Politico reports that Speaker Paul Ryan (R., Wis.) has given the go-ahead to House Oversight Committee chairman Jason Chaffetz (R., Utah) to investigate the lack of executive branch compliance with the recordkeeping and records-production provisions of the Federal Records Act (FRA) and Freedom of Information Act (FOIA). The investigation would include — though purportedly not center on — violations caused by former secretary of state Hillary Clinton’s maintenance of a private e-mail system that resulted in massive misplacement (and likely destruction) of government records, as well as the State Department’s willful flouting of FOIA production requirements.
The Chaffetz gambit could seriously interfere with the FBI’s ongoing investigation of the Clinton homebrew-server arrangement, which appears to have resulted in serious violations of laws protecting classified information. From a legal standpoint, that would make the congressional probe pointlessly problematic. Politically, it would be an astonishing unforced error by Republican leadership.
No one should know this better than Representative McCarthy. He would have Ryan’s job today if a monumental gaffe had not doomed his speakership bid: his brag that the House Benghazi Committee investigation had succeeded in damaging Mrs. Clinton’s presidential campaign. This gifted the Clinton campaign with the powerful claim that the Benghazi investigation is nothing more than a partisan witch hunt — a talking-point Mrs. Clinton repeats, and the press dutifully echoes, whenever damaging evidence of her derelictions arises.
The ambitious Chaffetz, who took over the Oversight Committee chairmanship last year, has reportedly been trying to push his way into the Clinton e-mail scandal for months. Prior House leadership blocked him. Yet, Ryan reasons that he should be able to proceed as long as his committee is (in Politico’s words) “conducting systematic oversight within his jurisdiction” — meaning: looking into government-wide noncompliance with federal law, not focusing on Mrs. Clinton specifically. Chaffetz, for his part, also emphasizes his committee’s jurisdiction: “The Oversight Committee has jurisdiction on the Federal Records Act, and we intend to pursue that.” And ditto FOIA.
But the fact that a body with investigative authority has jurisdiction does not mean it must investigate at a particular point in time, or that it should not be mindful of the more pressing needs of other investigators who also have jurisdiction. Federal and state prosecutors, for example, have concurrent jurisdiction over narcotics offenses, but they use their discretion to avoid investigating the same crimes. Otherwise, scarce resources would be wasted and the search for truth obstructed as competing investigators stepped on each other’s toes.
It is a commonplace for lawmakers, seeking the limelight from public controversies that involve potential crimes, to try to subpoena witnesses and take other investigative steps that could interfere with law-enforcement investigations. This is not always a bad thing. In many situations, political accountability is more important than whether an apparently corrupt official is guilty of a crime. In particular, if a rogue official is still wielding power, it is more imperative to force his resignation or removal than to send him to prison.
Of course there are times when the executive branch refuses — whether out of inertia or corruption — to investigate something that cries out for investigation, like Benghazi. In those instances, Congress must act: While its tools may be inadequate, at that point it is the only game in town. Plus, if the executive branch is exhibiting corruption or incompetence, Congress has a constitutional obligation to hold officials accountable.
Congress does not exist to investigate crimes and is not well equipped for that task.
Nevertheless, when, as in Clinton’s case, the FBI appears to be conducting an investigation of potentially serious crimes in good faith, and especially when the Bureau appears to be moving expeditiously, Congress should stay out of the way. The FBI (usually, in conjunction with Justice Department prosecutors) is simply better at this than lawmakers are. By relying on the FBI rather than interfering with it, congressional committees with jurisdiction will have the benefit of a better investigative product from which to work.
The Obama administration has been patently violating the FRA and FOIA for over seven years. Though it had jurisdiction throughout that time, the Oversight Committee has taken no meaningful action. Indeed, Congress knew about Mrs. Clinton’s private e-mail system for months before it was publicly revealed in March 2015, yet did nothing about it.
Why act now? Why the sudden interest after years of passivity, when, as the Constitution intends, Congress could have been cutting off funds or impeaching lawless officials in order to force administration compliance? Why jump in at the very moment when, far from doing much good, taking steps to interview witnesses and gather up documents could impede the FBI’s ability to get to the bottom of the scandal with greater speed and more accuracy?
Because, Chaffetz rationalizes, exempting Clinton from his system-wide probe would be an indefensible case of the committee’s going “easier on her” than on other offenders. How absurd. It is not like the committee would be giving Clinton immunity; to the contrary, Chaffetz would be showing support for a more credible, capable investigation of Clinton than anything Chaffetz’s committee can muster. Besides, by staying his hand, Chaffetz would not be leaving a gap in his committee’s work; ultimately, lawmakers will learn what the FBI has uncovered. And if it turns out that the FBI investigation is closed without charges, nothing would stop Chaffetz from pursuing Clinton’s misconduct at that point. The lack of an indictment would not obviate the need for political accountability.At present, there is no reason for Chaffetz’s committee to probe FRA and FOIA irregularities arising out of Clinton’s private e-mail system. As he concedes, there are plenty of other Obama administration components (including the Pentagon) that merit the committee’s attention in this regard. They may not be the publicity generators Mrs. Clinton is, but if the committee’s objective truly is to explore flaws in the overall government records system, they are a perfectly good place to start.
Plus, it has now been over three months since, with great fanfare, Chaffetz’s committee introduced an impeachment resolution against IRS Commissioner John Koskinen. That was a perfect example of Congress moving to take important action when the Justice Department abdicates its responsibilities. Why not use the time to get the full House moving on that initiative?
By instead training their sites on Mrs. Clinton, Chaffetz and his committee would be giving her the dual boon of painting the ongoing, non-partisan law-enforcement investigation as a GOP-driven election-year obsession, and interfering in (and potentially delaying) the FBI’s investigation.
Assuming the accuracy of the Politico report, Speaker Ryan and Chairman Chaffetz should reconsider. I never thought I’d be saying this to the maddeningly passive GOP-controlled Congress, but: Don’t just do something, stand there!
— Andrew C. McCarthy is as senior policy fellow at the National Review Institute and a contributing editor of National Review.