Law & the Courts

Look to Trump, Not Trey Gowdy, to Address Bias at the FBI and DOJ

Rep. Trey Gowdy on Capitol Hill (James Lawler Duggan/Reuters)
The president runs the executive branch, after all.

I  confess to being more weary than dizzy from the Dr. Gowdy–and–Mr. Trey routine. Just three weeks ago, Representative Gowdy, the South Carolina Republican who chairs the House Oversight Committee, assured us that everything was peachy with the FBI — no way, no how did the bureau “spy” on the Trump campaign when it deployed an “informant” to pry information from Trump-campaign officials. As Mollie Hemingway pointed out at the time, Gowdy had not seen relevant documents the FBI and Justice Department have been withholding from Congress — in fact, his spokeswoman said he did not even know what documents and records have been subpoenaed by the House Intelligence Committee (on which Gowdy also sits).

This week, Gowdy did a 180: back on the warpath, slamming the politically biased Feebs over “prejudging” the outcomes of the Clinton-emails and Trump-Russia investigations and delivering a chest-beating vow that the House would “use its full arsenal of constitutional weapons to get compliance” with its subpoenas — a threat that includes holding recalcitrant FBI and DOJ officials in contempt.

Whatever.

If I seem frustrated by Representative Gowdy, it is the frustration of an admirer. He is singular among lawmakers in his ability to ask piercing questions and drive home important points. But often there is little follow-through after a hearing’s highlight reel, and some of the scintillating rhetoric is, well, extravagant. The House is most certainly not going to use its “full arsenal of constitutional weapons” to pressure stonewalling agencies.

The Framers intended that the most ready and effective weapon would be Congress’s power of the purse. Yet, given Republicans’ slim majorities and the dysfunctional legislative budgeting process, it would not be realistic to threaten a dramatic slashing of Justice Department and FBI funding — something that would actually get their attention. Nor is impeachment chatter an effective means of saber-rattling. Republicans could not muster the simple House majority necessary to file impeachment articles against Deputy Attorney General Rod Rosenstein or FBI director Wray, much less the Senate supermajority (two-thirds) needed to remove them. And don’t think Rosenstein and Wray can’t do the math.

Thus does the vaunted “full arsenal” quickly degrade to a possible contempt-of-Congress citation against these officials. The votes, however, are probably lacking for that, too. Even if they weren’t, it would be an essentially meaningless gesture of censure. Sure, an official held in contempt won’t much like it in the moment, but ask former attorney general Eric Holder if it cramped his contemptuous style in the slightest. Did it make a bit of difference in the Republican Congress’s futile quest for timely disclosure of Justice Department files on the Fast and Furious scandal?

Of course it didn’t, and for a very simple, nakedly political reason: President Obama protected his attorney general. While the GOP-controlled Congress was delighted to huff and puff about Holder in conservative media, it had no stomach to take on Obama.

In our system, the president runs the executive branch. If he sets the tone that cooperation with Congress is the order of the day, there is no occasion to grouse about non-compliance. If he tolerates or encourages the non-compliance, all the grousing in the world makes no difference — unless the grousing is aimed in the president’s direction and sustained to the point that it materially affects the president’s standing with voters.

Which brings us to the strange dynamic that has infected today’s inter-branch clash from the start.

It is fair to ask whether this dispute is about accountability or theater.

Rosenstein and Wray work for Trump. And they are not Obama holdovers; they are Trump appointees. If they are defying Congress, it is because the president is permitting them to do so. Twitter tantrums and dark deep-state conspiracy theories don’t count; the president is empowered give his subordinates a direct order to comply with Congress’s demands, and to fire them immediately if they fail to do so. The president has the unilateral authority to disclose executive-branch files to lawmakers, including classified documents. Trump could have done this any time in the last 18 months.

This is the elephant in the room. Gowdy and his fellow GOP chairmen who are investigating the investigators — Devin Nunes (R., Calif.) of the Intelligence Committee and Bob Goodlatte (R., Va.) of the Judiciary Committee — say they are committed to using their “full arsenal of constitutional weapons”? Well, instead of impeachment threats, how about simply directing their complaints to the one and only executive official empowered to rectify the problem instantly?

The president and his staff have suggested that Trump must stay out of the fray because Special Counsel Mueller is investigating him for obstruction, and his political foes would accuse him of interfering in that investigation if he asserted himself. That is specious. As we’ve recently observed, the absence of any credible obstruction case is even more obvious after last week’s inspector-general report; the executive branch’s lawful compliance with Congress’s oversight demands cannot obstruct justice; and, as noted above, Trump has been harassing his underlings with tweets anyway — i.e., if putting pressure on the DOJ and FBI is the stuff of obstruction allegations, that ship has already sailed.

Moreover, the president has claimed to be the victim of the official misconduct that Congress is examining. These claims are colorable, to say the least — the IG report certainly illustrates pervasive anti-Trump bias. But they could also be exaggerated. We won’t know unless and until Congress is given the relevant information.

It is reasonable to ask whether President Trump is more interested in the political advantage of posing as a victim of Justice Department/FBI abuse than in exercising his legal authority to expose and address any abuse. And if the Republican Congress continues to portray the controversy as a battle only against truculent executive officials — as if these officials do not have a boss — it is fair to ask whether this dispute is about accountability or theater.

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