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Don Wolfensberger: Criminal referrals by members of Congress raise procedural questions

The Hill

Friday, January 12, 2018

It is curious there has been no discussion of the procedural anomalies of Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) and Sen. Lindsey Graham (R-S.C.) making a criminal referral of “Trump dossier” author Christopher Steele to the Department of Justice and FBI.

The anomalies are two-fold: the action announced Jan. 5 was taken before the committee has completed its investigation into Russian interference in the 2016 U.S. election; and the full committee did not authorize the referral. Judiciary ranking member Dianne Feinstein (D-Calif.) raised the only procedural complaint: she had not been consulted in advance of the referral.

According to the letter of referral, Grassley and Graham are asking the DoJ and FBI to investigate whether Mr. Steele violated the criminal code’s provision against making false statements to federal authorities. The senators attached “a classified memorandum” relating to certain communications between Steele and multiple U.S. news outlets regarding the dossier –an unclassified version of which they said will later be released publicly.

The joint press release quotes Grassley as indicating he does “not take lightly making a referral for a criminal investigation,” but feels obliged to in any investigation which turns up evidence of a crime. Notwithstanding that assertion, the release goes on to indicate, “This referral does not pertain to the veracity of the claims contained in the dossier,” but is “for further investigation only, and is not intended to be an allegation of a crime.” Graham is quoted in the same release as suggesting “a special counsel needs to review the matter” given “the many stop signs DoJ ignored in its use of the dossier.”

Don Wolfensberger is a fellow at the Bipartisan Policy Center.