Power Grab

by Jason Chaffetz

  In the hopes of building an impeachment case against the president, Nadler and Pelosi took the unprecedented step of hiring two outside lawyers to consult with the committee staff. Though NBC reported that committee officials stressed the move was not a precursor to impeachment, the selection of anti-Trump activists Norm Eisen and Barry Berke strongly indicated a prejudged investigation was on the way. Judiciary Committee ranking member Doug Collins, a Georgia Republican, noted in a letter to Nadler that the two attorneys had already published their conclusions widely, including in a Brookings Institution report they authored before they were even hired by Nadler. The two attorneys tasked with conducting an impartial investigation wrote that publicly available evidence “strongly supports that the president obstructed justice under ordinary application of relevant criminal law.” They were not hired to investigate. Clearly, they were hired to prosecute.

  That became even more clear in early May 2019 when Judiciary Committee Democrats insisted Attorney General William Barr come before the committee and agree to be questioned by staff attorneys rather than by lawmakers themselves. Barr refused. The full redacted report had been publicly released. The unredacted report was available for members of Congress to view. He had testified before the Senate Judiciary Committee. The point of having staff attorneys interrogate and cross-examine Barr was simply to relitigate the results of the criminal probe for political purposes. Testifying before the Senate Judiciary Committee on May 1, Barr told the senators, “We have to stop using the criminal justice process as a political weapon.”

  Nadler may well believe all the allegations against President Trump are true. But given his certainty about what he will find, can we be sure he will actually recognize, accept, or even share any evidence that contradicts his narrative?

  When Truth Becomes a Casualty

  When congressional committees give in to the temptation of pursuing outcome-driven investigations, truth can become a casualty of the process. However, valid oversight is important. It needs to be done, even in an election year. Even when it benefits one party and hurts another. The fact that an investigation may be politically convenient does not necessarily negate the value of that investigation. Truth can also become a casualty when we dismiss investigations against our own party that we would pursue against the opposition party. Congress has no credibility if the only standard for pursuing investigations is political expedience.

  To get oversight right, we need to apply the same standards regardless of who is in the White House. Congress has broad authority to investigate—and it should. But all of us can benefit from recognizing the hallmarks and red flags that distinguish credible investigations from political witch hunts. Looking at these markers, we can compare the ongoing investigations into the Trump administration with those Republicans pursued against the Obama administration. It’s helpful to ask three questions to determine if an investigation is justified.

  1. Is Evidence the Impetus or the Outcome?

  First, valid investigations will be a response to evidence of wrongdoing. Outcome-driven investigations will use the investigative process to find evidence of wrongdoing. Broad document requests are the most obvious symptom of a fishing expedition looking for a specific outcome.

  2. Is the End Goal to Find a Legislative Fix?

  Second, a credible investigation will be solution-driven, not outcome-driven. The focus will be on crafting legislative remedies to the problems brought to light by the investigation. When the purpose of a hearing or an investigation is to politically embarrass someone, there will be no sign of lawmaking.

  3. Is the Target the Government?

  Third, legitimate oversight is focused on government waste, fraud, and abuse. If there is not government wrongdoing involved, Congress is overstepping constitutional boundaries. Congress is the wrong body to prosecute the wrongdoing of private individuals or companies. That is the job of the executive branch.

  Let’s apply these standards to major investigations under each administration.

  Question 1: Is Evidence the Impetus or the Outcome?

  The role of evidence should come at the beginning of an investigation. If the purpose of document requests is the pursuit of evidence, they’re doing it backward.

  The obsession of House Democrats to get their hands on President Trump’s tax returns is a compelling case study in foundation-free investigating. Congress has passed no law requiring presidential candidates to release tax returns. Candidates often do so voluntarily. But President Trump, citing an ongoing audit, has chosen not to release his.

  This choice by the president is the only real evidentiary foundation of the investigation into President Trump’s returns. Since he has, as of this writing, opted not to make his returns public, a decision I have criticized, the conclusion of Democrats is that he must be hiding something. We hear that from them a lot. This is a flimsy pretext for an investigation.

  House Ways and Means Committee chairman Richard Neal, a Massachusetts Democrat, has asked for six years of returns. His justification? “Congress, as a co-equal branch of government, has a duty to conduct oversight of departments and officials,” he said. So far so good. Congress does have that duty. If Neal believes the IRS has failed to address problems in the president’s tax returns, Neal has the authority to investigate the IRS.

  He goes on, “The Ways and Means Committee in particular has a responsibility to conduct oversight of our voluntary Federal tax system and determine how Americans—including those elected to our highest office—are complying with those laws.”

  Wait a minute. The justification is that Neal is curious about whether a single individual, a political opponent, not in government at the time, fully complied with tax laws? And he is claiming as his authority the committee’s need to determine how Americans comply with tax law? What will Donald Trump’s personal tax returns tell the Ways and Means Committee about how “Americans” are complying with tax laws? That one set of tax documents will only tell him how President Trump complied with tax laws—a question for the IRS and its auditors, not Congress. That rationale would entitle the committee to access the tax returns of any individual (or political opponent) in America for any reason or no reason.

  Even if Neal had evidence of wrongdoing on the part of the president, adjudicating that tax conflict is the job of the IRS, not Congress. When constituents approach their congressional office for help with an IRS matter, we work with the taxpayer advocate at the IRS. We don’t take that complaint to the House Ways and Means Committee, because they do not adjudicate individual tax filings. The committee’s curiosity about what is in President Trump’s tax returns is no foundation for an investigation.

  Further intensifying the fishing expedition, three House committee chairs sent a letter to the president’s financial institution in early March demanding to see anything and everything dealing with “potential foreign conflicts of interest, compliance with the foreign and domestic Emoluments Clauses of the U.S. Constitution, and any counterintelligence threats arising from links or coordination between U.S. persons and other foreign entities, including any financial or other compromise or leverage over the president and his business interests.”

  What’s wrong with that request? It describes the crimes they are hoping the president committed and then asks his financial institution to fish for documents that might support those specific crimes.

  They don’t have evidence of crimes. They want to find some. That’s not their job.

  Do we want a Congress that can choose a political target, choose a crime, and then use the force of government to compel a private financial institution to be complicit in seeking evidence against its own customers?

  Why would any financial institution compromise customer trust by complying with such a request? Possibly because the House Financial Services Committee, whose chairman—California Democrat Maxine Waters—is one of the three committee chairs who signed the document demand, has the legislative power to inflict great pain on those
very financial institutions.

  There is a reason Congress does not have law enforcement authority. Under our constitutional system of checks and balances, we separate lawmaking from law enforcement specifically to prevent just these types of abuses. The people enforcing the law should not be the same people writing the law. Yet that is precisely what Chairman Waters is attempting to do. I want to see Congress take back power from the executive branch that never should have been ceded, but this is an attempt to take power that Congress is not entitled to have. Law enforcement is an executive branch power.

  Congressional oversight is not law enforcement. It is oversight of government agencies. Congress generally conducts oversight when it receives evidence that something is not working within government. That evidence usually comes in the form of a report from the Office of Inspector General (OIG), an audit from the U.S. Government Accountability Office (GAO), a tip from a whistle-blower, or a very public government misfire. Even the most politicized investigations of the Obama era still had a solid foundation of evidence.

  In the case of Benghazi, we had two solid evidentiary leads. One was the fact that four Americans, including our ambassador, were murdered at our own facility under the protection of our own State Department. The second was information we received from a whistle-blower in my own district in Utah. Lieutenant Colonel Andrew Wood had been among the security forces sent home prematurely just weeks ahead of the attack. With his testimony, we knew the State Department had violated its own safety protocols for the Benghazi facility. That is a matter worthy of congressional oversight. I spoke to more whistle-blowers in a subsequent visit to Tripoli, where I learned that the story of the attack being peddled by the administration about an anti-Muslim video was flatly false.

  The Obama administration was either dangerously misinformed or intentionally misleading the American public. That was a matter worthy of congressional oversight. We had more than enough information to open an investigation of the State Department’s security decisions. Still, the primary investigative role rested with the executive branch. There was an internal investigation. But the results of that investigation conflicted with the evidence before Congress from whistle-blowers.

  To ignore the State Department’s role in the incident given the red flags we received from whistle-blowers and the incongruent results of the internal investigation would have been malpractice. Following the facts led us to discover major lapses in security protocol, to expose Hillary Clinton’s Accountability Review Board (ARB) investigation as a sham, and ultimately led to the discovery of a home-brew server—the contents of which can be accessed only by the owner of the server—in Hillary Clinton’s private residence containing classified information in a nonclassified setting.

  Had the ARB investigators done a thorough job instead of botching their Benghazi review, Congress wouldn’t have needed to conduct separate oversight. But we learned that the ARB investigators never even interviewed Secretary Clinton for their report. They lied about having reviewed military after-action reports, which would have analyzed what happened, why it happened, and how to prevent it from happening again. Because they didn’t ever get to the bottom of what actually happened, their report conflicted with the evidence, particularly the testimony of witnesses.

  The ARB initially reported they had reviewed the after-action reports that would have been filed in real time. We knew that couldn’t be true or their findings would have been different. When they were under oath in a public hearing, I pinned them down and got them to finally confess that they never even read the after-action reports.

  Our committee wanted to review those reports to see what the ARB had missed in its investigation. The Pentagon first refused to produce them, and then later made the incredible claim that after-action reports were never written. Still, the ARB had previously reported having read them. Every time the military does something, there is an after-action report. No one who knows how the military works could possibly believe that in the lead-up to the attack, thirteen hours during the attack, and the aftermath, not one person wrote any kind of report summarizing what happened. No one ever wrote anything down? That was a ridiculous assertion and everyone knew it. To this day, it remains a complete mystery. That cover-up was successful because the president and the lawmakers in his party refused to cooperate with the oversight process. They were more interested in protecting the president than in following the evidence.

  Incidentally, the House Oversight Committee wouldn’t have touched the Benghazi tragedy had Democrats been running the committee. From what I could see, they had no desire to conduct any investigation of that incident whatsoever. Even as evidence emerged, they continued to insist there was nothing to see. Nonetheless, we had testimony from multiple witnesses in Benghazi that the story Secretary Clinton, Ambassador Susan Rice, Vice President Joe Biden, and President Obama had peddled to the media was a fabrication.

  Given this fact pattern, we had every reason to pursue an investigation. We hadn’t completed this investigation when even more damning information about Clinton emerged.

  What became the Clinton email investigation actually began with an innocuous and unrelated Freedom of Information Act (FOIA) request. In response to that request, the State Department inadvertently released information that should not have been made public. All of this took place unbeknownst to Congress. Meanwhile, the IG for the intelligence community got involved to investigate how the State Department had released protected information. Their security protocols should have prevented that from happening.

  When investigators dove into the record preservation process at the State Department, they discovered that Secretary Clinton and her team had their own way of doing things that was incompatible with cybersecurity. They told us they found evidence that more than three hundred people at the State Department were using Clinton’s private email address to send unsecured messages to the secretary of state, creating an inexcusable security vulnerability. She had refused to participate in the secure systems put in place to protect the integrity and security of digital information at the State Department. She had her own equipment, her own server, and her own email account, and her own rules about what information would be preserved.

  Congress only learned of Secretary Clinton’s arrangement with herself when those findings were released by the IG. They didn’t come to us as a result of a broad document request fishing for crimes to prosecute. With this report, Congress began to see why we were having such trouble getting relevant documents in the Benghazi investigation. We had a very real problem with serious implications for national security. This is exactly the kind of issue congressional oversight is designed to scrutinize.

  The documents on Clinton’s server had a level of classification (SAP) far beyond anything anybody in Congress was able to review. Remember, some of that information was so classified that, even as the chairman of the House Oversight Committee, with a high security clearance, I could not see it. Yet that information was floating out there on a home-brew server.

  What I didn’t know then that has only recently come to light, through the release of testimony from FBI investigator Peter Strzok, is that Clinton’s operatives had already purged her server. Pursuant to a secret agreement with the DOJ, they were able to hold back tens of thousands of emails. I regret that the full scope of Clinton’s duplicity was not known then—and is probably still not known now. But I am proud of the evidence-based investigation we ran.

  I’m proud of the fact that I didn’t start my tenure as the chairman of the Oversight Committee preannouncing eighty-one different investigations. We let facts dictate what drew our attention.

  Contrast that with this batch of Democrat committee chairs whose goal is to, in their view, right the wrong of the 2016 election. Nadler, upon taking control of the Judiciary Committee, really did issue eighty-one document request letters to the Trump administration seeking an impossibly broad range of documents. This is a classic fishing expedition. No doubt if a sing
le document is held back, Nadler will send a tweet asking, “What are they hiding?” He sees no need for an evidentiary foundation.

  Neither do many other Trump opponents, who were calling for investigations of Donald Trump before the man was even sworn in. They believed if we looked hard enough, we would find something—anything.

  That’s not how this works.

  That’s not how it worked with Hillary Clinton, who served her full term as secretary of state before ever being formally investigated for anything. Until we had solid evidence of potential criminal wrongdoing, we left Clinton alone. Had my priority been politics, I would have called her to testify before our committee. That never happened, because it was not necessary. She only ever testified before the Select Committee on Benghazi, for good reason. She was a key witness. We were largely able to get information through private transcribed interviews to show what had happened.

  The fact that these investigations had political overtones did not automatically disqualify them from legitimacy. Inevitably some congressional investigations will become political. For example, the timing of the September 11, 2012, terrorist attack in Benghazi, Libya, happened to coincide with an upcoming presidential election just eight weeks later. That meant any investigation of the incident would be viewed through the lens of President Obama’s reelection race against Republican Mitt Romney. But that investigation was driven by an incident we did not control. We did not initiate it, plan it, script it, or collude with the media on it.