to prosecute or not to prosecute.

Almost everything about Trump is new and unique. The committee’s decision to recommend his prosecution is just the latest in the list of unprecedented events. What’s next for Smith? In the end he will have to make a prosecutorial decision that, likewise, has never been made before. Congress can’t make Smith obey the referral, but it has made itself almost impossible to ignore.

Paul Rosenzweig is the principal at Red Branch Consulting and a former deputy assistant secretary for policy at the Department of Homeland Security. The views expressed here are his own. This column originally appeared in The Bulwark.