Ka­vanaugh, Barr said Congress should probe pres­i­dents

The Buffalo News - - WASHINGTON NEWS - By Deanna Paul

WASH­ING­TON – Since tak­ing con­trol of the House, Democrats have launched a series of wide-rang­ing in­ves­ti­ga­tions of Pres­i­dent Trump, his cam­paign, his ad­min­is­tra­tion and even his fam­ily busi­ness op­er­a­tions. Repub­li­cans in Congress have crit­i­cized this as just an ef­fort to dis­rupt the Trump pres­i­dency and cov­er­ing the same ground as spe­cial coun­sel Robert Mueller III’s Rus­sia probe. But Democrats ac­tu­ally are do­ing some­thing two of Trump’s most prom­i­nent nom­i­nees have ad­vo­cated: con­duct­ing their own in­ves­ti­ga­tion.

Dur­ing the Ken­neth Starr-led in­ves­ti­ga­tion into Bill Clin­ton’s af­fair with White House in­tern Mon­ica Lewin­sky, Brett Ka­vanaugh and Wil­liam Barr ar­gued that wait­ing on the coun­sel’s re­port would be an ab­di­ca­tion of Congress’ con­sti­tu­tional duty. Both men un­equiv­o­cally sup­ported rig­or­ous con­gres­sional over­sight apart from – or per­haps even in­stead of – a coun­sel in­ves­ti­ga­tion. But with Trump in of­fice, Repub­li­cans have spent two years de­fy­ing their own key nom­i­nees’ words.

“When Congress learns of a se­ri­ous al­le­ga­tion against a pres­i­dent, it must quickly de­ter­mine whether the pres­i­dent is to re­main in of­fice,” wrote Ka­vanaugh in a Wash­ing­ton Post ar­ti­cle, “First Let Congress Do its Job,” dated Feb. 26, 1999.

Ka­vanaugh, then a top lawyer for the Starr in­ves­ti­ga­tion, was averse to both a badly be­haved pres­i­dent and the In­de­pen­dent Coun­sel Statute. For Congress to sit idly and de­fer to the coun­sel’s in­ves­ti­ga­tion, he said, is “not what the Con­sti­tu­tion con­tem­plated.”

“There sim­ply was no need for this mess to have oc­cu­pied the coun­try for 13 months,” sug­gested Ka­vanaugh, be­cause Congress could have much faster “got­ten to the truth.” In a March 1998 ar­ti­cle pub­lished by Amer­i­can Spec­ta­tor, Ka­vanaugh, now a Supreme Court jus­tice, wrote that “[b]ecause Congress is the en­tity con­sti­tu­tion­ally as­signed to de­ter­mine whether the pres­i­dent should re­main in of­fice, it fol­lows that a con­gres­sional in­quiry should take prece­dence over a crim­i­nal in­ves­ti­ga­tion of the pres­i­dent.”

Ka­vanaugh added: “It is more im­por­tant for Congress to de­ter­mine whether the pres­i­dent has com­mit­ted im­peach­able of­fenses or oth­er­wise acted in a man­ner in­con­sis­tent with the pres­i­dency than for any in­di­vid­ual to be crim­i­nally pros­e­cuted and sen­tenced to a few years in prison.”

Like Ka­vanaugh, Barr – the re­cently con­firmed at­tor­ney gen­eral – once ex­pressed dis­sat­is­fac­tion with Congress’ shrink­ing role in pres­i­den­tial in­ves­ti­ga­tions.

“I would like to see the watch­dog in­sti­tu­tions we have in so­ci­ety step up and per­form the pri­mary role they are sup­posed to, not let the in­de­pen­dent coun­sel han­dle ev­ery­thing,” he said dur­ing a 1999 con­gres­sional hear­ing. “And then con­tinue vig­or­ous over­sight both by Congress and the press.”

Ka­vanaugh and Barr’s late-1990s state­ments were made in the con­text of the In­de­pen­dent Coun­sel statute, not cur­rent spe­cial coun­sel reg­u­la­tions. The statute was al­lowed to ex­pire in 1999 and was not re­placed. Un­like Starr, Mueller gets his power, ju­ris­dic­tion and pro­tec­tion from Jus­tice Depart­ment rules, not a statute.

At times, a coun­sel’s in­ves­ti­ga­tion and a con­gres­sional over­sight com­mit­tee can over­lap, but each has its own bound­aries, said at­tor­ney Jonathan Meyer, a part­ner at Shep­pard Mullin who has ex­pe­ri­ence with both types of in­ves­ti­ga­tions. Nei­ther, he said, has un­lim­ited power or ju­ris­dic­tion.

“The Com­mit­tee is lim­ited by con­sti­tu­tional is­sues,” he said, like sep­a­ra­tion of pow­ers and bal­ance of pow­ers be­tween the branches of gov­ern­ment. Meyer also noted that there are lim­its to the in­for­ma­tion an over­sight com­mit­tee can ob­tain.

Un­like a spe­cial or in­de­pen­dent coun­sel, which in­ves­ti­gates al­le­ga­tions of crim­i­nal ac­tiv­ity, Congress’ role is much broader, House Over­sight and Re­form Com­mit­tee Chair­man Rep. Elijah Cum­mings, D-Md., said in a state­ment to the Post. It also in­ves­ti­gates waste, fraud, abuse, in­ef­fi­ciency, and du­pli­ca­tion with an eye to­ward re­form­ing ex­ist­ing laws or writ­ing new ones.

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