Congress should either use its contempt power or shut down the investigations.
An investigation is one of two things: a search for the truth, or a farce. The House is conducting a farce. That fact was on full display during ten hours of testimony by Peter Strzok, the logorrheic lawman who steered the FBI’s Clinton-emails and Trump–Russia probes.
The principal question before the joint investigation of the House Judiciary and Oversight Committees is whether the Democratic administration’s law-enforcement and intelligence arms strained to manufacture an espionage case against the Republican candidate, having buried an eminently prosecutable criminal case against the Democratic presidential nominee.
It should be straightforward to answer this question, provided that the investigative process has the one attribute central to any credible probe: the capacity to compel the production of evidence and testimony, with the corollary power to hold witnesses in contempt for defiance.
The House investigation has devolved into farce because it lacks this feature.
Oh, it exists on paper. There is even a statute making contempt of Congress a crime, punishable by up to a year in prison (and not less than a month). That may not sound like much, but the months can pile up: A separate offense occurs each time a question is ducked or a document is not surrendered. As the Wall Street Journal’s Bill McGurn explains, Congress has inherent power to enforce its subpoenas unilaterally, or it can seek assistance from the other branches.
But then reality intrudes. The committees pursuing the probe lack either the will or the votes — or perhaps both — to hold witnesses in contempt. This, despite audacious refusals to answer questions and turn over documents that would explain when and why the Trump–Russia investigation commenced.
It is an elaborate game of chicken.
Disciplined Democrats have hammered at a theme: The Republican-led investigations are a political ploy to discredit the Mueller investigation. At first blush, this seems like a red herring: Robert Mueller was not appointed special counsel until May 2017, mainly because of President Trump’s firing of FBI director James Comey. The committees, by contrast, are scrutinizing decisions made a year earlier to end “Mid-Year Exam (MYE)” (the criminal investigation of Clinton) and conjure up “Crossfire Hurricane” (the counterintelligence investigation of Trump “collusion” in Russia’s election meddling).
But, though distinct in time, these matters are intertwined. The FBI and Justice Department saw MYE and Crossfire as logically connected: The first thing Strzok said to his paramour, FBI lawyer Lisa Page, when it became clear that Trump would be the GOP nominee was that this would ratchet up pressure to wrap up MYE; the bureau then simultaneously shut down the Clinton-emails case and ramped up the investigation of the Trump campaign. When Mueller was appointed, it was not with a clean slate; his formal assignment was to assume control of the Trump–Russia counterintelligence probe — i.e., Crossfire Hurricane — focusing on whether it had been obstructed by Trump’s firing of Comey.
A joint committee determined to get at the truth would use its power to gather all the documentary evidence before interrogating witnesses.
The president, moreover, has tied everything together politically. He routinely refers to Mueller’s investigation as the “rigged witch hunt.” This is only partially because the special counsel has foolishly assembled a staff overflowing with lawyers who have notorious Democratic-party connections — and some of whom held high-ranking positions in the Obama Justice Department at the very time when the Clinton case was killed and the Trump case was launched. More to the point, Trump frequently offers the alleged 2016 misconduct of FBI agents in the Clinton and Russia investigations as his rationale for bashing Mueller, who had nothing to do with that misconduct and who removed Strzok from the investigation upon learning of his anti-Trump texts with FBI lawyer Lisa Page, who had already left by then.
It is therefore shrewd politics for Democrats to claim that Republicans don’t really care a whit about investigative integrity and even-handed law-enforcement; they are smearing the FBI and Justice Department for the sheer political purpose of undermining Mueller.
Most Republicans recoil at this criticism. This is why so many take pains to praise the special counsel and stress that their purpose is to examine conduct that occurred long before he came on the scene. But this hasn’t got a prayer of being heard above the din. If Republicans tried to hold a witness in contempt — whether it were Strzok, who won’t answer questions; the FBI officials, who are directing him not to answer questions; or the Justice Department officials, who endorse the FBI’s stonewalling — Democrats and the media would say they were trying to destroy Mueller’s methodical probe of “Russia’s attack on our democracy.” Republicans want to steer clear of that allegation, no matter how angry they are over being toyed with.
Then there is the elephant in the room.
Only one official in the U.S. government has the power instantly to end the contemptuous flouting of Congress’s oversight authority: President Trump. He could, at any time, direct that all relevant documents be disclosed to the committees and that all executive-branch officials provide complete and truthful testimony.
The president has declined to do this. Publicly, he has taken the position that, because some have falsely alleged that he has obstructed the investigation, he has decided to maintain his distance from it. And, for all we know, it may be that Trump realizes he has done nothing wrong and calculates that it’s better to let the Mueller’s investigation wind down than to take action that would reignite the embers of obstruction talk.
What serves the president’s political interest, however, does not serve the congressional investigations. Indeed, it makes matters worse. Committee Republicans blast the Justice Department and the FBI for obstructing them, even though their ire would be better aimed at Trump, who could end the logjam promptly. Everyone knows that if the president were a Democrat, that is precisely what Republicans would do. The fact that they give Trump a pass rather than blaming him for his subordinates’ intransigence bolsters the Democrats’ argument that the investigations are political theater. This gives the committees and GOP leadership even less appetite for a brawl over contempt.
The result is that, despite Republican control of the House, the votes may not be there to pass and enforce a contempt citation. Without a credible threat of enforcement, the Justice Department and FBI will continue defying subpoenas, and the FBI lawyers will keep instructing Strzok, Lisa Page, and other key witnesses not to answer questions.
It is not possible to get at the truth that way. A joint committee determined to get at the truth would use its power to gather all the documentary evidence before interrogating witnesses. It would not convene for ten hours to allow 75 legislators five minutes each of TV-camera time with Strzok; it would hire a competent investigator and trial lawyer to spend ten hours walking Strzok through every document — a carefully planned, exhaustive examination in which he is forced to answer tough questions, not make speeches.
That isn’t what’s happening. Instead, Strzok gets to present the story he wants to tell, avoiding the questions he and the FBI do not want to answer. Without access to the full documentary record, the committees have no practical way to cross-examine him.
The question is not whether the investigator is biased, but whether bias leads the investigator to do illegal or abusive things.
What is the point of arguing with Peter Strzok for ten hours about whether he was biased against Donald Trump? The texts speak for themselves, illustrating beyond cavil that he was biased. In fact, his absurd caviling to the contrary suggests he’d be an easy witness to demolish if a competent examiner had the documentary ammunition.
Bias is a dumb thing for Strzok to get uppity about. In 20 years of investigating people, I can’t tell you how many of them I developed a healthy bias against. Bias is a natural human condition. It is something we tend to feel about people who do bad things. There is, and there could be, no requirement that an investigator be impartial about the people he reasonably suspects of crimes. Am I supposed to be impartial about a terrorist? An anti-American spy? A corrupt politician? Seriously?
The question is not whether the investigator is biased, but whether bias leads the investigator to do illegal or abusive things. In the case of Strzok and his colleagues, the questions are whether they applied different standards of justice to the two candidates they were investigating; whether, with respect to Trump in particular, they pursued a counterintelligence probe in the stretch-run of an election, premised on the belief that he was a traitor, based on information that was flimsy and unverified.
These questions cannot be answered without the documents that explain the origin of the investigation. If the committees are not willing or able to hold government officials in contempt for stonewalling, and President Trump is not willing to order that his subordinates cooperate, it would be better to shut the investigations down than to further abide a farce.
Andrew C. McCarthy — Andrew C. McCarthy is a senior fellow at the National Review Institute and a contributing editor of National Review. @AndrewCMcCarthy
National Review Online · by Andrew C. McCarthy · July 14, 2018