Claims that probing a presidential candidate is necessarily abusive smack of hypocrisy, and Congress has no constitutional power to oversee local prosecutors.
Claims that probing a presidential candidate is necessarily abusive smack of hypocrisy, and Congress has no constitutional power to oversee local prosecutors.
C ongress is surely empowered to examine whether any federal funds it transfers to states are being used for their intended purposes. But that authority does not make the federal government overlord of the state governments. We have a system of dual sovereignty, with vertical separation of federal and state power that members of Congress are bound to respect. Congress did not create state and municipal district attorneys’ offices, as it did the United States Justice Department. It does not have the power to oversee those offices.
Consequently, regardless of how abusively Manhattan district attorney Alvin Bragg has wielded his law-enforcement powers within the parameters of his jurisdiction, if he has not attempted to interfere directly in the legitimate operations of the federal government — and he has not — then House committees have no business demanding that he appear before them and explain himself.
Yet that is exactly what former president Donald Trump’s House Republican myrmidons are doing.
As our Jeff Zymeri reports, Representatives Jim Jordan (R., Ohio), James Comer (R., Ky.), and Bryan Steil (R., Wis.) — the chairmen, respectively, of the Judiciary, Oversight, and Administration Committees — have fired off a letter to Bragg, demanding that he surrender documents and provide testimony about the “unprecedented abuse of prosecutorial authority” they believe he is about to commit by indicting Trump. Such an indictment, they claim, will “erode confidence in the evenhanded application of justice and unalterably interfere in the course of the 2024 presidential election.”
Right now, with the progressive, Democratic Bragg readying an indictment of Donald Trump in what appears to be a partisan prosecution of a trivial, stale transaction that he plans to inflate into a felony case, the most powerful argument the former president has in his favor is that Bragg is politicizing law-enforcement power. About the dumbest thing Trump’s congressional allies could do, then, is to politicize the administration of justice themselves, by flouting the Constitution’s separation of federal and state power in demanding that Bragg testify before them.
This is a wayward move, constitutionally and politically.
Does your memory stretch back to those halcyon days, maybe ten minutes ago, when Republicans used to believe in federalism? Well, those days are apparently gone. In their letter, the GOP chairmen highlight the federal dollars Washington sends to states as a pretext to claim federal dominion over state agencies and officials — just like good progressive Democrats.
Look, if federal lawmakers are foolish enough to send taxpayer dollars to state prosecutors, knowing full well that — unlike federal prosecutors — they are elected officials who have a powerful motivation to corrupt law-enforcement with their partisan agendas, that is their own fault. They should shut the spending spigot, by all means. Republican-controlled House committees, however, have no more authority to subpoena state officials regarding their wielding of state power than the Democrat-controlled New York state assembly would have to subpoena the United States attorney general — or, for that matter, to subpoena the Republican committee chairmen who are presuming to insist on Bragg’s appearance.
Moreover, while Bragg’s partisanship is patent, that does not mean all investigation and prosecution of Donald Trump would be an abuse of prosecutorial power.
Here, the appearance of Republican lawmakers exploiting their power in the service of Trump-campaign tropes is unseemly. As Jeff’s report notes, Trump took to his social-media platform over the weekend to howl that “Alvin Bragg should be held accountable for the crime of ‘interference in a presidential election.’” One would think that the chairmen of House committees (and especially the chairman of the Judiciary Committee) would grasp that there is no such crime — and that, if there were such a crime, then their own scrutiny of the Biden family’s lucrative commercial relationships with corrupt and anti-American foreign regimes would constitute the very same crime. Yet rather than distance themselves from Trump’s rant, the GOP chairmen echo it, insisting that Bragg must be called to account lest his actions “unalterably interfere in the course of the 2024 presidential election.”
In the court of public opinion, Bragg should be condemned for interfering in a presidential election — but only because he doesn’t have a compelling case involving a serious crime he can prove with clear-cut evidence, not because Trump is a presidential candidate.
Politicization is a constant concern when a politician of one party is being investigated by law-enforcement officials of the other party. Legitimacy, however, always boils down to whether there is an egregious violation of the law at issue. No one is above the law, including presidents and presidential candidates.
That said, it is also true that prosecutors exercise discretion all the time to refrain from investigating and charging cases, even those in which crimes may have been committed, if there are public interests that outweigh the need for prosecution. We are a self-determining democratic republic, so it is a high public interest to minimize law-enforcement intrusion into electoral politics — something we should have learned over the last eight years, when the FBI put its thumb on the scale in consecutive federal election cycles.
Still, just as we don’t want law-enforcement officers deciding elections, neither can we abide the transformation of political campaigns into a get-out-of-jail-free card for lawbreakers. The rule of reason applies: There should be no trivial, nakedly partisan prosecutorial forays of the type Bragg is contemplating; yet, when there is significant evidence that a candidate has committed a serious crime, that has to be examined — indeed, a failure to examine it would be an inexcusable elevation of partisan politics over the rule of law.
Hillary Clinton’s email scandal merited examination because it was a serious abuse of power and compromised national security. (My dim recollection is of congressional Republicans’ complaining that prosecutors from the Democratic administration were not investigating it aggressively enough — they didn’t seem too concerned about “unalterable interference” in the 2016 campaign). The claim that Donald Trump was a clandestine agent of Russia was false; but if there were strong evidence that a presidential candidate was beholden to an anti-American foreign power, it would be not only appropriate but imperative that both law-enforcement agencies and Congress conduct investigations. Presumably, this need to prevent the foreign corruption of presidential power is exactly why Comer is leading the House Republican probe of the Biden family’s business of cashing in on its patriarch’s political influence.
Similarly, the investigation of Trump’s hoarding of classified intelligence at Mar-a-Lago and his potential obstruction of the investigation into that fiasco are legitimate, as are the investigations of whether Trump obstructed the January 6 joint session of Congress and whether he engaged in illegal activity in seeking to overturn the 2020 election. Biden’s illegal mishandling of classified intelligence and the alarming specter of his influence-peddling also warrant investigation. It is all well and good to take care that such investigations are not politicized — i.e., that any crimes charged are supported by very convincing evidence and would be brought against any other American in analogous circumstances. But persuasive evidence of substantial offenses merits law-enforcement attention, even if the fact of investigation or prosecution could influence the outcome of an election.
It is a profound mistake for congressional Republicans to convert their public offices into Donald Trump’s campaign council and defense counsel. It is asinine for them to suggest that investigations of presidential candidates are per se abusive while simultaneously stepping up their investigations of the Democrats’ presumptive 2024 nominee, President Biden. And it is unconstitutional for them to claim general supervisory authority over state and local prosecutors.