Power Grab

by Jason Chaffetz

  He isn’t the only one.

  Pelosi has inexplicably stacked the Oversight Committee with members from districts with heavy concentrations of federal employees. Doesn’t it seem strange that the Democrats would choose people to oversee federal mismanagement who are beholden to the very people they must hold accountable? If you really want effective oversight, wouldn’t you choose someone less vulnerable to such conflicts? You would if you actually intended to conduct effective oversight of the federal employee population.

  For example, the Government Operations Subcommittee, which traditionally investigates much of the wrongdoing by federal employees, is now chaired by Virginia representative Gerry Connolly, whose 11th District has more federal employees than any other district in America, save Washington, D.C. (whose delegate in Congress, Eleanor Holmes-Norton, incidentally also serves on the Oversight Committee). Connolly literally cannot win reelection without the support of federal employees. His donor list reflects this reality, with public sector unions consistently numbering among his top contributors.

  Why is he the man Democrats chose to investigate the operations of the federal government? Because when it comes to the federal employees who predominantly vote Democrat and whose unions donate richly and almost exclusively to her caucus, Speaker Pelosi doesn’t want Connolly there to play offense. He’s there to play defense. We’ll still see him play offense—against President Trump and his appointees. He’ll be aggressive and persuasive on those issues. But we won’t see him go anywhere near the systemic problems in the civil service.

  In my experience, Connolly was sympathetic to individual cases of wrongdoing brought up by Republicans. He was not happy about Environmental Protection Agency employees who spent hours of every day watching porn on their office computers or National Park Service managers who sexually harassed women they supervised. But he was never interested in systemic solutions like giving agencies more power to fire the bad apples in their ranks, nor was he one to draw attention to such cases. I don’t see him using his authority to shine a light on situations that might reflect poorly on federal employees. Fearful of upsetting federal employee unions, he will handle the civil service with kid gloves.

  I learned during my tenure that there is no such thing as an offense committed by a federal employee that is severe enough to rattle federal employee unions. They will simply never concede that behavior of one of their members rises to a level justifying rule or policy changes. Connolly will never cross those unions.

  Lying in a Bed of Their Own Making

  We may actually see some chickens come home to roost for congressional Democrats after they stood against their own institution during the Obama administration. They stood by supportively while the Obama administration ran roughshod over our congressional subpoena authority and while it invoked an unprecedented expansion of executive privilege.

  Though the Trump administration has not as yet gone to the same audacious lengths the Obama administration went to withhold information, Democrats will have a hard time enforcing subpoena compliance or piercing executive privilege without intervention from the courts, a process that could take many years to come to fruition.

  During the Obama administration, the government routinely ignored our subpoenas. They claimed executive privilege, even for documents that had never previously enjoyed such protection. When they did produce requested documents, those were often either heavily redacted or they were copies of publicly available documents we could have downloaded from a government website. They were seldom responsive to our document requests and often rejected our demands to hear from government witnesses. To remember how Democrats responded to these practices, the case of the Fast and Furious gunrunning investigation is instructive.

  Republicans in early 2011 sought records pertaining to the failed Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) program that allegedly facilitated the flow of thousands of weapons to drug cartels across the U.S.-Mexico border. The Obama administration withheld 15,000 documents, inappropriately claiming executive privilege, while simultaneously arguing the president had never been briefed on the operation. This was a completely new and expanded use of executive privilege to shield documents the president had never even seen. I believe in executive privilege, but how can it be invoked when the chief executive was not directly involved? Yet it was.

  We attempted to push back on the expansion of executive privilege and the refusal to comply with congressional subpoenas by introducing a resolution to hold the attorney general in contempt of Congress. Warning our colleagues about the future implications of this vote, we reminded them the resolution wasn’t just about Attorney General Eric Holder or Fast and Furious. It was about protecting the right of congressional committees to access documents in the future.

  When the committee voted, not a single Democrat was willing to defend our congressional subpoena authority. When the resolution went to the House floor, some Democrats actually walked off the floor in protest.

  In the floor debate on the contempt resolution, Democratic California representative Adam Schiff argued forcefully against the very position he now takes against the Trump administration. He argued:

  What we are doing today is simply a partisan abuse of the contempt power. What we do will cause no injury to the department but will cause great injury to this house. The Justice Department, after providing 8,000 documents and extensive testimony is now being required to turn over privileged materials, and like all administrations before it, it has reluctantly used executive privilege to respectfully refuse to provide materials it cannot provide.

  By June 2017, Schiff’s opinion on privilege had changed dramatically. No more was executive privilege something presidents did “reluctantly” to “respectfully refuse” to provide documents. In the heady days before the Russia collusion narrative fell apart, Schiff was anticipating a damning report from the special counsel investigation led by Robert Mueller. But there was one problem—Trump could legitimately use executive privilege to shield the report from public view.

  Suddenly executive privilege became a relic that needed to be sacrificed for the greater good of the Democratic quest for power. “Privilege cannot be used as a shield to protect or hide potential impropriety or illegality. So we may have to go to court to pierce that privilege,” Schiff told PBS.

  But wasn’t that precisely the point of Holder’s refusal to comply with the Fast and Furious subpoena? We know that it was. Details about the documents (though not the documents themselves) Holder sought to withhold were later released in response to a court order. According to a recipient of that information, Judicial Watch’s Tom Fitton, the withheld documents showed conclusively that Holder himself had directed the cover-up of the Fast and Furious scandal—personally crafting talking points and responding to congressional inquiries.

  Schiff is right—privilege should not be used as a shield to protect impropriety. But he himself is on record defending its use for just that purpose. This issue is too important to be viewed strictly through a partisan lens.

  Because of their failure to defend our institution, we now have strong precedent for an administration routinely and consistently ignoring congressional subpoenas. We have precedent for a president to use executive privilege to shield documents upon which he was never even briefed. We now have precedent for an administration to wait out the subpoenas and let Congress fight for them in court, where those disputes can languish until the scandal is ancient history and the administration has left office.

  The right of a president to withhold information from Congress through executive privilege, though not enumerated in the Constitution, dates back to the presidency of George Washington. The two branches have been fighting over it ever since, with the Supreme Court stepping in to resolve disputes. Though it’s not unusual for partisans to take a different approach to executive privilege when the opposing party is in power, Democrats now find themselves on the other side of a battle they were winning under the O
bama administration.

  The Democrats’ failure to push back against the Obama administration’s blatant attempts to shield Attorney General Eric Holder from embarrassment has set a precedent they now have to live with.

  At the time Holder refused to produce the documents, Cummings was reticent, denying that Holder had failed to comply. He instead took the position that the Justice Department was “still producing documents” long after the deadline had passed. Will he be happy to live with that precedent if the Trump administration engages in those same delay tactics?

  Now Democrats need that congressional authority they so casually ceded to the presidency. As they subpoena government witnesses in their effort to second-guess the results of the Mueller investigation, they are faced with a president who already cooperated with an in-depth investigation and is disinclined to do so again.

  An exasperated Judiciary Committee Democrat, Rhode Island’s David Cicilline, in an April interview with MSNBC, parroted Republican talking points his party had vociferously rejected during the prior administration. “First of all, Congress cannot allow the president to prevent us from oversight,” he told Hardball’s Chris Matthews in a discussion. But that’s exactly what his party did during the Obama-era Fast and Furious gunrunning operation.

  Cicilline went on to outline the options Congress has to enforce those subpoenas, telling Matthews:

  We have three things Congress can do if witnesses refuse to comply with a lawfully issued subpoena. One is, refer to the Department of Justice for prosecution because that’s a crime. We don’t have a lot of confidence Mr. [William] Barr will do that. The second is to start a civil proceeding and get a citation from the court to bring that person into contempt and do it that way. But there’s a third method we can do right away. Since 1821, the Supreme Court has recognized the inherent right of Congress to hold individuals in contempt and to imprison them. That was reaffirmed in a case in 1935. Congress has the responsibility, and I would say the obligation, to hold individuals in contempt who do not comply with a lawful subpoena, who do not produce documents, and we ought to be prepared to imprison them because we have the inherent right.

  Now he sounds like me. I also raised the question of whether Congress would have to resort to imprisonment to enforce subpoena power. I have a little bit of experience pursuing those avenues outlined by Cicilline. He is not going to be very happy when he finds out what’s at the end of each of those paths.

  Waiting for the Justice Department to prosecute itself is a fool’s errand. Cicilline admits this, saying he has no confidence Attorney General Barr would prosecute anyone for failing to comply with a congressional subpoena. He’s right. Barr probably won’t. His predecessors didn’t. And Barr has a better case for failing to comply. His agency has already conducted a full-scale investigation, with full cooperation from the president, including the waiving of executive privilege. They aren’t necessarily hiding anything from Congress. They’re simply refusing to do the same thing twice.

  Given that fact pattern, do Democrats really want to proceed to the next option on Cicilline’s list? Is this really the case Democrats want to take to court to defend congressional authority? As much as I would like to see Congress’s authority affirmed, this is not the case I would want to bet the farm on. And if they take this case before the courts and they lose, how do we recover from that? Better to take a stronger case.

  As for the imprisonment route, that is perceived as an extreme response for which there may be a political price to pay. Personally, I think they should go for it. But I have my doubts whether Pelosi’s team will be any more supportive of it than my leadership was, particularly since Democrat leadership thus far has been squeamish about pursuing limits to executive power that might apply when their own party is in power.

  They’d like to prevent President Trump from unilaterally changing immigration enforcement policies. But they are not willing to rein in the very power President Obama used to offer short-term amnesty to Dreamers through his Deferred Action for Childhood Arrivals (DACA) program. They’d love to stop the president from using his national emergency authority to build a wall, but they stop short of actually legislating away the president’s power to declare national emergencies. Likewise, I think it’s unlikely Democrats will pursue a congressional imprisonment option that could be used to give Republicans the upper hand against a Democratic president.

  They could go the route of legislating limits on executive privilege. But that, too, would cut both ways. I am a big believer in executive privilege. We want the president to get the widest perspective on anything that happens or that could potentially happen. His advisers should be able to be candid without fear that their counsel will ultimately be publicly disclosed.

  That said, I believe the Democrats were wrong to defend the abusive expansion of that privilege by the Obama administration and they would be wrong to deny President Trump the legitimate use of it today. We have to be willing to consider what is best in the long term, regardless of which party is in power. I still believe the administration cannot claim executive privilege unless the chief executive was briefed. But neither can we afford to risk destroying the protection that privilege provides.

  Going Fishing for Evidence

  Chairman Cummings, a longtime opponent of what he called congressional fishing expeditions, instituted another change to the committee that I never expected to see from him. In fact, he would have come unglued had I made the same change. Apparently Oversight Democrats are ready to put their waders on.

  I have to bring you in on a little bit of insider baseball to show how Democrats hope to expand their capacity to fish through mountains of irrelevant testimony in an effort to find that one fish that can help build a damaging narrative against the president.

  Here’s how it works. The committee will no longer defer to the wishes of witnesses or minority members to have a member of Congress present for depositions. That may not seem like a big deal, but let me show you what happens when they make that one small change.

  For every public hearing you see on television, there can be numerous private depositions that take place as part of the fact-gathering process. In the past, the minority was consulted and had the right to request that a member of Congress be present at such depositions even though staff attorneys conducted them. Witnesses could also make such a request.

  That rule meant depositions could only be conducted when Congress was in session, which limited the number of depositions that could be done. Sometimes the minority or the witness would waive that right, but I can assure you that Cummings, as ranking member, would have been very upset had we proposed such a rule change. The reason is that we could have fired up the accelerant on investigations of the Obama administration. Without a need to have a member of Congress on hand, we could have had staff doing depositions day and night, even when Congress was in recess. That rule limited the committee’s ability to go on broad fishing expeditions by interviewing an endless string of witnesses.

  Members’ time is tight, between floor votes, legislative work, meetings with constituents and lobbyists, and the necessary evil of fund-raising. When a member is required to be present for a transcribed interview, the staff has to make sure that interview is going to be worthwhile. Without that requirement, Cummings’s staff will be able to go on extended fishing expeditions without any factual evidence that the witness has something relevant to share.

  This practice also compromises the legitimacy of these interrogations. The committee’s members, not its staff, hold the constitutional authority to engage in this work. With no member present for transcribed interviews, constitutional legitimacy is in doubt. These congressional depositions carry great weight. They can also be expensive for the witness, potentially incurring significant travel costs and attorneys’ fees, not to mention damaging media attention.

  For a public company, the news that the company has even been called in for a transcribed interview can have consequences as devast
ating as anything that might be revealed in the actual interview. With the considerable expansion of the committee’s scope, Cummings has theoretically empowered his staff to impose the functional equivalent of financial fines and penalties against anyone they believe does not sufficiently align with the Democrat agenda.

  Ranking member Cummings once called the Benghazi investigation “an abusive effort” to “derail Secretary Clinton’s presidential campaign” and called for Republicans to “end this taxpayer-funded fishing expedition.” (It wasn’t one, but more on that later.)

  Nonetheless, Democrats’ aversion to taxpayer-funded fishing expeditions seems to have subsided. As Chairman Cummings told 60 Minutes in January, “we can look at anything” to get Donald Trump. That’s a far cry from 2016, when he complained in an Oversight Committee hearing on the IRS, “Unfortunately, Republicans have become obsessed with investigating any and every allegation relating to the IRS, no matter how small.” Sound familiar?

  With the shoe firmly on the other foot, Cummings came out of the gate with fifty-one different requests for documents from the Trump administration and a long list of subpoena threats. Unless there is evidence of wrongdoing, Cummings’s investigations meet the very definition of the obsessive fishing expeditions he once condemned.

  Not to be outdone, Judiciary Committee chairman Jerry Nadler, a New York Democrat, issued more than eighty subpoenas in March 2019, all seeking information targeting President Trump. Will either of them pull back because it’s an election year? To the contrary. But back in 2012, Cummings called the Fast and Furious investigation “an election-year witch hunt,” even as he acknowledged that the investigation into the botched government gunrunning operation “uncovered a pattern of problems.”