Law & the Courts

Don’t Blame Gowdy

He can’t seize the Clinton servers, because Benghazi isn’t a criminal investigation.

There’s a lot of half-baked commentary out there urging the Benghazi select committee chaired by Representative Trey Gowdy (R., S.C.) to “seize” forthwith the servers through which former secretary of state Hillary Clinton carried out her private e-mail scheme. Regrettably, some of it comes from lawyers and self-styled “constitutional conservatives” who ought to know better. As Chairman Gowdy explained to Megyn Kelly in a Fox News interview on Monday night, however, his committee — a legislative committee — is powerless to obtain search warrants and coerce the physical surrender of evidence.

Simply stated, the committee is not a prosecutor.

Our constitutional system is premised on the separation of powers. As I recount in Faithless Execution, the Framers were especially adamant that the power to make the law be separated from the power to enforce the law — the concentration of both in one set of hands being the road to tyranny. Consequently, Congress has no authority to conduct criminal investigations or to seize evidence. Those are police powers and they belong solely to the executive branch.

Consider what happens when, for example, an executive-branch official ignores a congressional subpoena or gives false congressional testimony. Lawmakers can do no more than hold the official in contempt of Congress and refer the matter to the Justice Department with a plea that it prosecute. Congress has no power to seize the evidence the subpoena seeks or to indict the perjurious official. It is up to the executive branch to take such action.

Congress, of course, can issue subpoenas, but only for conducting oversight and the fact-finding necessary to craft legislation. Congress is not a grand jury. Unlike the Justice Department (the main executive-branch law-enforcement arm), Congress has no standing to appear in court on behalf of the United States and to seek search warrants. Nor does it have a police force for the execution of warrants — that’s the job of the FBI and other executive-branch police agencies.

Over the last six-plus years, we have seen how frustrating it can be when a hyper-politicized Justice Department refuses to investigate — indeed, is complicit in — administration scandals that may involve criminal conduct. The kneejerk reaction is to call for a “special prosecutor” or an “independent counsel” (meaning, independent from the Justice Department and the rest of the executive branch). As I’ve pointed out a number of times (e.g., here and here), these are constitutionally flawed proposals precisely because prosecution is an executive power and the Constitution vests all executive power in the president. Our system does not abide a prosecutor who is truly autonomous from the executive branch.

Nevertheless, the instinct to call for a prosecutor is natural. No sensible person’s first thought is to have Congress do the investigation. That is not what Congress is designed for — it is not institutionally competent. That’s not a rap on Congress, which has no shortage of fine lawyers — prominent among them, Trey Gowdy, who was an excellent prosecutor. It is simply an acknowledgment of the reality that Congress is neither intended nor equipped to compel production of evidence, investigate crime, and prove guilt.

I believe I have been harder on the Benghazi select committee than any conservative commentator (see here, here, and here). That is largely because I admire Representative Gowdy, was very happy to see the committee placed in such capable hands, and have been disappointed at its lethargic approach to an urgent matter. This, however, has never been to overlook that the committee has a very difficult job.

Not only are there political pressures to bury Benghazi and the disastrous bipartisan policy decisions that led to it. It is also simply very difficult for a congressional committee to investigate government misconduct. It has a much harder time coercing cooperation than a prosecutor does — especially when at least half the Congress is undermining the investigation.

My objection is that, just as the public and the commentariat seem confused about what the committee is for and what it can do, so does the committee. Chairman Gowdy is determined to run the case like a criminal investigation, but it is not one. It is a public-accountability investigation. It is not legal but political in nature – and I mean “political” not in the pejorative sense of partisanship but in the classic sense of accountability for the misuse and abuse of political power.

Several important things flow from that foundational premise. It is often prudent for a prosecutor to take a very long time to undertake a complex investigation involving transactions that occur largely outside the United States. The case is put together in secret, behind the scenes, because the objective is to construct an airtight case that convinces twelve jurors beyond a reasonable doubt to convict people who will be sent to jail for many years. That takes however long it takes.

That is not the case with a public-accountability investigation. Such oversight investigations need to work quickly to correct wayward policies and hold up to public scrutiny officials who may not be up to their weighty responsibilities. The idea is to demonstrate convincingly that changes need to be made, not to prove beyond a reasonable doubt that people need to go to jail.

A public-accountability investigation, naturally, needs to be public in order to maintain public support. It needs to hold hearings.

Congress does not have law-enforcement powers, so, if the investigation is to get anywhere, lawmakers must use the legislative powers they have to coerce cooperation from the executive branch: (a) generating public attention so there is political pressure on the administration to produce evidence; (b) using the power of the purse and the power to deny confirmation of the president’s nominees for high office as leverage; and (c) credibly threatening to impeach subordinate executive-branch officials who obstruct the investigation by withholding evidence or committing perjury. These are the only tools a congressional committee has to make it understood that its subpoenas are commands, not suggestions, and that the committee is not to be trifled with.

What, by contrast, do we have here? For ten months, the committee takes virtually no action and conveys the impression that it is not exactly tripping over itself to get to the bottom of Benghazi. There are nearly no hearings – the ones that have been held have been desultory and mostly irrelevant to the main issues. The public may be forgiven if it forgot that there was a congressional Benghazi investigation, much less that anyone in Washington still thinks it worth examining the government actions that both created conditions inviting the terrorist murder of four American officials and then covered up what happened.

Republicans, meantime, have forfeited the power of the purse for this year. They will not even consider impeaching officials who abdicated their duty to protect and defend Americans and then studiously defrauded the public about the cause of the attack. They continue to rubber-stamp Obama appointees. Indeed, as Betsy McCaughey points out, they overwhelmingly confirmed a secretary of state who told them he would not adhere to the Constitution’s treaty requirements; and now, they are poised to confirm as attorney general — the nation’s top law-enforcement officer — a nominee who has told them she supports the president’s unconstitutional amnesty order and his non-enforcement of federal law.

Is it any wonder that the White House, the State Department, and Mrs. Clinton are toying with the committee despite Chairman Gowdy’s stern warnings that he means business?

Obviously, most of us want the Benghazi select committee to succeed; while skeptical and impatient, we’re willing to assume that the committee wants to succeed. But if Chairman Gowdy and his committee are ever to get to the bottom of Benghazi, everyone needs to stop agitating over executive police powers they do not have and start demanding that they use the powerful tools the Constitution has actually given to Congress.

— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.

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