Power Grab

by Jason Chaffetz

  Thus far, the Democrats can only wish the results of the election-year witch hunt into President Trump had produced as much evidence of wrongdoing as that Fast and Furious investigation did. Even the vaunted special counsel investigation turned up less substantive evidence of wrongdoing than we found in just that one Obama-era investigation of the gun-walking scandal. It’s safe to say Democrat committee chairmen appear to have overcome their objections to witch hunts, fishing expeditions, and obsessive investigations.

  Crying Wolf: False Investigations

  Further undercutting the credibility of legislative branch oversight is the pursuit of false claims and meritless investigations. It doesn’t take many to convince the public that oversight is not credible.

  We all saw what happened when the Justice Department announced prior to the release of the Mueller Report that there would be no indictments of Trump campaign operatives for Russian collusion. This came as an obvious shock to anyone who had been listening to Intelligence Committee chairman Adam Schiff’s assurances over the previous year. He had seen the evidence himself, so he said. Even after the vast resources of the special counsel had exhausted every possible lead and come up empty, Schiff continued to insist the Mueller investigation had gotten it wrong. Schiff has indicated this is a hill he’s willing to die on, undermining the legitimacy of the congressional oversight he oversees. The price is one he (and we) may have to pay.

  The staff of the House Oversight Committee is fewer than one hundred people. Other committees are even smaller. The resources are simply not sufficient to pursue every potential investigative lead. That means the chairman has to pick his battles. Schiff has proven he’ll choose the battle with Donald Trump every time. There is no rumor too speculative, no allegation too unfounded to attract the attention of the many committees itching to investigate the Trump presidency.

  Before Donald J. Trump was even sworn in as America’s forty-fifth president, Democrats began demanding that the Oversight Committee do to Donald Trump what they perceived we had done to Hillary Clinton. In their view, our attempts to investigate her email server during a presidential campaign were a political stunt. They wanted similar “stunts” aimed at Donald Trump.

  My colleagues on the other side of the aisle had tremendous faith that there would be evidence—if we would just search for it. But when I did open investigations, there was nothing there. In the months before I left Congress, we opened several investigations into allegations Democrats made against Donald Trump.

  For example, just a month after President Trump’s inauguration, various outlets reported on a photo posted to social media by a member at Trump’s Mar-a-Lago resort in Florida showing the president, top aides, and Japanese prime minister Shinzo Abe looking at a computer screen. The New York Times alleged, “President Trump and his top aides coordinated their response to North Korea’s missile test on Saturday night in full view of diners at Mr. Trump’s Mar-a-Lago resort in Florida—a remarkable public display of presidential activity that is almost always conducted in highly secure settings.”

  The social media post had not mentioned the North Korean missile test, but the article drew the conclusion based on the fact that shortly before the photo was posted, North Korea had test-fired a ballistic missile from its coast. Other outlets claimed cell phone lights had been pointed at sensitive documents during the briefing in “full view of fellow diners.”

  The story was widely picked up by news outlets around the world.

  Immediately, Democrat politicians jumped on board to condemn the president, with Nancy Pelosi telling the Times, “There’s no excuse for letting an international crisis play out in front of a bunch of country club members like dinner theater.” Senators Tom Udall and Sheldon Whitehouse said in a statement, “This is America’s foreign policy, not this week’s episode of ‘Saturday Night Live.’”

  Unlike so many of the wild allegations against the new president, this one at least had a photo. On that basis, I went ahead and launched an investigation. The media covered that, too. What they didn’t seem to want to cover was the inconvenient result of that investigation.

  The investigation revealed that no classified documents were reviewed at that time, nor was classified information discussed. Nothing the president does in that setting is off-the-record. Every email sent, every word said, and every website visited can be validated. I ultimately went to the White House to receive a classified briefing. Ranking member Cummings chose not to join me, but he did send staff to receive the briefing.

  As I recall, it turned out that newly minted President Trump and the Japanese prime minister were looking not at classified information, or even foreign policy information, but at pictures of Prime Minister Abe’s father playing golf decades earlier. Does anyone remember seeing that reported in the media? Probably not. But the allegations themselves and the fact of my opening an investigation were broadly reported, fanning the flames of anti-Trump sentiment for several weeks. When the story turned out to be false, no one was interested in writing about that.

  Was it legitimate to ask the question? Sure. But the breathless response and immediate condemnation were all about setting a political narrative—one that turned out to be false. I continued to receive pressure to open investigations into similarly unsupported allegations.

  None of those early allegations against the president produced a shred of real evidence. There was a lot of speculation. But I wasn’t willing to open investigations based on nothing more than speculation. I had not done so against Democrats and would not do so against Republicans, either. All of that has changed now that Democrats run oversight.

  We never did open an investigation into the Russia collusion allegations, because at that time there was no evidence on which to base such an action, only speculation and the wild conjecture that he must have done something illegal or he wouldn’t have won.

  Breaching the Constitutional Limits of Oversight

  As political opposition research activities morph into full-scale congressional investigations across multiple committees, it’s fair to wonder what the actual constitutional limits of oversight are. What will happen if the Democrats breach them?

  In truth, congressional oversight authority is broad—as it should be. However, despite the widespread belief in Congress that the oversight role is boundless, the Supreme Court has not agreed. The primary role of Congress is quite clearly to legislate. Over time, the courts have rightly interpreted that role to include an oversight component. But the purpose of congressional oversight is to provide oversight of government expenditures and to inform pending legislation. In that role, Congress is able to obtain documents and testimony from the executive branch specifically for the purpose of informing the lawmaking process.

  Back in 1957, the Supreme Court addressed the limits of congressional oversight authority clearly. In response to a subpoena, John Watkins testified and answered questions before the House Committee on Un-American Activities. Watkins was asked whether certain other named individuals were members of the Communist Party.

  In refusing to answer, Watkins told the committee, “I do not believe that such questions are relevant to the work of this committee, nor do I believe that this committee has the right to undertake the public exposure of persons because of their past activities.” That answer resulted in Watkins being convicted of contempt of Congress. In the ensuing court case, Watkins v. U.S., the Court addressed the limits of congressional oversight jurisdiction, holding:

  The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possible needed statutes. . . .

  But, broad as is this power of inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress. . . .

  No inquiry is an end in itself; it must be related to and in furthera
nce of a legitimate task of Congress.

  A subsequent 1959 Supreme Court ruling dealing with that same House Committee on Un-American Activities set broad, but clear parameters for congressional oversight. The Court in Barenblatt v. U.S. ruled:

  Broad as it is, the power is not, however, without limitations. Since Congress may only investigate into those areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive province of one of the other branches of the Government. Lacking the judicial power given to the Judiciary, it cannot inquire into matters that are exclusively the concern of the Judiciary. Neither can it supplant the Executive in what exclusively belongs to the Executive.

  When you look at the areas in which the House Oversight Committee has primary jurisdiction to make law, it’s easy to understand why Democrats beholden to the civil service would prefer to gravitate to private sector work. Consider how difficult it will be to legislate only in the areas of the committee’s primary jurisdiction and still hold harmless the federal employees and federal unions that fund the Democrat Party. The House Oversight and Reform Committee is responsible to vet laws that apply to:

  Federal civil service, including intergovernmental personnel; and the status of officers and employees of the United States, including their compensation, classification, and retirement;

  Municipal affairs of the District of Columbia in general (other than appropriations);

  Federal paperwork reduction;

  Government management and accounting measures generally;

  Holidays and celebrations;

  Overall economy, efficiency, and management of government operations and activities, including federal procurement;

  National archives;

  Population and demography generally, including the census;

  Postal service generally, including transportation of the mails;

  Public information and records;

  Relationship of the federal government to the states and municipalities generally; and

  Reorganizations in the executive branch of the government.

  How hard is it to make laws in these areas that do not require anything inconvenient of federal employee benefactors?

  No doubt there will be some lawmaking in these areas—but only to the benefit of the Democratic Party and its political donors at public employee unions. Instead of civil service reforms that promote accountability or empower managers to root out bad actors, expect to see Democrats tighten restrictions on disciplining or terminating federal employees.

  One area where we may see some legislation movement is the census. This is one area that impacts elections and campaigns. Oversight Committee member Carolyn Maloney, a New York Democrat, introduced legislation restricting the census from collecting relevant information about citizenship. After all, the census can ask you how many toilets you have in your home, but Democrats consider it an invasion of privacy to ask if someone is here legally. Maloney says, “Every person must be counted.” But no one is suggesting illegal immigrants not be counted. In fact, I believe Republicans are even more interested than Democrats in learning just how many people live in this country illegally. Accurate information about immigration could even hurt Democrats’ 2020 election narratives. What Maloney wants, and what her party wants, is to count them for purposes of representation, thus ensuring that sanctuary states and cities are overrepresented in Congress.

  In attempting to repurpose the tools of oversight for investigations of political targets and private entities, Democrats lose opportunities to legislate solutions and address the waste, fraud, and abuse that are inevitable in any large bureaucracy.

  What’s the Solution?

  The answer to the problems plaguing congressional oversight is not less oversight. There is a right way and a wrong way to react to an oversight investigation.

  For Republicans, we must resist the temptation to assume every investigation is politically motivated. Instead, we must demand evidence and act on principle. If legitimate wrongdoing is found, we ought to quickly acknowledge it and demand accountability.

  The correct response to oversight from an administration is to be open and transparent, to signal to the federal workforce that inappropriate conduct will not be tolerated, and to work with Congress on legislative remedies to any wrongdoing uncovered. By handling the legitimate investigations in such a way, the administration retains greater credibility to fight any illegitimate or politically motivated investigations.

  Not every investigation is legitimate. When the outcome of an investigation is predetermined, when the facts amplified are driven by personal agenda and political narratives, and when the target of the investigation is conveniently a political opponent, congressional oversight is undermined.

  Does that happen? Unfortunately, it does—as we’re about to see.

  Chapter 8

  Outcome-Driven Investigations

  Unbeknownst to incoming House Judiciary Committee chairman Jerry Nadler of New York, the woman sitting near him on the Amtrak Acela train just days after the 2018 midterm elections knew exactly who he was. She knew the responsibilities that would soon be his. With Democrats having flipped the House two days earlier, Nadler would take the gavel of the committee with jurisdiction over the Justice Department, putting him in prime position to investigate President Donald Trump.

  As Nadler rattled off plans in phone call after phone call during that November 7, 2018, train ride from New York to Washington, D.C., Federalist reporter Mollie Hemingway was taking notes.

  In a phone call with a friend whom Hemingway did not name, Nadler discussed two strategies for investigating Supreme Court justice Brett Kavanaugh, whose nomination to the Court had been confirmed the previous month. There was no new information at the time, but this wasn’t good enough for Nadler, who must have known Kavanaugh investigations would whip up the base and drive fund-raising.

  The first option, Hemingway reported, was to go after the FBI for mishandling the Kavanaugh background check. Oversight of the FBI rests with the House Judiciary Committee, making them an easy target.

  The second strategy was to go after Kavanaugh for allegedly committing perjury. Nadler went on to describe a widely reported and now debunked perjury allegation that had Kavanaugh giving an incorrect answer about when he learned of allegations against him by Debra Ramirez. Ramirez’s claims were never verified and, in fact, were contradicted by her own witnesses.

  What’s notable—and chilling—about this exchange between Nadler and his unnamed friend is the focus on the outcome rather than the problem. That is not how the oversight process is designed to work.

  Yet here was Nadler, strategizing how to build an investigation around a desired outcome. Not a legislative outcome, but a political one.

  When I first read Hemingway’s story, I wanted to give Nadler the benefit of the doubt: to believe that perhaps he was genuinely concerned about Kavanaugh’s fitness for office. Perhaps he was. But there is no escaping the rank political gamesmanship revealed by this conversation.

  There was more.

  Nadler went on to acknowledge that the plan to target Kavanaugh with investigations might fail. Hemingway overheard Nadler say, “The worst-case scenario—or best case depending on your point of view—you prove he committed perjury, about a terrible subject and the Judicial Conference recommends you impeach him. So the president appoints someone just as bad.” The implication here is that they would have impeached Kavanaugh for nothing. The ends might not justify the means.

  Apparently, the recipient of Nadler’s suggestion told him impeachment might still be worthwhile because a new president in 2020 could nominate someone else. There’s that political outcome again. But Nadler knew better. He responded that this investigation couldn’t be dragged out long enough to get the desired outcome. “There are a finite amount of witnesses. I don’t see why it should take long at all,” he reportedly said.

  Can there be any doubt what Nadler was
trying to accomplish? This conversation was not about finding truth, or legislating solutions, but about removing a political obstacle. If this conversation is accurate, Nadler’s goal appeared to be based in rank partisanship. He wanted to reverse the appointment of a Trump nominee to the Supreme Court.

  Kavanaugh wasn’t Nadler’s only target that day. As Hemingway quietly tuned in, Nadler went on to discuss his party’s plans to impeach the president of the United States. The Mueller investigation of the Trump campaign was the centerpiece, but Nadler said those investigations would be framed in the context of holding Trump accountable since that argument is more palatable to the public than impeachment. According to Hemingway’s reporting, Nadler said Democrats would go “all-in” on the Russia conspiracy, with incoming Intelligence Committee chairman Adam Schiff, a California Democrat, taking the lead.

  For his part, Nadler vehemently denied Hemingway’s account, with a spokesman calling it “an absolutely false and deliberately inaccurate report.” The truth of that statement would have to be measured by Nadler’s actions once he assumed the gavel.

  These conversations rightly provoked outrage. Nadler didn’t even seem to make a pretense of objectively seeking truth. Outcome-driven investigations are an egregious abuse of power. He is focused on what he needs to prove to get the outcome he seeks. The establishment of guilt or innocence seems secondary.

  Nadler comes off as a man whose mind is made up, like someone who doesn’t need evidence, nor particularly care where it leads. He will search for something to satisfy the skeptics. But he comes across in this conversation as a man who has already decided what the facts will conclude and who is interested only in evidence to support those conclusions. Asked by ABC News’ George Stephanopoulos if he believed the president had obstructed justice, Nadler in March 2019 replied, “Yes, I do. . . . It’s very clear that the president obstructed justice.” At this point, he had only been chairman for a few weeks. The summary of the Mueller Report had not yet been released. He had not had time to launch and complete an investigation. Yet he already knew what the outcome was going to be. And he was wrong.