More as­saults on the rule of law

The House In­tel­li­gence Com­mit­tee in­ter­feres with the in­ves­ti­ga­tion of the pres­i­dent

The Washington Times Daily - - OPINION - By An­drew P. Napoli­tano An­drew P. Napoli­tano, a for­mer judge of the Su­pe­rior Court of New Jersey, is an an­a­lyst for the Fox News Chan­nel. He has writ­ten seven books on the U.S. Con­sti­tu­tion.

Amid all the happy hoopla over Pres­i­dent Don­ald Trump’s trip to Sin­ga­pore, where he be­gan the process for what he hopes will be the nor­mal­iza­tion of re­la­tions be­tween the United States and North Korea and the de­nu­cle­ariza­tion of the Korean Penin­sula, has come an ef­fort by the House In­tel­li­gence Com­mit­tee to in­ter­fere with the crim­i­nal in­ves­ti­ga­tion of the pres­i­dent.

The com­mit­tee’s chair­man, Rep. Devin Nunes, a Repub­li­can from Cal­i­for­nia, and the Repub­li­can ma­jor­ity on the com­mit­tee have de­manded that the De­part­ment of Jus­tice turn over doc­u­ments per­tain­ing to the ori­gins of the in­ves­ti­ga­tion of Pres­i­dent Trump by spe­cial coun­sel Robert Mueller.

And Mr. Nunes has threat­ened Mr. Mueller’s su­pe­rior, Deputy At­tor­ney Gen­eral Rod Rosen­stein, with cen­sure, con­tempt and even im­peach­ment if he fails to com­ply. Can Congress in­ter­fere in an on­go­ing fed­eral crim­i­nal in­ves­ti­ga­tion? Can it get its eyes on law en­force­ment’s ac­tive files? In a word: No. Here is the back story. In the pre-9/11 era, when the FBI and the DOJ de­voted their work pri­mar­ily to in­ves­ti­gat­ing crim­i­nal ac­tiv­ity, they both an­swered not only to the pres­i­dent but also to the House and Se­nate Ju­di­ciary com­mit­tees. This long­stand­ing re­la­tion­ship came about by way of a check on the ex­er­cise of prose­cu­to­rial power by the DOJ and the FBI.

These con­gres­sional com­mit­tees ap­prove the bud­get for law en­force­ment, the ar­gu­ment went, and as watch­dogs, so to speak, they are en­ti­tled to know how the tax­pay­ers’ money — and money bor­rowed in the tax­pay­ers’ name — is be­ing spent.

The re­la­tion­ship be­tween the con­gres­sional com­mit­tees on one hand and fed­eral law en­force­ment on the other has been a give-and-take, push me-pull you re­la­tion­ship that gen­er­ally led to com­pro­mise be­tween Congress and fed­eral law en­force­ment.

After 9/11, Congress passed the Pa­triot Act, which, in ad­di­tion to au­tho­riz­ing FBI agents to write their own search war­rants for all sorts of cus­to­di­ans of records — le­gal, med­i­cal, postal and bank­ing en­ter­prises, su­per­mar­kets, and li­braries, to name a few — gave the FBI a do­mes­tic in­tel­li­gence mis­sion not un­like that of the Na­tional Se­cu­rity Agency, which is Amer­ica’s do­mes­tic spy­ing ap­pa­ra­tus.

The in­tel­li­gence mis­sion en­abled the FBI to uti­lize new tools for law en­force­ment, un­der the guise of in­tel­li­gence gath­er­ing. Stated dif­fer­ently, by pre­tend­ing to be look­ing for spies, the FBI found crooks. Be­cause the le­gal thresh­old for spy­ing for in­tel­li­gence pur­poses is far lower than the le­gal thresh­old for ob­tain­ing a tra­di­tional search war­rant, FBI agents of­ten took the eas­ier route.

But the FBI’s spy­ing mis­sion also sub­jected it to the scru­tiny of two ad­di­tional con­gres­sional com­mit­tees, one in the House and one in the Se­nate. This cross-pol­li­na­tion of law en­force­ment and in­tel­li­gence gath­er­ing — this mix­ture of two dis­tinct roles, one tra­di­tional for the FBI and the other novel to it, one clearly reg­u­lated by the U.S. Con­sti­tu­tion and the other pur­port­ing to be out­side of it — tempted not only FBI agents to use the tools of spy-craft for law en­force­ment (even though it’s pro­hib­ited by the Fourth Amend­ment) but also Congress.

Now back to Rep. Nunes and the House In­tel­li­gence Com­mit­tee.

The Repub­li­cans on that com­mit­tee are de­ter­mined to use their reg­u­la­tory pow­ers over fed­eral in­tel­li­gence gath­er­ing to in­ves­ti­gate fed­eral law en­force­ment. They are do­ing this be­cause they claim to smell a rat in the ori­gins of the spe­cial coun­sel in­ves­ti­ga­tion and they want to get to the bot­tom of it. In order to get to the bot­tom of it, they have de­manded to see doc­u­ments in the cus­tody of Mr. Mueller to de­ter­mine whether there was suf­fi­cient prob­a­ble cause to com­mence the crim­i­nal in­ves­ti­ga­tion of Mr. Trump back in Novem­ber 2016.

But it is not the role of Congress to do this in the midst of a crim­i­nal in­ves­ti­ga­tion, and it is not the role of a con­gres­sional in­tel­li­gence com­mit­tee to scru­ti­nize law en­force­ment.

There are two dan­gers to the rule of law here. The first is that mem­bers of this com­mit­tee could use their se­cu­rity clear­ances to ex­am­ine clas­si­fied ma­te­ri­als and then use what they have seen for a political nar­ra­tive. They can­not law­fully, ex­cept on the floor of Congress, pub­licly re­veal clas­si­fied doc­u­ments they have seen, but they can (and they have done so in the past) sum­ma­rize them pub­licly — and with a political spin.

That en­dan­gers the sources of crim­i­nal in­ves­ti­ga­tors, many of whom are peo­ple who com­mu­ni­cate with in­ves­ti­ga­tors at great per­sonal risk and to whom con­fi­den­tial­ity has been promised. That con­fi­den­tial­ity is rec­og­nized in the law as the in­for­mant’s priv­i­lege, and it keeps con­fi­den­tial crim­i­nal mat­ters from public and peer­ing con­gres­sional eyes un­til the in­ves­ti­ga­tion is con­cluded.

The sec­ond and equally harm­ful dan­ger is that mem­bers of the com­mit­tee could leak what they have seen. To pre­vent this, prose­cu­tors have a priv­i­lege to keep their files se­cret un­til they charge or ex­on­er­ate their tar­gets or sub­jects.

Un­der the Con­sti­tu­tion, we en­joy the sep­a­ra­tion of pow­ers. Congress writes the laws; the ex­ec­u­tive branch en­forces them; and the courts in­ter­pret them. Congress can no more con­sti­tu­tion­ally in­ter­fere with on­go­ing law en­force­ment for political pur­poses than the DOJ can in­ter­fere with the pas­sage of con­gres­sional leg­is­la­tion that it doesn’t like.

The down and dirty fear that the DOJ and the FBI have is that re­veal­ing the con­tents of the crim­i­nal file on the pres­i­dent to his political al­lies in Congress in the midst of an in­ves­ti­ga­tion of him would be a dan­ger­ous prece­dent, one that would pol­lute the in­ves­ti­ga­tion and give present and fu­ture po­lit­i­cally pow­er­ful po­ten­tial de­fen­dants ad­van­tages that no one else has.

That dis­parate treat­ment of the pres­i­dent as de­fen­dant strikes at the heart of the rule of law. And the rule of law is what pro­tects us from politi­cians who can’t re­strain them­selves from vi­o­lat­ing their oath to up­hold the Con­sti­tu­tion.

IL­LUS­TRA­TION BY HUNTER

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