The Jan. 6 Committee's Referral Is Unconstitutional | Opinion

The Jan. 6 Committee has voted to refer former President Donald Trump to the Justice Department for possible criminal prosecution. This referral violates both the letter and spirit of the Constitution for at least two reasons.

First, Article 1 of the Constitution grants Congress "all legislative powers" and only "legislative powers." Under our system of separation of powers, the power to prosecute lies exclusively with the executive branch through the justice department. Congress has no authority to refer specific individuals for prosecution. It is beyond the scope of its constitutional authority.

Second, Congress is specifically denied the power to pass any "bill of attainder."

Prior to America's independence, the British parliament enacted such bills that prosecuted named individuals. Our Constitution prohibited Congress from prosecuting named individuals. The power of Congress is limited to passing laws of general application that can be applied to specific individuals only by the justice department and a grand jury. A congressional committee officially voting to refer a named individual for prosecution violates the spirit of the explicit prohibition against congressional bills of attainder.

Jan. 6 Committee Recommends Prosecution
Former President Donald Trump is displayed on a screen during a meeting of the Select Committee to Investigate the Jan. 6, 2021, attack on the U.S. Capitol in the Canon House Office Building on Capitol Hill on Dec. 19, in Washington, DC. Al Drago/Getty Images

There is one possible exception to this separation of powers limitation on naming individuals. Section 5 of the 14th Amendment gives Congress the power "to enforce, by appropriate legislation" the provisions of that amendment, which include the disqualification from holding federal office anyone who "has engaged in insurrection or rebellion" against the United States or "given aid or comfort to the enemies thereof." Section 3 gives it the power to "remove such disability" by a two-thirds vote of each house. This is a very limited power intended to apply to southern rebels during the Civil War, as evidenced by the specific reference to "the loss or emancipation of any slave" in section 5. But, even if it were deemed applicable to the events of Jan. 6, 2021, the recent referral was not made pursuant to that amendment. Indeed, it was not made pursuant to any provision of the Constitution, because there is none that would authorize it.

The Justice Department will politely accept the referral and then place it in a file that is round and sits on the floor. A special prosecutor has already been appointed and is conducting a thorough and hopefully objective investigation. The Justice Department really doesn't need a referral from Congress, nor should it pay any attention to it.

The Committee itself was composed of both Democrat and Republican kangaroos. The two "Republicans" were selected by Democrats. The Republicans originally appointed by the Republican minority leader were vetoed by Speaker Nancy Pelosi in violation of the traditions of the House of Representatives. The Republicans then refused to choose two other members, so the Democrats selected them. They served only as cover for the one-sided investigation, report and referrals. The Committee's proceedings were more like a show trial—complete with slickly presented videos—than a serious legislative hearing in aid of passing laws. It was reminiscent of a Democratic version of Republican McCarthyism back in the 1950s, where citizens were named and put on blacklists.

The so-called Jan. 6 Committee was the culmination of the "Get Trump" efforts that ignored Constitutional constraints and the rule of law. It may not be the last word, however, since there is always the possibility that the special prosecutor may indict. If he does, it won't be because of the congressional referral, it will be because the justice department's investigation independently produced compelling evidence of criminal conduct. It will also be, hopefully, because experienced prosecutors made prosecutorial decisions based on justice department standards, priorities, and the exercise of discretion, not based on partisan advantage.

Charging a presidential candidate with a crime is as serious as it gets, especially if he is running against the incumbent who controls the justice department. If not done properly and objectively, it is the stuff of banana republics. As one South American dictator once put it: "for my friends everything; for my enemies the law!"

The ill-advised congressional referral will make it more difficult to prosecute Trump without it appearing partisan. The committee report and referrals will taint the special prosecutor's decision in the mind of many who will believe, even erroneously, that is was influenced by the corrupt committee process.

This is a good lesson on the centrality of our separation of powers to our system of governance. It is an important reminder of why congressional committees should stay out of prosecutorial decisions and criminal referrals.

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The views expressed in this article are the writer's own.