A criminal referral by Congress to the DOJ is not a bill of attainder, because Congress is not inflicting a punishment by itself, and the accused person still gets the procedural safeguards of a trial, such as they are in this country.
The Supreme Court dealt with an argument by Richard Nixon that the Presidential Records Act was a bill of attainder against him. They rejected the argument, ruling that making him turn over presidential papers to the National Archives was not a punishment. Nixon v. Administrator of General Services, 433 US 425 (1977) (this was a 7-2 decision, with Chief Justice Burger and Justice Rehnquist dissenting on other grounds). Here is pertinent language from the court’s decision relative to the concept of “bill of attainder”:
In England a bill of attainder originally connoted a parliamentary Act sentencing a named individual or identifiable members of a group to death.35 Article I, s 9, however, **2806 also *474 proscribes enactments originally characterized as bills of pains and penalties, that is, legislative Acts inflicting punishment other than execution. United States v. Lovett, supra, 328 U.S., at 323-324, 66 S.Ct., at 1082-1083 (Frankfurter, J., concurring); Cummings v. Missouri, supra, 4 Wall. at 323; Z. Chafee, Jr., Three Human Rights in the Constitution of 1787, p. 97 (1956). Generally addressed to persons considered disloyal to the Crown or State, ‘pains and penalties’ historically consisted of a wide array of punishments: commonly included were imprisonment,36 banishment,37 and the punitive confiscation of property by the sovereign.38 Our country’s own experience with bills of attainder resulted in the addition of another sanction to the list of impermissible legislative punishments: a legislative enactment barring designated individuals or groups from participation in specified employments or vocations, a mode of punishment commonly employed against those legislatively branded as disloyal. See, e. g., Cummings v. Missouri, supra (barring *475 clergymen from ministry in the absence of subscribing to a loyalty oath); United States v. Lovett, supra (barring named individuals from Government employment); United States v. Brown, supra (barring Communist Party members from offices in labor unions).
Needless to say, appellant cannot claim to have suffered any of these forbidden deprivations at the hands of the Congress. While it is true that Congress ordered the General Services Administration to retain control over records that appellant claims as his property,39 s 105 of the Act makes provision for an award by the District Court of ‘just compensation.’ This undercuts even a colorable contention that the Government has punitively confiscated appellant’s property, for the ‘owner (thereby) is to be put in the same position monetarily as he would have occupied if his property has not been taken.’ United States v. Reynolds, 397 U.S. 14, 16, 90 S.Ct. 803, 805, 25 L.Ed.2d 12 (1970); accord, United States v. Miller, 317 U.S. 369, 373, 63 S.Ct. 276, 279, 87 L.Ed. 336 (1943). Thus, no feature of the challenged Act falls within the historical meaning of legislative punishment.
2
21But our inquiry is not ended by the determination that the Act imposes no punishment traditionally judged to be prohibited by the Bill of Attainder Clause. Our treatment of the scope of the Clause has never precluded the possibility that new burdens and deprivations might be legislatively fashioned that are inconsistent with the bill of attainder guarantee. The Court, therefore, often has looked beyond mere historical experience and has applied a functional test of the existence of punishment, analyzing whether the law under **2807 challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive *476 legislative purposes.40 Cummings v. Missouri, 4 Wall., at 319-320; Hawker v. New York, 170 U.S. 189, 193-194, 18 S.Ct. 573, 575, 42 L.Ed. 1002 (1898); Dent v. West Virginia, 129 U.S. 114, 128, 9 S.Ct. 231, 235, 32 L.Ed. 623 (1889); Trop v. Dulles, 356 U.S. 86, 96-97, 78 S.Ct. 590, 595-596, 2 L.Ed.2d 630 (1958) (plurality opinion); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963). Where such legitimate legislative purposes do not appear, it is reasonable to conclude that punishment of individuals disadvantaged by the enactment was the purpose of the decisionmakers.
Look at the last sentence: “Where such legitimate legislative purposes do not appear, it is reasonable to conclude that punishment of individuals disadvantaged by the enactment was the purpose of the decisionmakers”.