Power Grab

by Jason Chaffetz

  Our pursuit of that investigation was driven by evidence and guided by the next sign of a credible investigation—a search for legislative solutions.

  Question 2: Is the End Goal to Find a Legislative Fix?

  Congress is a lawmaking body. As discussed in the previous chapter, its oversight role is to evaluate and investigate the federal government for the purpose of proposing systemic changes. We have Supreme Court precedent setting forth this restriction on oversight. It is done for the purpose of informing legislation.

  If Congress wants presidential candidates to disclose their tax returns, Congress can make a law that applies to all candidates. If Congress doesn’t like a president declaring national emergencies to access funding, Congress has the power to change the law. If Congress is worried that Russians might meddle in our elections, Congress can appropriate money for cybersecurity efforts or enact security provisions such as voter ID.

  None of those things are happening. Why? Because the House majority is only focused on this president. At best, they are not considering the long term. At worst, they want to limit this president without constraining a future Democratic president.

  The first high-profile hearing of the new Democrat-run House Oversight Committee in February 2019 was a case study in oversight gone out of bounds. The witness, former Trump personal attorney Michael Cohen, had never worked for the executive branch. He was a private citizen. There was no pending legislation to which his testimony could have been relevant. The hearing was simply titled: “Michael Cohen, Former Attorney to Donald Trump.” What else could they call it? It served no legislative or oversight purpose.

  By contrast, Oversight Committee Republicans made sure even our most politically contentious investigations during my tenure were on solid jurisdictional grounds. That was very important to me as oversight chairman.

  Both the Benghazi terror attack and the subsequent email scandal of Hillary Clinton involved wrongdoing within the executive branch and the potential failure of laws we had passed to protect our overseas employees and our classified information. You can go down the list—everything from IRS targeting to Fast and Furious gunrunning and from DEA prostitution scandals to Secret Service security failures—it’s all executive branch malfeasance. Those investigations fell squarely within the committee’s jurisdiction as they all involved the actions of executive branch officials within the context of their work for the government and for the purposes of considering legislation. By contrast, Michael Cohen was neither a government actor nor a person who could inform legislation. There was some attempt to argue that Cohen’s testimony of a hush money payment to porn star Stormy Daniels might be considered a campaign contribution and thus have a tenuous link to something government related.

  Of course, when Democrats were in the minority, they would have used a different argument to delegitimize a witness like Michael Cohen. If we ever called a witness who was also a witness in an ongoing third-party investigation, committee Democrats would always object, arguing that we could not possibly intervene with an ongoing investigation. They would say, Let them do their work! Let them finish their job!

  They don’t seem to feel that way anymore. Michael Cohen is reportedly under investigation for possible bank fraud, among other things. But suddenly Democrats have had a change of heart about interfering with ongoing investigations. They called on Cohen to testify in both open and closed hearings on Capitol Hill.

  Too much of the oversight the House has embarked upon since Nancy Pelosi took the gavel falls outside Congress’s legal jurisdiction. We’ve already discussed why real oversight of executive branch agencies—and the federal employees who operate them—is unappetizing to a party dependent on federal employee support and funding. More appealing to Democrats is the weaponization of oversight against people and entities outside of government.

  This overreach won’t stop at targeting private citizens who happen to be in President Trump’s orbit. The new House majority’s agenda is much broader and much more disturbing. The next step will be the usurpation of prosecutorial power from the executive branch to go after private sector companies and individuals. This is something Democrats have been chomping at the bit to do for as long as I was in Congress. They want to use the oversight authority to punish and embarrass private entities who come in conflict with the goals of the Democratic agenda. That could be anything from gun manufacturers to bakeries. Or, as freshman representative Alexandria Ocasio-Cortez suggested, financial institutions that loan money to projects of which she disapproves. In a March 2019 hearing, Ocasio-Cortez suggested Wells Fargo should be held responsible for cleanup costs on a pipeline spill simply because the bank financed the project.

  This conflict came up numerous times during my chairmanship. For example, both parties have serious concerns about high-priced pharmaceuticals. Specifically, we were concerned about the inexplicable price gouging for common drugs such as EpiPen and insulin. Chairman Cummings has justifiably made this issue one of his first oversight investigations as chairman. But his approach to the problem is to focus on the private sector while ignoring the government’s role in the crisis. This is a waste of his committee’s resources because the government side of the equation is the one he can most directly and powerfully influence.

  The Specific Legislative Decision Standard, articulated in several important Supreme Court cases, limits congressional oversight authority to areas upon which Congress can conceivably legislate. In Barenblatt the Court held:

  With regard to oversight of the private sector, the court held in U.S. v. American Tel. & Tel. Co (1976) that “Congress is not invested with a ‘general power to inquire into private affairs.’ [The subject of any inquiry always must be one] ‘on which legislation could be had.’”

  Sadly, congressional committees that perform oversight do not have a strong record of using information from investigations to craft legislative solutions. When I was chairman of the Oversight Committee, I wanted to change that. It can be done.

  We successfully passed substantive bipartisan legislation as a result of our oversight work. For example, after a deep dive into the Freedom of Information Act, we were successful in pushing significant reforms all the way to President Obama’s desk, where he signed them into law. As a result of our scrutiny of the Secret Service, the committee issued dozens of recommendations that ultimately resolved some of the problems plaguing the agency. We further legislated personnel reforms that addressed attrition problems that had contributed to the agency’s failures. After several of our investigations revealed inspector generals were having difficulty gaining agency cooperation to access documents, we passed legislation beefing up their ability to get access to agency records and grand jury materials relevant to their oversight investigations.

  If you want to measure the effectiveness of congressional oversight, a good place to start is by assessing the real legislative outcomes of high-profile hearings, not only in the House Oversight Committee, but in Judiciary, Intelligence, Financial Services, and any other committee engaged in an oversight role. Given what I’ve seen thus far, my guess is that with Democrats running the show, you won’t find much. The best opportunities for reform are within the government agencies themselves. But this Congress will be more focused on private companies and individuals.

  There is a way to address the pharmaceutical pricing problem without creating unprecedented new ways for government to usurp freedom. We simply have to address the incentives that the government puts in place and to which free markets respond.

  My approach to this problem was to bring in Martin Shkreli (aka “Pharma Boy”), former CEO of Turing Pharmaceuticals, and get him on the record to testify about the ways in which he was exploiting the government’s slow, costly, and prohibitive approach to generic drug approvals. The government’s role in the process was something that was within the committee’s jurisdiction.

  When you watch the hearings Democrats are now doing with regard to pharmaceutical pricing, do
you see them bringing in any government witnesses? Do they even have anyone on the panel from a government agency? The Oversight Committee’s January 29, 2019, hearing had not a single government witness.

  Whenever Congress holds a hearing, we should be asking ourselves: What legislation do they hope will arise from the information learned in this hearing?

  Question 3: Is the Target the Government?

  The tools of oversight were given to Congress in 1814 for a specific purpose—to check the spending and management of the federal bureaucracy. Rooting out waste, fraud, and abuse is a job Congress was designed to do. On my committee, we could have kept three committee staffs busy with just the investigative tips we received from whistle-blowers, audits, and OIG reports. There is that much.

  The most valuable oversight happens when we undertake programmatic reviews of government operations. This type of work doesn’t give us a YouTube moment or get our names in the headlines. But diligent work on government programs can lead to legislation that creates real results for the American people. That’s what they elected us to do. That’s what we give up when we allow the political opportunities to overshadow our legislative responsibilities.

  Let me share an example of the kind of productive oversight that can happen when the committee is focused on doing its job. In 2016 the committee was approached by a whistle-blower for the highly secretive Federal Air Marshal Service. This person made an allegation about a scheme by a senior employee to manipulate sky marshal flight schedules to facilitate rendezvous with illicit lovers in high-demand vacation destinations. It turned out someone was scheduling optimal flights and then “accidentally” missing the return flights so they could have extended weekends in places like Miami, Honolulu, and other desirable locations.

  For example, they might be scheduled on a flight from Los Angeles to Honolulu and the next day from Honolulu to Chicago. But they would somehow miss that flight back to Chicago, and the next available flight with an open sky marshal position on it would be three days later. That meant they would just have to spend four or five days in Honolulu. We discovered a staffer who had some say in the scheduling and who was allegedly somewhat of a sexual predator in that this person tended to have affairs with a variety of coworkers, many of whom were married. The individual was in a powerful position to dictate who went where and when. It had finally reached a point where one brave whistle-blower stepped up because the person wouldn’t stop.

  As a committee, we quickly engaged in a bipartisan way to work with the agency’s inspector general. That investigation led us to look more broadly at the whole program and how it worked. It’s obviously shrouded in secrecy, but our investigation raised important questions about how the program worked and what was going on. Was it a worthwhile program? As a result of our investigation, the agency implemented some changes with regard to personnel and processes. No hearings were held. No news stories were written. But the investigation effected real change. Within the scope of our mission, we looked at how taxpayer dollars were being spent and created some accountability within that department and agency. DHS management was very responsive to the work we were doing with them. It was a very positive experience.

  I worry that under Democratic leadership, the committee will be so distracted with all things Trump that this type of oversight just simply won’t happen. It’s now the House Oversight and Reform Committee. Will they make any effort to reform government that does not benefit their political warfare? The ratio of Oversight staff to government employees is already pitifully small—there are some sixty or so people staffing the committee majority and another thirty in the minority. Put that up against 2.2 million federal employees. It may be the second-largest committee in the House, but it is still minuscule compared to the breadth of the $4 trillion going out the door each year to fund the government.

  If you’re spending money and dedicating personnel to sift through the Trump Hotel guest list and see who spent how much on a minibar—what are you missing? This goes to the heart of a committee that takes out the word government because they don’t think there is anything to look at there.

  Chapter 9

  Real Reform Loses to Political Theater

  If we want different results from Congress, we need people in positions of power who are willing to be part of the solution, not part of the problem. And to do that, we need to expand the definition of what it looks like to be a solutions-oriented politician. We often look to the lawmaking function to see who has solutions. But anyone can introduce a bill, or sign on as a cosponsor. In reality, most bills go nowhere. The ones that do get heard are chosen by party leadership. That’s why party has come to matter so much in American elections.

  A better way to evaluate the commitment to finding solutions is to look at the results of oversight. Is there a real effort to solve the problems uncovered by congressional, inspector general, or auditing oversight? Do those problems get ignored, or even denigrated? Or is there a genuine effort to make changes to the systems that produced them?

  For a party invested so heavily in marketing government as the solution to every problem, the Democrats have been strangely reluctant to take advantage of opportunities to build trust in the institutions of government. Instead of demonstrating the ability to crack down on abusive behavior, they have excused it. Then they wonder why Americans might be reluctant to turn the one-sixth of the United States economy related to health care over to a federal bureaucracy that too many lawmakers pretend is exempt from oversight.

  If there is one thing that became patently obvious during the Mueller investigation, it was that the bureaucracy—the Deep State, if you will—operated with very few constraints. They were virtually above oversight. We had the FBI trafficking in unsubstantiated rumors and opposition research, lying to the FISA court, entrapping administration officials, and engaging in unauthorized leaks. We saw widespread use of personal email and text messaging to conduct off-the-record government business. In response, we had Democratic leaders like Chairman Nadler falling all over themselves to excuse that behavior.

  Because Congress has thus far failed to use the lessons of the Mueller investigation to demand better accountability measures within the Justice Department, it has only further undermined public trust in federal law enforcement. We will never solve problems we don’t acknowledge.

  The truth is, Democrats have before them historic opportunities to restore public trust in government. They could theoretically steal President Trump’s thunder by solving the problems he will campaign on. In doing so, they could demonstrate competence, discretion, and the ability to enact substantive reform. So far, they have shown little interest in such a strategy. The missed opportunities are piling up.

  Preserving Government Records and Accountability

  The problem of government employees using off-the-record communication to bypass federal records laws, though heavily exploited by the Obama administration, is not unique to Democratic administrations. It’s a proliferating problem that legitimately needs to be addressed. Yet Democrats have not only failed to address solutions, they have mocked the problem and ignored the bias that prevented the FBI from prosecuting it.

  In June 2018, Justice Department watchdog Michael Horowitz released an OIG report on his review of fired FBI director James Comey’s handling of the Clinton email investigation. Horowitz determined that the FBI director’s actions were “extraordinary and insubordinate” in violating the department’s norms.

  The OIG report’s overall findings were damning to the credibility of the FBI. The report documented preferential treatment of Hillary Clinton and her lawyers, widespread leaking throughout the agency, and potential bias. In particular, the report called out Peter Strzok, who would play prominently in the early Mueller investigation.

  “We did not have confidence that Strzok’s decision to prioritize the Russia investigation over following up on the midyear-related investigative lead discovered on the Weiner laptop was free from bias,” the repo
rt said, referring to sensitive materials found on the laptop computer of disgraced congressman Anthony Weiner. Weiner was married at the time to Clinton aide Huma Abedin.

  More critically, the report addressed the use of private email accounts and cell phones to conduct official government business. This problem went all the way to the top of the executive branch. Even President Obama had used Secretary Clinton’s private email address to communicate with her. The revelation that even the highest level of leadership in federal law enforcement was bypassing government records laws indicated a serious accountability problem with implications far beyond one candidate or one presidential election.

  Instead of using the opportunity the OIG report presented to address the widespread use of private email communication, many high-ranking Democrats actually mocked the allegations. A popular meme developed on the left to undermine any legitimate concerns about public records abuses. “But her emails” became a rallying cry by the resist crowd to minimize the significance of Deep State secrecy. Even Hillary Clinton herself, in response to the OIG report’s finding that Comey had used his personal email account for government business, tweeted the finding with her own comment: “But my emails.”

  There was no acknowledgment of a problem—much less any attempt to find a solution. This wasn’t just about Hillary Clinton’s yoga emails. In her case, we were talking about information so sensitive that only a handful of people in the world were allowed to see it. Information that put lives at risk—that, if made public, could get people killed and operations compromised. Keep in mind, you can’t just forward classified emails from one account to another. You use different hardware, different software, and you usually view it only in secured facilities. It is not easily transmitted.