The authority of Congress to investigate and conduct oversight is an essential part of our constitutional separation of powers. It is far reaching, but it has its limits. It must be done in conjunction with a legislative purpose, and it cannot engage in or seek to influence the prosecutorial process. That is fundamental to our government.
Only the executive branch has the constitutional authority to prosecute. Congress can, when it comes across what it thinks is criminal activity, refer a matter to the Justice Department for possible prosecution, but its role and authority stops there. Should it seek to try to influence the discretionary authority of the executive branch in a prosecutorial matter, the third branch of government, the judiciary, could throw out the prosecution based on political influence.
House Republicans are now seeking “documents about the conduct of law enforcement officials involved in the Russia probe” according to the Washington Post, while the investigation is ongoing. That assault by House Republicans on the Justice Department in the name of congressional oversight is simply wrong and jeopardizes the foundational elements of our three-branch system of government.
I was involved in congressional investigations requiring access to documents from the executive branch for 36 years. In some cases those documents were readily forthcoming. In others, there was resistance and sometimes a genuine contest over access. Congress makes its claim as to why the documents it seeks are necessary to its legislative responsibility.
The executive branch makes its claim as to why it is critical to the internal operations of its offices, usually the necessity of the candid and free flow of ideas to the president, to maintain confidentiality. Sometimes those disputes end up in court with a judge deciding who is right. But Congress has always avoided seeking documents from ongoing criminal investigations. That was my experience, and that’s the way it should be. That is a bright red line that should not be crossed.
How dangerous is the assault by House Republicans on the special counsel investigation by Robert Mueller? In terms of the operation of our system of government, it is very dangerous indeed. There is an ongoing investigation into Russian influence in the 2016 election. While Donald Trump is apparently not a target, his campaign and some of his top campaign officials are. This is a criminal investigation in which President Trump has a deep and personal interest.
If Congress hounds the Justice Department, and particularly Deputy Attorney Rod Rosenstein in this case, to the point that in protecting longstanding and fundamental policy, Rosenstein feels obligated to refuse to cooperate in the face of possible contempt, then our nation will have a constitutional crisis of significant proportion.
What saved the country during Watergate, when we were faced with a belligerent and, as it turned out, criminal president in Richard Nixon, was the counterforce of a strong, bipartisan Congress committed to getting the facts. We all remember how President Nixon and his administration denied any knowledge of the Watergate break-in and claimed it was politically motivated, not dissimilar from what we are experiencing now.
Denigrating and working to end the probe into the Russian involvement in our election before it concludes upends values we cherish of due process and equality under the law. Were the president and House Republicans to succeed in quashing the Mueller investigation, it would result in the impunity from the operation of law that the best dictators achieve.
I have both fought for and experienced the power of congressional oversight. It is an essential tool in our constitutional system. But it must be wielded lawfully. It must never be used as a tool to interfere with a criminal investigation whether of an ordinary citizen or someone in high office. A strong and bipartisan Congress with backbone, fully committed to fairness and the facts, is essential to our democracy.
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