Congress’ Threats Lack Teeth And DOJ Knows It

Devin Nunes, Twitter

In the war over documents between the House and Senate committees investigating the FBI and other intelligence abuses and the FBI/Department of Justice, you might wonder why Congress keeps whining. After all, they say “We asked for these documents a year ago and still don’t have them!” “Why weren’t these sections included in what we requested?” And so on.

You have probably heard that Congress has “oversight” powers over these executive departments and agencies. In a sense that’s true, although there was no Federal Bureau of Investigation in 1789. Indeed, there is no Department of Justice mentioned in the Constitution (and it didn’t appear until 1870—interestingly, recent scholarship suggests, not so much as to handle all the leftover Civil War cases but to streamline and reduce the size of government). The first Attorney General, Edmund Randolph, took office in September 1789 after Congress passed the Judiciary Act of 1789 that created the Office of the Attorney General. It is tenuously through that Act that Congress maintains any control at all over the AG’s office, the staff of which is appointed by the president with the advice and consent of the U.S. Senate.

But here is the kicker: neither the Constitution nor the Judiciary Act provided a means for Congress to actually enforce anything beyond funding and/or the impeachment process. Congress could subpoena a witness to appear. If said witness did not appear, an arrest citation could be put out. But the arrest would have to be carried out by the Sergeant at Arms, who is not a law enforcement official. He can arrest people in the gallery, but cannot go outside the confines of Congress to make arrests. If, say, Rod Rosenstein, an individual never went to the House, Congress could not “haul him in.”

So, say Congress subpoenas a witness to appear and orders his arrest for contempt if he appears and fails to answer questions, the contemnor could sue under 28 U.S.C. Sec. 2241 in the United States District Court for the District of Columbia and seek a writ of habeas corpus, meaning an order to release the contemnor from custody (presumably the contemnor would be held at the Capitol). A judge would then decide the propriety of Congress’s contempt citation, but the Justice Department would not have to defend the congressional action.

This differs from contempt of court. If a judge made a finding of indirect criminal contempt and DOJ refused to prosecute, the court may appoint a special prosecutor under Federal Rule of Criminal Procedure 42(a)(2).

This is one approach Congress has to compel an FBI official or DOJ official to hand over documents or comply with requests. Not impressed? I’m not surprised. Virtually, Congress has no ability whatsoever to force the Executive Branch—any part of it—to do anything except through the power of the purse.

That’s Congress’s second power. Congress has full authority over authorizing and appropriating money in the budget. The Department of Justice Budget for 2018 has been voted on and signed, and the leadership of the U.S. Senate indicated it will not undertake another budget this year, preferring to go with another continuing resolution. That would mean that the first time that this Congress can modify or reduce the DOJ/FBI budget will be when they next debate a continuing resolution in the fall. Prior to that, Congress has no—and I mean zero—ability to affect the DOJ or the FBI with its budgetary powers.

In other words, Congressman Devin Nunes and Senator Charles Grassley can “demand,” “request,” or “insist” all they want, and they can threaten to impeach, but barring a massive effort with solid majorities in both houses, Congress cannot make the DOJ do anything. And if you’re waiting on Congress to withhold money, this has occurred only a handful of times in history when Congress demanded reports—which were eventually forthcoming. But the scheduling of the budget and the likelihood of a continuing resolution this year means it would be mid- to late 2019 before any budgetary leverage could be brought on any executive agency.

Larry Schweikart is the co-author with Michael Allen of A Patriot’s History of the United States and with Joel Pollak of How Trump Won.

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