Power Grab

by Jason Chaffetz

  I had this discussion over the phone with Director Comey at the time. I remember it clearly. He explained it to me like this. He said: You can go and read hundreds of pages of communiqués that are classified. You can’t then simply take that information in your own words and retype it. It’s still classified. The content is still classified content.

  If you’ve never had a security clearance, you may not realize how difficult it is to expose classified material. It’s not as if you’re sitting at your computer and some emails are classified and others are not. The emails are on two different systems, physically separated from one another. For the ease and convenience of senior officials, it is possible to access classified information from home.

  Taxpayers had to pay to refit a Sensitive Compartmented Information Facility (SCIF) in Clinton’s home so she could review documents day and night. But she had to view them from that separate room in her home. The only way for classified emails to migrate from that secure setting was for Clinton to deliberately remove them from there—or ask someone on her staff to do so. She was so sloppy and cavalier that she created a real danger. The target of that investigation was not so much Clinton as it was the process by which she evaded critical national security protections.

  The OIG report clearly concluded that Hillary Clinton was sloppy with how she handled classified information. She used unsecured devices in foreign settings, left the door open to her secure SCIF facility, and didn’t even use a password. The bigger question I had, which has still never been answered by the State Department or Congress, is: How is it that so many people were involved in this scheme? At one point I was told by a State Department witness there were up to three hundred people involved in the trafficking of classified information in an unclassified setting.

  Secretary Clinton was fortunate that the vast majority of senior officials in the Justice Department were loyal enough to her to protect her from the legal consequences of her own behavior. For example, we know the FBI failed to investigate, much less prosecute, her for lying to Congress. Director Comey drafted a letter exonerating her for mishandling classified information before she was even interviewed by the FBI. They allowed material witnesses to act as her attorneys during questioning. Ultimately Director Comey gaslighted the public to believe that he could not prosecute breaches of classified information unless he could prove intent. Even with such favorable treatment, the truth of her actions spoke for itself.

  Has anyone been disciplined? Are no safeguards needed?

  What’s so upsetting about the cavalier approach of some House members to this investigation is the double standard. When they find a scandal that just happens to fit their political narrative, they’ll reach the opposite conclusion. Already we’ve seen complaints that Ivanka Trump used a personal email account for government business. In that case, Democrats suddenly came to believe compliance with the law was important again. This is why so many Americans have difficulty taking Democrats seriously.

  While using private email for government business is certainly inappropriate, there was no comparison between Clinton’s and Trump’s situations. Ivanka Trump reportedly used a private email for a limited time prior to receiving training about government records and submitted all relevant emails for storage as required by law. To suggest that Ivanka Trump’s limited short-term use of a private account is in any way similar to Clinton’s deliberate scheme to evade federal law and her careless exposure of classified information is a false equivalence.

  More important, some of those same people accusing Ivanka Trump were the very people laughing at the Clinton email investigation. They overplayed their hand with these criticisms, revealing their hypocrisy in their feigned exasperation. These are the very people who refused to take a systemic approach to the problem. By laughing it off and mocking it as “but her emails,” they sent the message that protecting classified information is not really that important.

  You can’t pretend to put the country’s interest first when clearly the only things you’re interested in are things that fit your political narrative. In the aftermath of the findings of classified information exposure, I saw no movement behind the scenes from anyone in Clinton’s party to fix or address the national security failings she exploited. I saw only roadblocks to getting something done.

  Supposedly the State Department itself was going to conduct an internal investigation to address the security concerns. As far as I know, no report was ever produced. The failure of Congress to ask for one is yet another missed opportunity to be part of the solution, not part of the problem. Can the State Department demonstrate to Congress what changes, alterations, improvements, or safeguards were implemented to ensure this never happens again?

  In a June 2018 hearing with Deputy Attorney General Rod Rosenstein following the release of the OIG report, then–ranking member Nadler complained that the hearing was addressing Clinton’s emails rather than the plethora of baseless political investigations pushed by his party. In his statement, he said:

  And we have not held a single hearing on allegations of obstruction of justice at the White House. . . . Now, with the year coming to a close, with the leadership of the Department of Justice finally before us, what do my Republican colleagues want to discuss? Hillary Clinton’s emails.

  Nadler’s decision to characterize a hearing about systemic problems within the FBI as a discussion of Hillary Clinton’s emails minimized the very real concerns Americans have with the nation’s premier federal law enforcement agency. Furthermore, Nadler and his colleagues had just spent eight years telling those of us in Congress that we had no right to conduct oversight on any issue that was part of an ongoing investigation (often referring to the OIG investigation of Clinton). Yet with a special counsel in place expending enormous resources on an investigation that was at that time incomplete, Nadler complained that Congress wasn’t duplicating that ongoing effort.

  Nadler went on to make excuses for the report’s findings, arguing there was nothing illegal about Comey “sitting down to draft an early statement about the Clinton investigation” and excusing Strzok’s bias-filled text messages to his mistress and colleague Lisa Page by saying, “Peter Strzok did not say anything about Donald Trump that the majority of Americans weren’t also thinking at the same time.”

  The inspector general was not so glib about the report’s findings, writing:

  The damage caused by these employees’ actions extends far beyond the scope of the Midyear [Clinton] investigation and goes to the heart of the FBI’s reputation for neutral factfinding and political independence.

  By failing to grasp the significance of the damage to the FBI’s reputation, the party of big government has actually undermined big government. Each time a new OIG report is released, Congress should be working hand in hand with federal agencies to make government work better. Instead, they excuse poor behavior and then wonder why Americans don’t trust government to single-handedly end the earth’s heating and cooling cycles. They are happy to make allegations when the opposing party is in power, but when they hold power, they have shown no interest in enacting reforms that would apply equally to both parties.

  This is a missed opportunity for Democrats to address the proliferating problem of government functioning off the record. That’s important. But an even bigger opportunity lies ahead.

  Stopping Invasive Government Surveillance

  With the release of a new OIG report identifying serious abuses of the nation’s FISA Court, the House will have yet another opportunity to prove government can be held accountable. Don’t hold your breath, though.

  The Foreign Intelligence Surveillance Act (FISA) was established in 1977 in response to concerns about President Nixon’s abuse of the nation’s surveillance apparatus for domestic spying. The law set up a FISA Court to determine whether probable cause exists to suggest the target of surveillance is a “foreign power” or an “agent of a foreign power.” The purpose of the process is an important one. It helps us roo
t out terror and identify foreign spies.

  The FISA Court is designed to provide a check of the executive branch to prevent unauthorized surveillance of American citizens.

  FISA abuses during the Obama administration were revealed in a landmark memo released by then–House Intelligence Committee chairman Devin Nunes in February 2018. The memo concluded that the FBI relied on undocumented allegations in the Steele Dossier to apply for and renew FISA applications for Trump campaign adviser Carter Page. Undisclosed to the FISA Court was the fact that the Steele Dossier was a collection of baseless allegations against Donald Trump brought by partisan opposition researchers and paid for by the Clinton presidential campaign and the Democratic National Committee.

  I was on the House Judiciary Committee’s Crime Subcommittee when the FISA process came up for reauthorization in 2017. As we were talking about the reauthorization, many of us did not want to agree to a long-term extension. We were worried about the potential for abuse of power, particularly in light of the court’s record of almost unfailingly authorizing FISA surveillance requests. In the thirty-six years ending in 2015, the court had rejected only 12 of 38,169 applications. That’s an approval rate of over 97 percent. Just how much scrutiny were these applications receiving?

  I had left Congress by the time FISA was reauthorized. But as the reauthorization approached, I asked then-chairman Goodlatte if we could talk to a former or current FISA Court judge to help us get a better understanding of the process. I wondered if I could attend a FISA Court proceeding. The answer, in no uncertain terms, was no. The process is very secretive. Apparently, they don’t meet very often. They come and sit in a secure facility, plow through the paperwork, and then almost 100 percent of the time, they acquiesce to whatever the government requested.

  I was concerned that there is no one to argue the other side, which puts the onus on the Justice Department to give a clear and complete picture of why the request is necessary. The FISA Court operates in such secrecy that even members of Congress charged with oversight and reauthorization know little about it.

  I’d like to think I would have been brave enough to vote against the reauthorization, but there is a lot of pressure. Despite the risk of abuse, surveillance of foreign spies is a critical and necessary tool for national security. But I knew at the time that the process was also ripe for abuse.

  With the release of the OIG report, will Democrats rise to the occasion by looking for solutions to a well-documented problem? They should. I found my Democratic colleagues to be very helpful on privacy issues. This is an area of bipartisan agreement.

  Back when attacking the FISA Court was helpful in attacking Republican president George W. Bush, Democrats were outspoken in their calls for reform. Even the liberal Brennan Center published a report in 2015 analyzing what went wrong with the FISA Court. But with the FISA Court in the crosshairs of a plot to undermine President Donald Trump, how willing will House Democrats be to acknowledge the abuse committed on their behalf? Will they be willing to provide serious oversight when doing so requires them to take a political hit?

  There remain systemic executive branch problems that good oversight can positively influence. Democrats have a valuable opportunity to demonstrate their ability to make government work.

  Furthermore, there is important follow-up that needs to be done on previous successful investigations to ensure that the laws we passed actually resolved the problems we sought to fix. Did our attempts to empower inspector generals in the wake of the Clinton email scandal result in better access to agency documents? Did the culture at the Secret Service improve after our bipartisan work to hold senior leaders accountable and to address the perverse incentives in the pay structure? Have our reforms of the Freedom of Information Act resulted in a more responsive document production process? Is there more that needs to be done?

  Many of those investigations were bipartisan in nature, with Cummings directly engaged in the collaboration. They started with an investigation and ended with a solution. I hope he will take some time away from Trump witch hunting to continue some of that important work. The opportunities to identify and address instances of waste, fraud, and abuse are as plentiful as ever. Scrutiny of executive branch function is not a bad thing. It’s critical to good government. But with so many committees consumed by the effort to get a specific outcome—to take down the president of the United States—will Democrats be part of the solution, or will they be part of the problem in Washington?

  Congress must focus its limited time and effort where it can have the greatest legislative impact. It is a dereliction of duty when the committee abandons programmatic and effective oversight of those trillions of dollars and instead focuses on nongovernmental activity.

  Headline-grabbing congressional investigations do not necessarily signify a strong and functional legislative body; to the contrary, they can be a sign of a dysfunctional and weak body. Functional legislative bodies are there to legislate. Dysfunctional ones resort to political messaging that never seems to produce actual legislation. All of this gets us further and further away from the original premise of the House Oversight Committee, which had been in place for more than two hundred years—to review government expenditures. The committee is not set up to be the truth police, nor is it meant to duplicate the prosecutorial work of the executive branch with regard to the private sector. Our focus is and always has been government.

  House investigations are meant to be solutions driven, not outcome driven. For Congress to identify an individual person as a target and then use the full force of congressional oversight to destroy that person is a gross abuse of power. To do so merely to remove a political obstacle is abhorrent and likely unconstitutional. Yet that is exactly what this Congress is doing to this president. It’s what Nadler has suggested doing to Justice Brett Kavanaugh.

  Maintaining White House Security

  If there’s one current investigation that legitimately offers a chance to resolve a systemic problem, it is the oversight of the White House security clearance process. Chairman Elijah Cummings and his committee have prime jurisdiction over security clearances at the White House. It’s an important issue and a legitimate investigation to pursue.

  Chairman Cummings has a whistle-blower whose allegations are exactly the kind of testimony Congress should look into. But the way the committee is going about this investigation is all wrong. It doesn’t seem to be about getting to the bottom of a serious problem, but instead about winning the news cycle.

  Let me explain. The committee wanted to hear testimony from White House security chief Carl Kline. If Kline appears voluntarily, he is entitled to a government attorney to advise him. If the committee has to subpoena his testimony, he is required to pay for his own legal expenses. The types of attorneys who have high enough security clearances to work with a witness like Kline do not come cheap.

  Instead of giving Kline the opportunity to appear voluntarily before the committee, Chairman Cummings immediately issued a subpoena, thereby stripping Kline of the opportunity to have a government attorney. In response, the White House advised Kline to follow in the footsteps of Obama administration officials and ignore the subpoena. They were willing to fight the subpoena in the courts. That would have taken time.

  Given the limited number of legislative days, the White House could have simply run out the clock until the next election. You can see why that option would be tempting. It’s a precedent set by previous administrations. I don’t agree with it. But I can understand why we can’t have one side subject to rules the other side does not have to follow. Chairman Cummings, having seen this move made by the Obama administration, responded the same way I responded to Attorney General Holder’s failure to comply with a congressional subpoena. He threatened to hold Kline in contempt. Unlike Holder, Kline was not in contempt. He was willing to testify. But he wanted to do so voluntarily, taking advantage of the legal counsel to which he was entitled.

  For Chairman Cummings, this was
not about getting to the truth. This was about winning the news cycle. It looks better for Cummings if the witness appears uncooperative and has to be compelled to testify. It looks better for Cummings if the witness is held in contempt of Congress.

  In this case, Chairman Cummings overplayed his hand. He knew from the Holder precedent that a court battle would take years to play out. Ultimately, he ended up agreeing to the voluntary transcribed interview. But not until he had enjoyed a week of negative news stories about Kline’s alleged unwillingness to testify before the committee. This is how the game is played when politics trumps truth. It’s all about the news cycle, not about the truth.

  Cummings was wrong to jump the gun on issuing a subpoena. Government witnesses do not want to engage their own counsel. A threat of a subpoena is generally enough to elicit the commitment to comply. If I encountered resistance from the administration, I would tell them I had paper and pen in hand. I was ready to issue the subpoena. One time I even took a picture of the unsigned subpoena and texted it to a witness. When I asked if he wanted me to send this for real, he complied. In my experience, 100 percent of the time they will agree to come in voluntarily if for no other reason than that they have more rights as a voluntary witness.

  “Shining a Light” or Illegal Leaking?

  A sure sign of an investigation that is more part of the problem than part of the solution is one that defines “shining a light” as winning the news cycle. Perhaps it goes without saying that an investigation involving selective leaks by one party or the other is likely to generate more heat than light. When you see an investigation that seems to be working in lockstep with the media or the bureaucracy to launder selective leaks, something isn’t right. Truth does not have to be selectively edited. It can be released in its full form.