Strengthening Checks and Balances

Justice Department Threatens Investigation of Investigation (of Investigation)

(Photo: IEF; illustration: CJ Ostrosky / POGO)

The fight between the House Permanent Select Committee on Intelligence (HPSCI) and the Department of Justice continues to build, but there's a new twist: A top DOJ official has reportedly promised to request lawyers for the House of Representatives investigate the Committee’s staff for unspecified misconduct.

CNN reported Tuesday that Deputy Attorney General Rod Rosenstein has promised to "request that the House general counsel conduct an internal investigation of these Congressional staffers' conduct" when Rosenstein returns from a foreign trip this week.

Can he do that?

He can ask, but it's a pointless exercise, says Mort Rosenberg, one of the leading experts on Congressional procedure and oversight authorities, and a fellow with The Constitution Project at the Project On Government Oversight.

"I don't quite fathom what Rosenstein is suggesting," Rosenberg wrote in response to an inquiry. "I hardly think the House General Counsel would conduct an investigation" at the request of Rosenstein, Rosenberg said.

The House Office of General Counsel has no responsibility to oversee the conduct of House staff or members, Rosenberg explained. It is the chamber's legal advocate and adviser. It is more likely to defend the House against charges of misconduct than it is to make them.

House Intelligence Chairman Devin Nunes (R-Calif.) has pressed Rosenstein for months for information from the Russia investigation, and had issued a subpoena for certain sensitive documents DOJ had declined to produce. The standoff led to remarkable briefings last month, coordinated by the White House, between DOJ officials, senior Congressional Republicans, and top Congressional intelligence oversight members, in which highly classified information from the investigation was to be shared.

An earlier account of Rosenstein's comments by Fox News alleged Rosenstein had threatened several months ago to have the Department of Justice investigate HPSCI staff members:

“The DAG [Deputy Attorney General Rosenstein] criticized the Committee for sending our requests in writing and was further critical of the Committee’s request to have DOJ/FBI do the same when responding,” the committee's then-senior counsel for counterterrorism Kash Patel wrote to the House Office of General Counsel. “Going so far as to say that if the Committee likes being litigators, then ‘we [DOJ] too [are] litigators, and we will subpoena your records and your emails,’ referring to HPSCI [House Permanent Select Committee on Intelligence] and Congress overall.”

A second House committee staffer at the meeting backed up Patel’s account, writing:

“Let me just add that watching the Deputy Attorney General launch a sustained personal attack against a congressional staffer in retaliation for vigorous oversight was astonishing and disheartening. ... Also, having the nation’s #1 (for these matters) law enforcement officer threaten to 'subpoena your calls and emails' was downright chilling.”

In subsequent comments to CNN, Justice Department officials disputed that account, but said that Rosenstein planned to go forward referring the matter to the House counsel's office.

That wasn’t the only oddity to be found in the Department’s explanation of the matter to CNN, however. Rosenstein apparently believed if the House held him in contempt, he would be able to access internal Congressional documents to mount his defense, according to one of CNN’s Department sources.

"The Deputy Attorney General was making the point—after being threatened with contempt—that as an American citizen charged with the offense of contempt of Congress, he would have the right to defend himself, including requesting production of relevant emails and text messages and calling them as witnesses to demonstrate that their allegations are false," a Justice Department official told CNN. "That is why he put them on notice to retain relevant emails and text messages, and he hopes they did so."

But there is no procedure for someone facing contempt of Congress to call witnesses or force production of documents, Rosenberg confirmed. That protection exists in federal court, not in proceedings held before Congress.

"If the House found [Rosenstein] in criminal contempt, the only way he gets to call witnesses is if the U.S. Attorney indicts him and there is a criminal trial," Rosenberg said. That's unlikely to happen. First, the Department of Justice has taken a public stance that Congress can't press criminal charges against Executive branch officials, Rosenberg explained, so it would require a prosecutor to take the case despite the department’s position. Second, as Rosenberg noted, "potential staff witnesses could probably assert Speech or Debate immunity."

So if Rosenstein wants oversight of HPSCI staff conduct, what options would he have short of bringing a Justice Department investigation? Rosenberg said Rosenstein could conceivably refer the matter to the House Ethics Committee and request consideration of a censure of Chairman Nunes for allowing conduct unbecoming to the institution. But Rosenberg was dubious such a course would result in much, besides taking the issue off the deputy attorney general’s plate. “He can then get on with serious DOJ business."