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Congress’ Threats Lack Teeth And DOJ Knows It

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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.”

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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.

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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.

The Swamp

AG Barr Reveals John Durham Was Appointed Special Counsel Weeks Before 2020 Election

Durham has more power now.

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A federal prosecutor tasked with investigating 2016 FBI misconduct targeting President Donald Trump’s campaign was designated as a Special Counsel of the Department of Justice weeks before the 2020 election

On May 13, 2019, I directed United States Attorney John Durham to conduct a preliminary review into certain matters related to the 2016 presidential election campaigns, and Mr. Durham’s review subsequently developed into a criminal investigation, which remains ongoing. Following consultation with Mr. Durham, I have determined that, in light of the extraordinary circumstances relating to these matters, the public interest warrants Mr. Durham continuing this investigation pursuant to the powers and independence afforded by the Special Counsel regulations,” Attorney General Barr revealed in a statement released Tuesday. The order appointing Durham a Special Counsel is dated October 19th, 2020.

The Special Counsel is authorized to investigate whether any federal official, employee, or any other person or entity violated the law in connection with the intelligence, counterintelligence, or law enforcement activities directed at the 2016 presidential campaigns, individuals associated with those campaigns, and individuals associated with the administration of President Donald J. Trump, including but not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller III,” Barr revealed. “If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from his investigation of these matters.

Appointment as a Special Counsel grants John Durham powers broadly similar to those possessed by Robert Mueller during his Russian interference conspiracy probe. The powers potentially make Durham more difficult to fire in a potential Joe Biden presidential administration, and shield him from superior influence of the Department of Justice.

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Reports earlier this month had indicated Durham didn’t intend to make any further indictments as a result of his investigation into FBI political misconduct, with some speculating the premise of a Biden administration would deter the longtime federal prosecutor from charging any Democrats. His appointment as a Special Counsel may suggest he’s more inclined to charge those involved in FBI misconduct.

Durham has already secured one guilty plea, from an FBI lawyer who admitted to altering email communications from the CIA confirming that then-Trump campaign advisor Carter Page was a source for the intelligence agency.

Barr revealed he expects Durham to issue a report on the findings obtained from his investigation.

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