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By this time next week, we’ll know the results of the 2022 midterm elections. Given current public polling and the historical record, Republicans likely will take control of the House, and maybe the Senate too.
If Republicans do take over Congress, the impact will, of course, be wide and pronounced. Today, I want to focus on one narrow but important question: if Republicans seize control of the House or the Senate, what implications will that have for the Justice Department?
Specifically, will a Republican-majority House or Senate have the power and the political will to interfere with DOJ’s ongoing investigations of Donald Trump and others – on January 6, and the classified documents at Mar-a-Lago? How might congressional efforts to derail the Justice Department play out? Could a new majority-Republican House or Senate squash DOJ’s cases and ride to Trump’s rescue?
Republicans quite likely will win control of the House, and perhaps the Senate too. Every president over the past 80 years has lost House seats in his first midterm, except George W. Bush in 2002, while he was still riding a wave of public support a year after the 9/11 attacks. Donald Trump, Barack Obama, and Bill Clinton lost 40, 63, and 52 House seats in their first midterms, respectively. Democrats currently hold a narrow 220 to 212 House edge (with three seats vacant); if Republicans pick up just five net seats next week, then Nancy Pelosi will hand the Speaker’s gavel over to Kevin McCarthy. Incumbent presidents typically fare a bit better, but still poorly on balance, in their first Senate midterms. Given the current 50-50 split, Democrats have no margin for error.
So, as DOJ’s investigations of Trump progress, what specifically might a Republican-majority House or Senate do to throw prosecutors off track? Let’s run through the possibilities.
Impeachment. House Republican leaders are fond of baring their teeth and growling about impeachment. Representative Jim Jordan, who appears likely to chair the Judiciary Committee if Republicans prevail, was asked in July whether Merrick Garland’s impeachment would be on the table. He responded, “Yes. Everything will be on the table. I want to stress: everything.” Other Republicans already have drafted impeachment resolutions against Garland over his position on threats against school board members on Covid-related issues and the search of Mar-a-Lago. It has become a parlor game among congressional Republicans to play “Name that Impeachee” with Biden Cabinet members; Garland seems to be the second most popular target, after DHS Secretary Alejandro Mayorkas.
But this one is all bark, no bite. First, it’s not entirely clear that the attorney general – any attorney general – is impeachable. Only one non-presidential Executive Branch official has ever been impeached in U.S. history: Secretary of War William Belknap in 1876. The Constitution provides for impeachment of the president, vice president, and “all civil officers of the United States.” It’s indisputable that federal judges qualify here – fifteen have been impeached – but a Garland defender could argue that Cabinet officials don’t qualify as “civil officers,” and that our history (with the one aforementioned exception, over 140 years ago) supports this limitation.
And then we get to the “even ifs.” Even if the House could and did impeach Garland – which requires only a majority vote – there’s no way the Senate reaches the two-thirds threshold (67 out of 100 votes) necessary to convict and remove him from office, even if the Senate tips over to Republican control. And even if that somehow came to pass, the removal of Garland would by no means spell the end of the Trump investigations, or any investigation. For one thing, Joe Biden is still President, so he’d pick the new AG or acting AG; at least temporarily, that would be current Deputy Attorney General Lisa Monaco (a CAFE alum; some of us go on to do big things). And even if Republicans could take out the AG, they can’t simply stop a case in its tracks. Maybe you can lop the head off of DOJ, but you can’t kill its cases. So the threat of impeachment is a sensational attention-grabber – but it’s also hollow.
Funding. Congress, of course, holds the power of the purse, and it’s a time-honored tradition for the majority party to threaten to withhold money from disfavored agencies. But stripping DOJ of its funding is not quite as easy as a parent taking away the teenager’s credit card.
Federal funding for Executive Branch agencies typically is allocated at least a year in advance; it’s not like DOJ operates on a weekly allowance. (For Fiscal Year 2023, DOJ will have a budget of around $37 billion.) As a practical matter, there’s nothing the House or Senate can do at the moment to impact DOJ’s core funding anytime between now and late 2024. And politically, it’s tough to see Republicans, who are running hard in these midterms on a “tough on crime” message, defunding the nation’s top law enforcement agency. (Quick aside: enough of the constant campaign ads featuring grainy surveillance footage of people getting shot, robbed, or punched out. Please and thank you.)
Investigations and Hearings. After four years of playing defense on investigations by the Democratic-controlled House – post-Mueller, Trump’s two impeachments, the January 6 Committee – House Republicans are frothing for payback. McCarthy already has vowed to use a new Republican majority to seek vengeance on everyone from his Democratic colleagues to innocent cell service providers who dared to comply with valid congressional subpoenas.
McCarthy already has vowed to go after DOJ over the Mar-A-Lago search. In August 2022, he tweeted: “When Republicans take back the House, we will conduct immediate oversight of this department… Attorney General Garland, preserve your documents and clear your calendar.” A group of House Republicans sent a letter to Garland instructing him to preserve documents – believe me folks, Garland knows he can’t destroy evidence – in anticipation of congressional inquiries. Don’t expect it to end there. If DOJ indicts Trump or other powerhouses, or appears to be getting close, watch for a Republican-controlled House to step in and start demanding answers from Garland and his staff.
That’s not to say Garland will give Congress everything it wants, or even anything of substance. He’s enough of a professional that he surely will refuse to answer questions about ongoing investigations or the substance of any case. Members of Congress know full well Garland can’t and won’t provide specific answers – but that may not stop them from pointing at him and yelling. Political show hearings could come at a real cost; they could compromise ongoing investigations, cause delay and distraction for prosecutors, and color the public’s view of the Justice Department.
We should take seriously the threat that a new Republican majority in Congress will disrupt DOJ’s work, or will try. Jordan and McCarthy have said they’ll do just that, without reservation. While some of the rhetoric is overblown – threats about impeachment and cutting federal funding make for cheap, headline-grabbing campaign fodder – DOJ could soon face vexing challenges to its independence and autonomy. The Justice Department already has more than enough on its plate with the pending, high-stakes Trump investigations. Congressional interference can only make matters worse, for all involved, by injecting politics into prosecution.