Power Grab

by Jason Chaffetz

  We’ve seen an unprecedented level of selective leaking used by Deep State operatives to undermine President Trump. We will undoubtedly see it deployed to shore up political narratives coming out of the many ongoing oversight investigations as well.

  According to data released by the Justice Department, referrals for leaking classified information dramatically increased when President Trump took office. In the last two years of the Obama administration, agencies transmitted just 55 leak referrals—18 in 2015 and 37 in 2016. In the first two years of the Trump Administration, the Justice Department received referrals for 120 leaks in 2017 and another 88 in 2018. Those leaks are seldom prosecuted. In fact, as recently as May 2019, the Justice Department inspector general released a report indicating his office had found a “preponderance of evidence” to show a senior FBI official—a deputy assistant director—had violated the law by disclosing to a reporter sealed court filings. That same individual had numerous documented unauthorized contacts with the media and had even accepted a $225 ticket to an event from a reporter. How did the Justice Department respond? By declining to prosecute. Leaking is both a systemic and a cultural problem within the Justice Department.

  Congressional committees, too, have a well-deserved reputation for leaking. They are often the first to receive important information and get the first opportunity to release it. Being the first to put your political spin on new information can pay huge political dividends. I wish I could say this was a Democratic problem. But to be fair, both sides have been guilty of this.

  The problem is not the release of information, but the release of classified, untrue, or incomplete information. Such leaks provide a short-term boost with a long-term price tag.

  Although it may be hard to believe anyone would risk violating the law to divulge classified information, reporters have different expectations. I remember receiving numerous classified briefings in the bowels of the Capitol Visitors Center. Such briefings followed the Boston Marathon bombing, the Brussels airport bombing, and other major incidents. At the top of the stairs and to the south, the media would inevitably be staked out with a hundred or more cameras and reporters, hoping to get someone to talk. Often someone did—off the record, of course. To me there was no story worth divulging classified or confidential information. That was simply a line I would not cross.

  Nonetheless, there is a reason Congress has a reputation for leaking. Perhaps the most relevant example is Intelligence Committee chairman Adam Schiff, whose lack of discipline and of candor as a ranking member has now compromised the reputation and efficacy of the very committee he now chairs.

  The Intelligence Committee’s stellar reputation has been tarnished by unprofessional, unethical, and quite unprecedented leaks of closed hearings on anything related to President Trump. After information from closed Intelligence Committee testimony by Donald Trump Jr. was leaked almost simultaneously in 2017, many pointed to the committee’s then–ranking member, Representative Schiff. Although Schiff initially denied leaking Trump’s testimony, he later defended the leak on CNN. “That’s not a leak,” he told CNN’s Wolf Blitzer. “It is exposure of his noncooperation and his stonewalling of our committee.”

  Whatever Schiff wants to call it, the practice did lasting damage to his and his committee’s credibility. Such leaks are the reason former Oversight Committee chairman Trey Gowdy believes Congress has proven itself incapable of conducting serious investigations. I wouldn’t go that far, but there can be no doubt that the actions of Schiff and others who leak protected information have done lasting damage to the institution. That damage is compounded when the leaks prove to be untrue.

  We saw firsthand how leaks can compromise the work of a committee when former FBI director James Comey demanded a public hearing for his testimony before the House Oversight and Judiciary Committees. He cited the fear of selective leaks as the reason to request an open hearing. The concern is a legitimate one. But it also conveniently allowed him to posture in favor of a process that would be easier for him to evade.

  Public hearings are very useful for exposing conduct that is already well documented in evidence. Forcing someone to publicly answer for bad behavior within their agency is embarrassing and generates a lot of publicity. The threat of having to go before the public and explain why an incident was mishandled can be an influential deterrent and a means of providing accountability. But the public hearing setting is not the best place to get answers to highly complex questions from a hostile witness.

  The leaking of nonpublic government information is a crime in itself, although rarely prosecuted. Veteran Senate Intelligence Committee staffer James Wolfe was indicted in June 2018 after leaking information to reporters. But Wolfe was only charged with lying to the FBI about the leaks and only sentenced to two months in prison. Nevertheless, there is a fair amount of irony in the fact that Chairman Schiff would leak information in an effort to get someone prosecuted for lying to Congress when in fact he himself is also violating the law by leaking nonpublic government information to the media. But in the run-up to 2020, we’ll see once again that in the world of Speaker Pelosi, the rules only apply to the opposition.

  Sometimes information has been withheld by executive branch agencies simply because it was embarrassing or politically inconvenient, even though it was true. In such cases, I have taken the position that the release of information should be done very publicly, with my name attached. If the information is true, complete, and not classified, the public should know about it.

  That’s what happened in October 2016 when news broke that the FBI had obtained the laptop of former congressman Anthony Weiner, whose wife, Huma Abedin, was an aide to Secretary Clinton. The laptop apparently contained classified information. This news surfaced at a very inconvenient time for the presidential nominee, with the election just days away.

  I learned of it when legal counsel for the Oversight Committee, Liam McKenna, called me on Friday, October 28, 2016. I didn’t answer the first call. Then he immediately called again, which was code for “I really need to speak with you.” McKenna told me to check my email. We had just received a letter addressed to me from FBI director James Comey, essentially stating that the investigation of Hillary Clinton had been reopened.

  I couldn’t believe what I was reading. But over the course of the next thirty to forty minutes, we read and reread Comey’s letter. It was addressed to multiple people. It was not classified. It had no markings suggesting the information was secret. There was no information suggesting this was even confidential. Comey did the right and necessary thing by informing Congress, given that he had assured our committee the investigation was closed. He had previously testified that no additional resources were being used in any way, shape, or form to investigate Clinton. That was no longer the case.

  At this point, a week before the election, I think it’s safe to say almost everybody thought Clinton was going to win. I certainly did. But that’s beside the point. The election had no bearing on whether this information should be made available to the public. So in a carefully worded tweet, I wrote,

  FBI Dir just informed me, “The FBI has learned of the existence of emails that appear to be pertinent to the investigation.” Case reopened.

  All hell broke loose. The tweet went viral, the story spreading at the speed of the internet. I later heard from some reporters that when it came out, Clinton and her top staff were all in the air. Normally the campaign airplanes have Wi-Fi access, but that afternoon it wasn’t working. I was told by the reporters that the Clinton war room exploded in concern when the tweet immediately went viral, being retweeted tens of thousands of times. But they were rudderless and unable to respond. It took them hours to get something out the door.

  I have no regrets about sharing this information. I didn’t leak it. I attached my name to it. Had it been marked classified in any way, my decision would have been different. But the public had a right to know. The FBI was letting us know in a public way that they had re
opened the investigation. Over the next few days, Democrats and their media allies tried to frame it as some sort of illegal leak. But it was absolutely 100 percent accurate and complete, it could be documented, and it in no way threatened national security. The underlying letter was a government record subject to FOIA and was to be released publicly by the FBI. CNN’s Jake Tapper was one of the first journalists to run with it. He asked for the underlying letter and I provided it.

  That situation is very different from taking bits of classified information or dribbling out details of a closed-door hearing as an anonymous source. I summarized a letter, put it in a tweet, later released the full letter in context, and received no pushback whatsoever from the DOJ. They knew they were giving us formal notice. I worked to expose truth. This was happening in real time.

  Good, solid investigations may yet be done by Democrats. We can only hope so. We would recognize them because they will be evidence based, they will inform legislation, they will be tied to government waste, fraud, or abuse, and they won’t need to rely on leaks to convey truth. The truth will tell its own story. Unfortunately, thus far the new crop of committee chairmen in the House seem so focused on discrediting the president that they have missed some key opportunities to forward their own agenda.

  The political stakes in the 2020 election cycle have never been higher. With the White House up for grabs, control of the Supreme Court still within reach for both parties, redistricting on the horizon, and narrow majorities in both the House and the Senate, a wave election for either side could mean long-term control of the direction of the country. Will the nation’s traditionalists and patriots manage to preserve free markets, limited government, and minority rights? Or will the pro-socialism, big-government agenda of the progressive wing of the Democratic Party carry the day?

  Along with the standard campaign tactics seen in every high-stakes election cycle, bigger tactics are on the horizon. In addition to the replacement of Super PACs with nonprofits and the deployment of online small-dollar fund-raising, we may well see the use of impeachment proceedings to weaken a sitting president followed by the attempt to scrap two-hundred-year-old political institutions that stand in the way of obtaining power.

  Chapter 10

  The Impeachment Dilemma

  To hear her talk about it, you’d think impeachment was the last thing on Speaker Pelosi’s mind. She told the Washington Post in early 2019 that impeachment would divide the country and was just not worth it. Oversight Committee chairman Elijah Cummings also struck a conciliatory tone, arguing, “You’ve got to have bipartisanship. Right now, when you’ve got forty-something percent of the country pleased, I guess, with what the president’s doing. I think Pelosi realizes this.” House Majority Leader Steny Hoyer in January 2019 called impeachment talk a distraction, saying, “We’re focused on substantive bills.”

  Yet for two years, impeachment talk has been all the rage. On the House Judiciary Committee, where impeachment hearings would likely originate, Representative Jerry Nadler, a New York Democrat, campaigned in early 2017 for the ranking-member role (what would become the chairmanship when Democrats won the majority a year later) pointing to his impeachment experience. According to the New York Times, a leaflet touting Nadler’s qualifications read:

  As our constitutional expert, and with his demonstrated leadership on impeachment in the 90s, Nadler is our strongest member to lead a potential impeachment.

  Even as House leadership was giving lip service to the notion that impeachment was premature, Speaker Pelosi assigned two outspoken pro-impeachment Democratic freshmen to the House Judiciary Committee. Representative Joe Neguse of Colorado and Representative Veronica Escobar of Texas are both on the record saying impeachment should happen.

  Demands to impeach the president began the moment he won the election—and in some cases earlier than that. An angry base predictably looked for any way to reverse what they saw as a catastrophic election result. No doubt such calls were nothing new. Many on the right were similarly devastated by the previous reelection of President Barack Obama. They, too, might have been tempted had they believed there was a means of reversing that result. But the difference this time was the response from members of Congress, who seemed certain Donald Trump was guilty of something. They just had to figure out what.

  By May 2017, they would all unite around the pretext of obstruction of justice in the firing of FBI director James Comey as their justification for the outcome their bases were demanding. But even before then, congressional Democrats were citing a laundry list of shallow pretexts for impeachment, grasping incoherently for some justification to overturn the results of the election.

  Democratic representative Jamie Raskin of Maryland called for Trump’s impeachment before the president was even sworn in. He cited emoluments clause violations. This early criticism of the president-elect sought to equate arm’s-length commercial transactions at Trump-owned businesses with foreign gifts intended to impact public policy.

  I refused to open an investigation on this issue when it was first raised, as there was no evidence that President Trump had violated the Constitution. Three subsequent lawsuits filed by progressive law professors; Maryland and Washington, D.C., district attorneys; and 196 Democratic members of Congress, respectively, were unsuccessful. The courts found none of the plaintiffs had standing to sue. Had they succeeded in redefining the emoluments clause, the new definition would have put early presidents Jefferson, Madison, and Monroe in violation for the routine selling of crops from their plantations to Europe.

  House Financial Services Committee ranking member Maxine Waters frequently articulated a case for impeachment, telling MSNBC in January 2017 that “we know that the Russians played an important role and they tried to support Mr. Trump and they tried to make sure that Hillary Clinton didn’t get elected.” There was no evidence connecting the Trump campaign to Russia’s election activities—then or now. But according to Waters, “we know.”

  Representative Joaquin Castro of Texas added his own call for impeachment in February 2017, citing the president’s travel ban. According to Castro, Trump “intentionally exceeded his constitutional authority” in preventing the entry of nationals from countries that could not provide adequate vetting. The Supreme Court begged to differ, ruling that Trump’s travel restrictions fell “squarely” within the president’s authority.

  That same month, Representative Keith Ellison of Minnesota told CNN Trump had already done enough to raise the question of impeachment. The only evidence at that point was the fake dossier, but apparently that was enough for Ellison.

  Representative Sheila Jackson Lee of Texas called for impeachment over Trump’s supposedly unfounded claims that he had been wiretapped, telling the Houston Chronicle: “If you do not have any proof and you have been saying this for three weeks then you are clearly on the edge of the question of public trust and those actions can be associated with high crimes and misdemeanors for which articles of impeachment can be drawn.” Given what we now know about the origins of the Trump dossier, do Democrats really want to be setting a standard that someone can be impeached for making a claim without evidence?

  Perhaps one of the most telling calls for impeachment came from Representative Tulsi Gabbard of Hawaii. At an April 2017 town hall meeting, Gabbard told voters:

  I am studying more about the impeachment process. I will just say I understand the calls for impeachment, but what I am being cautious about and what I give you food for thought about is that if President Trump is impeached, the problems don’t go away, because then you have a Vice President Pence who becomes President Pence.

  The “problems” don’t go away? What problems? Assuming the reason for impeachment was high crimes and misdemeanors, those problems would go away. What Gabbard suggested was that impeachment wouldn’t make a Republican president go away. It wouldn’t reverse the results of the 2016 election. It doesn’t solve the problem Democrats are trying to solve. That’s the giveaway—the
high crime progressive voters are worried about from this president is the crime of being conservative.

  With the firing of James Comey in May 2017, Democrats did what they often accuse Republicans of doing—they pounced. They seized. They came out of the woodwork to capitalize on what they hoped would be a fatal mistake by the president. By mid-May, twenty-four House members and two senators were talking about impeachment.

  The Perils of Impeachment

  Before embarking on any impeachment effort, lawmakers have to weigh the costs and the benefits. Impeachment is an important constitutional remedy—one that I believe should be used more often and more broadly against those who abuse their power. But there could be heavy political consequences for the party that is perceived to be using impeachment as a means to reverse an unfavorable election outcome.

  More than sixty times the House, which has sole power to begin the impeachment process, has initiated impeachment proceedings. Fifteen federal judges have been impeached, but only eight successfully removed from office following impeachment. Furthermore, cabinet secretary William Belknap was impeached in 1876 and North Carolina senator William Blount in 1797. I attempted to impeach IRS commissioner John Koskinen in 2016, but the effort was derailed by House Republican leadership.

  The chances that impeachment could actually remove this president are quite low. Impeachment is just the first step in the Constitution’s only process to remove a president before his term of office expires. To invoke it, lawmakers in the House have to file formal charges alleging that a president has committed “treason, bribery, or other high crimes and misdemeanors.” Any members of the House can introduce articles of impeachment—and indeed, they have. California representative Brad Sherman filed articles of impeachment in the House in July 2017 and again in the first week of the 116th Congress. Sherman cited as a high crime and misdemeanor the president’s firing of FBI director James Comey. Freshman representative Rashida Tlaib, who made headlines when she was recorded telling an audience to “impeach the mother****er,” is introducing her own articles of impeachment against the president for violating the Constitution. Filing the articles is the easy part.