Law & the Courts

Justice Department Refuses to Testify before Nadler’s Judiciary Committee

Rep. Nadler (D., NY) asks a question of A. G. William Barr who appears before the House Oversight Committee on Capitol Hill, in Washington, D.C., July 28, 2020. (Matt McClain/Reuters)
The lasting damage from the Trump years will be the norm-busting by congressional Democrats.

The unintended consequences of the House Democrats’ anti-Trump derangement, in both infantilizing congressional oversight and foolishly pleading with the federal courts to meddle in it, are becoming manifest. On Monday, the Justice Department declined a request by House Judiciary Committee chairman Jerry Nadler (D., N.Y.) that it send top officials to testify at an oversight hearing — or at least what was portrayed by the House as an oversight hearing; it was depicted by DOJ as more election-year political theater.

DOJ’s position traces to two developments in July.

First, as I recounted here, the Supreme Court decided Trump v. Mazars, which involved subpoenas issued by House committees for President Trump’s personal financial information. The dispute over this information pitted the Congress’s broad authority to seek information for legislative purposes versus the president’s legitimate interest in carrying out his weighty responsibilities free of both undue burdens and the pretextual exploitation of Congress’s oversight powers for partisan political advantage. That is, it was the type of legislative/executive tug-of-war that the political branches have worked out between themselves since a time out of memory — such that Chief Justice John Roberts was moved to observe that the case marked the first time in 233 years of American constitutional governance that the High Court had been asked to resolve such a controversy.

Regrettably, rather than demur, as it should have, the justices, by a 7-2 majority (including all four of the Court’s liberals, along with Roberts, and Justices Gorsuch and Kavanaugh), ruled that courts could wade in. In doing so, lower-court judges will now have to apply the vague guidelines the majority prescribed for refereeing these political brawls. The non-exhaustive list of considerations includes assessing how much Congress really needs the information in question, whether the subpoena is narrowly drawn, whether the information Congress sought was available from other sources, and so on. That is, the courts, rather than the people’s representatives, will decide the legitimacy of the latter’s inquiry; and the courts, rather than the elected president, will decide whether the burden on the presidency is reasonable.

To be sure, Mazars focused on the president’s personal papers, not information generated by the executive branch, including its departments and agencies. Nevertheless, the case signaled a new era in oversight. Henceforth, rather than grapple with a process of accommodation between the two sides, the executive branch has the option of telling lawmakers that if they really want information, they can subpoena it and try to get a court to enforce the subpoena after weighing the myriad concerns about legitimacy, overbreadth, burden, etc.

By using oversight as a political weapon and dragging the courts into it, House Democrats have made oversight more halting and complicated, concurrently diminishing Congress’s control over this core constitutional function of the legislative branch.

Later in July, Attorney General Barr agreed to testify before the Judiciary Committee chaired by Nadler, a bare-knuckled but ineffective partisan, who spearheaded an impeachment of Trump so underwhelming that Democrats barely mentioned it at their convention (and, remarkably, it is not an issue in the presidential campaign). The Barr hearing, I related at the time, was a mockery of oversight. Democrats spent hours “reclaiming their time” to prevent the attorney general from answering the loaded questions they posed — when not accusing him of purported corruption, violations of his oath, betrayals of the Constitution, and personal responsibility for the deaths of thousands of COVID victims.

As a result of these two developments, Stephen Boyd, the Assistant Attorney General for Legislative Affairs, has advised Chairman Nadler that DOJ will not produce for testimony officials from the Bureau of Prisons and the U.S. Marshals Service, nor a DOJ official to whom they report.

In taking this position, Boyd relied on the Mazars decision in casting doubt on whether the questioning proposed by the Committee was “required to serve a legitimate legislative purpose.” In contending that it was not, Boyd recounted the Committee’s “so-called oversight ‘hearing’ of the Attorney General.” He concluded that since the Committee “squandered its opportunity” to “engage in a meaningful, good-faith effort to obtain information and views from the Attorney General while he was present and prepared to testify,” there is scant reason to believe “further public spectacles with other Department officials” would “advance the Committee’s legitimate oversight efforts.” (Powerline’s Scott Johnson has posted the full letter, here.)

President Trump is rightfully criticized for indifference to the norms of the presidency. But the lasting damage from the Trump years will be the norm-busting by congressional Democrats. In obsessive campaigns to damage Trump politically, they have undermined essential legislative checks on the executive branch.

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