Lawmakers have not only the power but the duty to investigate executive misconduct, hold public officials accountable, and enact legislative remedies.
Lawmakers have not only the power but the duty to investigate executive misconduct, hold public officials accountable, and enact legislative remedies.
M any a liberty is taken by today’s commentators when imagining what the Constitution’s Framers would or would not have thought about how the modern American government works — or, more often, doesn’t work. Generally speaking, unless the commentator’s name is Rick Brookhiser (our eminent historian and author of, among other gems, What Would the Founders Do?), you’d best take such deductions with a grain of salt.
Yet, there is something about which we can be confident: The ingenious men who designed our framework of government, premised on the principle of discrete branches that check each other’s misconduct by exercising separate powers, would have scoffed at the notion that presidential corruption could be policed by prosecutors who work for the president.
The check against abuse of executive power, including any criminal misconduct committed by the president, is Congress.
Republicans, now in control of the House, would do well to remember that fact. When it comes to the Biden scandals, whether it is the millions of dollars the president’s family raked in by leveraging Joe Biden’s political influence or the president’s egregious misconduct in hoarding classified intelligence, administration officials are determined to stonewall the people’s elected representatives. Their rationale is that to comply with congressional demands for evidence, testimony, and other relevant information regarding misconduct by executive officials (the chief executive very much included) would interfere with the work of the special counsel and other prosecutors assigned by Biden’s attorney general and Biden’s Justice Department to investigate Biden.
To state this rationale is to refute it. Yet Avril Haines, the unelected, Biden-appointed director of national intelligence, contemptuously told the Senate Intelligence Committee to pound sand earlier this week when it asked to inspect the classified documents discovered in Biden’s private office and residence, as well as in Trump’s Mar-a-Lago estate and a nearby storage facility. Mind you, we are talking about a “select” panel, whose members all qualify for the highest possible security clearances, and whose leaders — Chairman Mark Warner (D., Va.) and Senator Marco Rubio (R., Fla.) — are members of the “Gang of Eight,” the congressional leaders to whom the executive branch is obliged to report the nation’s most sensitive intelligence operations.
Constitutionally speaking, even if we were not in an age of secrecy classifications and security-clearance levels, the Article II branch would have no legitimate authority to withhold information on government activities and records from the Article I branch that created, funds, and must conduct oversight of the agencies that make up the government’s law enforcement and intelligence apparatus. As it happens, however, the design of modern government ensures that committees of Congress can implicitly be trusted with the nation’s secrets — obviating the need for executive officials to trigger a constitutional crisis over their supposed fears that disclosing intelligence to Congress would result in leaks that imperil methods and sources. (Because, as we all know, executive officials would never, ever abuse their privileged access to the nation’s secrets by selectively leaking.)
That being the case, DNI Haines is not quite audacious enough to tell lawmakers they can’t be trusted. What she is saying, however, is even worse. Her claim is that there is no higher priority in our government than the completion of investigations currently being conducted by special counsels the Biden Justice Department has appointed, and that providing information to Congress would threaten the integrity of those investigations. Ergo, the administration won’t cooperate.
This is factually frivolous and constitutionally impeachable.
I was a federal prosecutor for 20 years and handled a good many cases in which investigative secrecy was imperative because, without it, violent criminal enterprises would likely kill people, destroy evidence, or flee. In those cases, the two highest public interests were to prevent acts of violence from happening and to prosecute hardened criminals so they would no longer prey on society.
Those considerations do not apply in the ongoing probes of the mishandling of classified information by public officials — or, indeed, in most political-corruption cases.
To begin with, when there has been executive misconduct, the highest national interests are, first, protecting our security and, second, holding the implicated officials publicly accountable so we can determine whether they are fit to serve in public office and whether any additional safeguards need to be enacted by Congress.
As for the first interest, when highly classified information has been mishandled — and particularly if it has been stored in an unauthorized place and potentially exposed to unauthorized persons — the highest security priority is for the government to conduct a risk assessment. This is essential in determining whether sources (such as deep-cover informants) may have been exposed (and thus need to be extracted lest they get killed, captured, tortured, etc.); and whether secret methods of acquiring intelligence have been compromised, which could not only imperil sources but could also give hostile countries the opportunity to feed disinformation into our intelligence databases, with the result that important national-security decisions are made based on false premises.
Remember, for example, when a judge in Florida tried to bar the government from using classified documents seized at Mar-a-Lago until privilege issues could be sorted out. The Justice Department was adamant that such an order would obstruct the intelligence agencies in the completion of a vital national-security risk assessment. This was said — and rightly so — to be of greater consequence than whether a criminal prosecution of Donald Trump was warranted.
Furthermore, the Framers did not require a prosecutable criminal offense to trigger impeachment, removal from power, and disqualification from holding future office. That is because when executive officials abuse their authority or show themselves unsuitable for high office, the imperative is to strip them of their power. If the misconduct is not serious enough for impeachment, Congress first and foremost must develop a full record of it and then propose legislative fixes to prevent it from happening again — which can include stripping the executive of funds and statutory authority. The question of whether the offending official should also be subject to criminal prosecution in court is, again, a second- or third-order concern.
Moreover, even if prosecution were our top priority, the need to maintain investigative secrecy would still only arise when public disclosure could imperil informants and other witnesses, and induce suspects to destroy evidence, suborn perjury, and/or flee. Those concerns are inapposite in Biden’s case, since (a) we are talking about disclosure to members of Congress who have security clearances, (b) the evidence is already substantially in the possession of investigators, (c) no one is going to be killed over these probes, and (d) the fact of the investigations is already public, so even if we were worried about evidence- or witness-tampering, disclosure to Congress wouldn’t increase the risk of either.
That is to say: It is sheer nonsense to claim, in the context of these classified-information scandals, that disclosure to Congress could compromise the ability of prosecutors to locate evidence and to prevent witnesses from constructing a false exculpatory story based on publicly disclosed facts.
Now, let’s leave these public-interest and practical considerations aside and get down to constitutional brass tacks.
In our system, the principal check on executive misconduct is Congress. The Framers did not need to trouble themselves with the farcical proposition that executive misconduct could be contained by prosecutors — i.e., middling executive officials who are subordinate to the president and may be fired by him at any time. When the Constitution went into effect in 1789, federal law enforcement barely existed. It was the states that exercised the police powers of investigation, prosecution, and punishment. The Constitution does not provide for an attorney general; the first Congress did, in the Judiciary Act of 1789. Congress did not create the Justice Department until 1870, and the FBI was not established by statute until 1933. The Framers did not give much thought to federal prosecutors, much less “special” federal prosecutors tasked with probing the executive branch itself.
But, as I related in my 2014 book Faithless Execution, the Framers did give a great deal of thought to how best to rein in potential abuses of the awesome powers they were endowing in the office of the president. Their solution was to make Congress the most powerful branch. (Contrary to popular belief, the three departments of government were not conceived to be “co-equal,” though they are peers.) Congress was given the tools necessary to check executive excess — the power of the purse, the power to create or dismantle executive agencies, the power to conduct oversight of executive operations, the power to reject presidential appointees and treaties, and the power to impeach federal officers up to and including the president, among others.
Needless to say, unlike federal prosecutors and directors of intelligence agencies, Congress does not work for the president; to the contrary, it has an institutional obligation to investigate and effectively address presidential misconduct. If presidential administrations attempt to thwart Congress in that constitutional mission, Congress has the power not just to fight but to overcome such obstruction. All it requires is the will to do so.
The Biden administration is using special counsels as a ploy to obstruct Congress. As we’ve previously discussed (see here and here), there was no reason to appoint a special counsel in Trump’s classified-information case. As for Biden, under long-standing Justice Department guidance, he is not subject to indictment by any federal prosecutor, special or otherwise, while he is a sitting president. It would be wrong under any circumstances for Congress to be told it had to suspend its public-interest and national-security inquiries while prosecutors took their time deciding whether to file charges. It is flatly ridiculous for the administration to take such a position when no criminal charges can be filed for, one presumes, at least two years.
It is particularly rich for a Democratic administration to claim, in 2023, that, because doing so could compromise the work of prosecutors, Congress may not be given the information it needs to assess and address executive misconduct. We just spent nearly two years watching the machinations of the House January 6 committee. It proceeded with its highly aggressive investigation even as the Justice Department proceeded with what are now more than 900 criminal cases stemming from the Capitol riot. The committee was not the slightest bit concerned about interfering with prosecutors. It liberally subpoenaed evidence and witnesses that the Justice Department needed, and it withheld what it learned from prosecutors until it was good and ready to share. It took the position that Congress’s investigation was the highest national priority. Far from fighting the committee on that score, the Biden administration waived executive privilege, sided with the committee in court challenges, and used its prosecutorial authority to indict key witnesses (Steve Bannon and Peter Navarro) who defied congressional subpoenas.
Given that recent history alone, to say nothing of the fact that the Constitution and investigative practicalities are overwhelmingly on its side here, Congress should not abide the Biden administration’s claims that committee investigations of executive wrongdoing could undermine the work of prosecutors.
DNI Haines ought to be handed a congressional subpoena and told that she must immediately produce the documents demanded by the Senate Intelligence Committee or she will be held in contempt of Congress forthwith. If she continues to defy congressional demands for evidence and/or testimony, the House should commence impeachment proceedings.
The same should be true with respect to any executive-branch officials — such as the leaders of the National Archives and Records Administration — who defy congressional information demands by claiming that producing documents or testimony could harm law-enforcement investigations, or that it must be left up to the Biden Justice Department–appointed special counsels to decide whether congressionally created executive agencies should provide information demanded by Congress.
In the meantime, Senator Tom Cotton is right that the Senate should refuse to consider any Biden nominees for executive or judicial offices until the Biden administration surrenders documents and fully cooperates in Congress’s investigations. If the administration’s defiance continues even so, Congress must then use its power of the purse. Special counsels could not stonewall Congress if lawmakers declined to fund their appointments and investigations. Furthermore, cutting swaths of the Justice Department’s staggering $38 billion budget — such as the money underwriting the Civil Rights Division’s campaign to impose woke dogma on schools, police departments, etc. — would be addition by subtraction.
Congress has not only the power but the duty to investigate executive misconduct, hold public officials accountable, and enact legislative remedies. That is what we were told throughout the House January 6 committee probe. Members of that committee made many dubious assertions, but they were right about that much. The Senate Intelligence Committee and House Republicans must make the Biden administration understand — using measures that have teeth, not fulminations on cable-news shows — that obstruction will not be tolerated.