PoliZette

Five Ways Congress Can Stop the FBI’s Trump-Russia Cover-Up

Constitution gives legislators many tools for enforcing its will against the executive or judicial branches, but they're worthless if left unused

There are at least five ways to end the exasperation of Devin Nunes — chairman of the House Permanent Select Committee on Intelligence — with the idiot’s treatment Congress is getting from the Department of Justice (DOJ) and the FBI. That’s in regard to seeking documents on allegations of collusion between President Donald Trump and Russia.

Just this week, Nunes told Deputy Attorney General Rod Rosenstein and FBI Director Christopher Wray to produce for congressional review unredacted copies of the original documents that prompted the Trump-Russia investigation and led to the appointment of special counsel Robert Mueller.

Nunes set an April 11 deadline for receipt of the requested documents. Failure to comply, he warned, would result in the committee’s “pursuing all appropriate legal remedies, including seeking civil enforcement … in federal court.”

But if recent history is any indication, Nunes won’t be getting those documents anytime soon because Congress thinks it must depend solely on DOJ or the federal courts to enforce its subpoenas. So powerful executive branch officials such as Rosenstein and Wray think they have little to fear from defying Nunes or Congress.

After all, Attorney General Eric Holder refused to give Congress thousands of documents in the “Fast and Furious” scandal even after being held in contempt. And remember IRS senior executive Lois Lerner’s flat refusal to answer questions from Congress about her role in illegally targeting conservative and Tea Party nonprofit applicants for harassment in the 2010 and 2012 campaigns? Being cited for contempt did nothing to change Lerner’s stance, either.

Holder and Lerner got away with defying Congress without being punished, so Rosenstein, Wray, and a growing list of other present and former executive branch officials can’t be blamed for thinking they will be able to do so as well.

It’s no coincidence that defiance from Holder, Lerner, Rosenstein and Wray parallels the public’s near-record low approval of Congress, which, according to the RealClearPolitics average, hit a meager 14.2 percent earlier this week.

But Congress has only itself to blame because the Constitution gives the first branch it created “all of the ultimate weapons in any showdown with either of the other two branches,” in the memorable phrasing of professors Willmoore Kendall and George Carey in their classic “The Basic Symbols of the American Political Tradition.”

Holder and Lerner got away with defying Congress without being punished, so Rosenstein, Wray, and a growing list of other present and former executive branch officials can’t be blamed for thinking they will be able to do so as well.​

Here are five of those “ultimate weapons,” whose deployment ultimately depends mainly on the will of Speaker of the House Paul Ryan and Senate Majority Leader Mitch McConnell to defend the right of Congress to be the people’s representatives. It can only be hoped Ryan and McConnell will be more responsible than Speaker John Boehner was in 2014 concerning Lerner, when he clearly had no idea what he was talking about on these issues:

1.) Put somebody in jail. Startled? Don’t be, because Congress has the power to jail people who defy its subpoenas and has done so on numerous occasions in the past, most recently in 1935. As the Congressional Research Service (CRS) has advised, “the long dormant inherent contempt power permits Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands.”

No jail in the Capitol? No problem, because Congress has its own police force and can confine anybody it chooses in hospitable quarters in the Capitol, long enough to put fear in the heart of anybody of a mind to defy a legal congressional subpoena.

2.) Impose a big fine. The same CRS report also suggested Congress has the inherent power to fine those who defy its subpoenas to testify or produce documents: “Drawing on the analogous inherent authority that courts have to impose fines for contemptuous behavior, it appears possible to argue that Congress, in its exercise of a similar inherent function, could impose fines as opposed to incarceration.”

3.) Invoke the power of the purse. Neither DOJ nor the FBI can spend a penny without prior congressional approval. Congress just passed a $1.3 trillion omnibus spending measure that included hundreds of directions — aka “riders” — to the executive branch on how to spend specific amounts. A 10 percent cut in the DOJ and FBI budgets might just focus the minds of Rosenstein and Wray in wonderfully new ways.

4.) Cut the workforce. Congress decides how many employees work for the DOJ and FBI, including both career civil servants like Rosenstein and Wray and the political appointees who report to Attorney General Jeff Sessions. A 10 percent reduction in the number of career employees would give Rosenstein and Wray multiple reasons to rethink their defiance of Congress.

5.) Have more political appointees. Congress also establishes how many political appointees are permitted to occupy certain senior executive positions. Allowing President Donald Trump — who shares Nunes’ frustration with the cover-up — to put more of his most loyal appointees in key jobs in DOJ and the FBI would be another mind-focusing exercise.

Are these five options “unrealistic” or “extreme”? Only if McConnell and Ryan are more fearful of being criticized by The Washington Post and the rest of the Washington Establishment than they are of going down in history as the congressional “leaders” who sat idly by — as the greatest representative assembly mankind has ever seen was reduced to a mockery of its former self.

Senior editor Mark Tapscott can be reached at [email protected]. Follow him on Twitter.

meet the author

Mark Tapscott manages LifeZette's political coverage. He is an elected member of the First Amendment Center's Freedom of Information Act Hall of Fame, has testified before Congress on transparency in government, and is a former CPAC Conservative Journalist of the Year. Reach him at [email protected].