Late last month, facing the prospect of a Congressional subpoena, the Department of Justice voluntarily shared with House and Senate committees copies of four memos written by former FBI Director James Comey. The memos allegedly detail conversations with President Donald Trump regarding matters central to the ongoing investigation by Special Counsel Robert Mueller.
Executive branch champions protested. “This cave by DOJ will have long-lasting ramifications,” tweeted Matthew Miller, former Justice Department spokesman under President Obama. “This is an area governed solely by precedent, and DOJ is setting precedent that it is ok for Congress to interfere with, and receive documents pertaining to, active investigations.”
“This capitulation alters the balance of power between the Justice Department and the Hill and makes it substantially more difficult for department officials to resist future congressional interference in active, politically charged investigations,” exclaimed former U.S. Attorney and Deputy Assistant Attorney General Harry Litman in the pages of The Washington Post.
The legal, historical, and practical substantiality of these assertions is mythical.
If it’s any consolation, Miller and Litman aren’t the first to make these erroneous arguments. As a senior legal analyst for the Congressional Research Service, I first addressed such claims in 1993. I was assisting then-Energy and Commerce Committee Chairman John Dingell in a probe of how the Justice Department handled environmental crime prosecutions.
The inquiry was controversial at the time. Opposition to Dingell’s investigation came not only from Justice in response to document and witness demands, but also from the criminal defense bar, the media, and prominent legal figures.
Former Attorney General Benjamin Civiletti objected to the Justice Department allowing its line attorneys to be interviewed by the Committee regarding prosecutorial decisions, and to its provision of documents to Congress regarding the exercise of prosecutorial discretion. To do so, he opined, would be an abrupt departure from “a time-honored Department of Justice policy shielding the prosecutorial decisionmaking process from pressures from the political process.” That policy, he claimed, was articulated by Attorney General Robert Jackson in 1941 and “followed by every subsequent Administration.”
However, those claims are not supported by a review of history. Between 1920 and 1993, Congress consistently sought and obtained deliberative prosecutorial memoranda and the testimony of line attorneys, FBI field agents, and other subordinate agency employees regarding the conduct of open and closed cases in the course of innumerable investigations of Justice Department activities. These investigations encompassed virtually every component of the Justice Department, and all levels of officials and employees, from the Attorney General down.
There appears to be no court precedent that imposes a threshold burden on committees. Indeed, the case law is quite to the contrary. An inquiring committee need only show that the information it seeks is within the broad subject matter of its authorized jurisdiction, is in aid of a legitimate legislative function, and is pertinent to the area of concern.
My 1993 review included 13 examples of Justice providing Congress information on open and closed investigations. Since then, CRS colleagues have periodically updated the report, noting continued acquiescence when committee insistence has been clearly demonstrated. The most recent version, from 2012, includes 22 examples. (They are chosen to be illustrative, not comprehensive; the actual numbers of Justice Department compliance with Congressional requests for such information is much higher.)
This history of the Justice Department’s compliance with Congressional requests for information involving criminal prosecutions has overwhelmingly been a good thing. The consequences of these historic inquiries at times have been profound and far-reaching. They have led directly to important legislation and the promulgation of internal administrative rules to remedy problems discovered, and to the resignations and convictions of several attorneys general.
Just because Congress can compel this information, however, doesn’t mean it should. Most of the time, Congress has grasped that. Congress regularly considers the sensitive law enforcement concerns and duties of the Justice Department and often declines to seek disclosure of the agency’s deliberative processes, in the absence of a reasonable belief that government misconduct has occurred. Congress has been generally faithful to these prudential considerations.
There is no denying that Congressional investigatory oversight may result in harming the prosecutorial efforts of the executive. For example, Congress granted immunity to key government witnesses during the 1980s Iran-Contra inquiry in order to provide immediate public understanding about the nature of the scandal in question. Those grants of immunity made it impossible to bring successful criminal prosecutions of the conspirators.
At the time, the Iran-Contra independent counsel Lawrence E. Walsh correctly observed: “The legislative branch has the power to decide whether it is more important perhaps to destroy a prosecution than to hold back testimony they need. They make that decision. It is not a judicial decision, or a legal decision, but a political decision of the highest importance.”
Congress’s decision to grant immunity to three key officials in the Iran-Contra scandal “inflict[ed] a near-crippling burden” on Walsh to successfully prosecute the men, The New York Timesopined then, even as it defended the legislative branch’s decision. The incident highlights how serious the tensions can be between the interests of Congress and federal prosecutors.
But there should be no doubt: the real issue is not whether Congress has a right to information that could frustrate or cripple criminal prosecutions, including information held by the Department of Justice. They do, and there is a lengthy history demonstrating that the Justice Department respects that. The real issue is whether, in any instance, Congress has adequately weighed its own needs against those of a federal prosecutor—and which need best serves democracy and the rule of law for the United States.
For further reading, see Chapters 5 and 7 of When Congress Comes Calling, which deal with the breadth of Congress’s power to access executive branch information and the lessons learned from 98 years of Congressional investigations of the Justice Department.