How Criminal Referral Works

What it means that Sen. Rand Paul asked the Justice Department to open an investigation into Anthony Fauci.

After months of clashing with Anthony Fauci in Senate hearings, Sen. Rand Paul has referred Dr. Anthony Fauci, the nation’s top infectious disease expert and chief medical adviser to the president, to the Department of Justice for criminal prosecution. Paul argues that Fauci lied to Congress earlier this year about whether the U.S. was funding gain-of-function research at the Wuhan Institute of Virology, the lab near where the first COVID outbreak was recorded.

Paul alleges that Fauci lied during a Senate hearing in May when he denied that National Institutes of Health (NIH) grants had been used to fund gain-of-function research at the Wuhan Institute of Virology. Lying to Congress is a federal crime that can carry up to five years in prison.

Arguing that a 2015 paper authored by Shi Zhengli, a researcher at the Wuhan lab, proved that the NIH funded studies on increasing the transmissibility of animal viruses to humans, Paul asked Fauci, “do you still support funding of the NIH funding of the lab in Wuhan?”

“We did not fund gain-of-function research to be conducted in the Wuhan Institute of Virology,” Fauci responded.

The point of contention was reignited in a Senate hearing last week when the Kentucky Senator accused Fauci of lying in his earlier appearance and asked him to retract his previous statement. “As you are aware, it is a crime to lie to Congress,” Senator Paul told Fauci.

“I have not lied before Congress. I have never lied. Certainly not before Congress. Case closed,” Fauci responded. “Senator Paul, you do not know what you are talking about, quite frankly, and I would like to say that officially. You do not know what you are talking about.”

Fauci’s response prompted Paul to file an official criminal referral with the Department of Justice, which The Washington Examiner obtained last week.

Once the Justice Department receives such a referral, its job is to determine which federal agency has jurisdiction to investigate the alleged crime and consult with them on whether there’s any basis to begin an investigation. Investigative responsibility is designated for the investigative agency during criminal proceedings, while prosecutorial responsibility is vested in the Justice Department.

If the investigative agency determines there is enough evidence to constitute a criminal offense, they will send their own criminal referral to the Department of Justice recommending charges be brought against the involved party.

Sending a referral to the Justice Department isn’t a unique power for members of Congress; average citizens have the ability to do so as well. However, former U.S. Attorney for the Eastern District of Michigan, Barbara McQuade, notes that sometimes there might be certain courtesies given to Congress that are not provided to average citizens.

“As a matter of law, there’s no real difference between a member of Congress and an average citizen filing a criminal referral with the Department of Justice,” McQuade told The Dispatch. “But when I was a U.S. Attorney, I would sometimes receive letters from the Justice Department's Office of Legislative Affairs about a member of Congress sending a criminal referral that pertained to my district. They would tell me they received the referral from Congress and requested that I keep them updated so they could report back to that member.”

It's difficult to say how many criminal referrals sent to the Justice Department by citizens or other officials spark an investigation and an eventual prosecution, since some referrals remain private and each one is looked at on a case-by-case basis.

“Every day, the Justice Department and investigative agencies receive very serious criminal referrals for things like kidnappings, bank robberies, and drug trafficking that they will take very seriously. They also receive more frivolous referrals that claim the government is monitoring them, so they need to wear tinfoil hats,” McQuade told The Dispatch. “So, both the Justice Department and investigative agencies use common sense to address each referral as it arises.”