As it now stands, the American federal ideal of separation of powers – that is, that power is dispersed between three co-equal branches of government – is regularly being upended by over-the-top invocation of oversight powers by the House Democratic majority to challenge the decision-making powers of the executive branch.
House Judiciary Committee Chairman Jerrold Nadler has now declared that, under the constitutional power of Congress to oversee the work of the executive branch, he will be subpoenaing U.S. Attorney General William Barr to testify about directing the Justice Department to dismiss the celebrated case against Gen. William Flynn, who was convicted by Robert Muller’s special counsel’s office.
The DOJ cited a mountain of exculpatory material that has surfaced after he pled guilty to making false statements to the FBI. But Nadler wants to pursue possible undue political influence.
It is not so much a matter of what one feels about Flynn or even that the weight of legal opinion is that an attorney general ordinarily has the authority that Barr exercised. Rather, the point is that almost everyone – even Nadler – would concede that Barr’s position is at least arguable. Essentially, then, it becomes a matter of what there has to be on the public record for Nadler to question Barr’s use of his prerogative. Is a mere difference of legal opinion enough?
Nadler’s committee is also looking into Barr’s involvement in the Roger Stone case in which the DOJ reversed a sentencing recommendation to Judge Amy Berman Jackson by former Muller prosecutors. Barr said that the previously recommended nine-year sentence for Stone was well beyond established precedent. The judge sentenced Stone, along the lines of Barr’s suggestion, to three years.
Plainly, an attorney general has the power to override decisions of his prosecutors. Yet, Nadler and others claim they have the congressional oversight right to challenge Barr’s intervention, again based upon the possible exercise of improper political influence. But what specifics must be on the public record to justify the invocation of this right? Is any excuse sufficient?
Consider also the current flap over President Trump’s firing of four inspectors general of four executive departments in recent months, most recently the State Department IG. Despite the fact that a president has the right to fire any federal employee, House Speaker Nancy Pelosi has announced a congressional oversight probe into the firings, saying that despite the clear presidential power to do so, if it were for an improper purpose, the firing could be unlawful. And so again, what facts have to be on the public record to trigger the oversight power and questions about the exercise of nominally-authorized action?
Also, this past Monday, the U.S. Supreme Court heard the case of the House of Representatives’ attempt to force the Department of Justice to turn over grand jury material from Special Counsel Robert Muller’s now-completed Russia probe. House lawyers told the Court they needed the information because they are in the midst of an “ongoing presidential impeachment investigation as part of their weighty constitutional responsibility.” They explained:
The [House Judiciary] Committee’s investigation did not cease with the conclusion of the impeachment trial. If [the sought] material reveals new evidence supporting the conclusion that President Trump committed impeachable offenses that are not covered by the articles adopted by the House, the committee will proceed accordingly – including, if necessary, by recommending whether to recommend new articles of impeachment. [emphasis ours]
While congressional oversight is an important check on palpable abuse of executive power, House Democrats seem to be claiming that the oversight power authorizes them to engage in something that could only be described as a fishing expedition. And if the recent impeachment of Trump is evidence of anything, it is that they believe that an impeachable offense is anything a congressional majority says it is.
Perhaps the Supreme Court – as our system’s ultimate constitutional arbiter – can run interference between the president and Congress and give some guidance on what constitutes a proper predicate for congressional oversight. It is certainly time for some grown-up intervention.