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Dear Reader,

The House of Representatives is under new management, and the incoming Republican bosses have made this much clear: they’re coming after the Justice Department. If newly-coronated (on the fifteenth try) Speaker Kevin McCarthy and his cohort make good on their threats to turn DOJ inside out – and there’s every reason to believe they’ll try – then we are headed towards a monumental constitutional showdown.

Among its first orders of business, the incoming majority has announced the formation of a “Select Subcommittee on the Weaponization of the Federal Government.” House Republicans are skipping the niceties; they’ve declared openly that they intend to investigate the purported politicization of the Justice Department, and that they will pry into “ongoing criminal investigations” in the process.

Let’s begin with a few stipulations. Elections have consequences and majority rules; like it or not, McCarthy and the Republicans won the House and now they hold oversight and subpoena power. Congressional oversight of the Executive Branch, including DOJ, is an essential part of our system of checks-and-balances. The attorney general absolutely should appear before Congress from time to time, and should be subject to questioning. It is fair game for the House to ask and the AG to answer questions about the Justice Department’s internal practices, law enforcement priorities, and allocation of resources. Everyone on board with all that? Good.

Now to the line in the sand: Congress has no right to delve into the details of ongoing criminal investigations. The Justice Department must categorically reject any such incursions by the Legislative Branch. Attorney General Merrick Garland can and should go up to Capitol Hill when summoned and answer questions about DOJ’s operations, policies, and resources. But if the House asks him about specific cases, he has to tell them, respectfully, to go to hell.  

Here’s why. If Garland were to capitulate and answer questions from the House about pending investigations – of Donald Trump, or Joe Biden, or Hunter Biden, or anybody else – then he would jeopardize those investigations, potentially fatally. He might expose witnesses (including cooperators and informants), he could give away investigative tactics, and he would provide the subjects of investigations with an opportunity to tailor their defenses – or, worse, to flee, to tamper with evidence and witnesses, and otherwise to obstruct justice. It’s a prosecutorial nightmare. There’s a good reason why NFL coaches don’t walk their playbook across the field and hand it to the opposing team; same idea here. 

Prosecutors also have an obligation to protect the subjects of ongoing investigations. If an AG were to testify publicly that DOJ was investigating a particular individual, that would undermine that person’s presumption of innocence, and it would likely inflict irreparable reputational harm. (There’s a fair argument that presidents current and past, like Biden and Trump, should be an exception to this rule; there’s a broad public need to know if they are under investigation, and it would be impossible to keep secret in any event.)

Finally, we have a fundamental separation-of-powers problem. Yes, Congress can conduct oversight. But it falls solely to the Executive Branch, through DOJ, to carry out the federal law enforcement function. Imagine if Congress could pry into, and essentially kneecap, any ongoing investigation. What happens when some member of Congress, or some well-heeled donor, gets nervous that the feds might be on to him? Can Congress simply call the AG up to the Hill, force him to disclose the details of the case, and blow it up?  

So let’s play this out. Let’s say Garland testifies and Jim Jordan demands specifics about the ongoing Trump or Biden investigations. And let’s say Garland refuses to testify or provide documents. Congress has one available counter-move: contempt. First, the Select Subcommittee would need to vote by a majority to hold Garland in contempt, and then the full House would have to do the same. If both of those votes came to pass – and remember, Republicans now hold the majority, albeit by a tiny margin – then the case goes over for potential prosecution to… the United States Department of Justice. Which is headed by… the Attorney General of the United States. Who, right now, is…Merrick Garland. So even if the House does vote for contempt, it seems safe to assume Garland won’t authorize an indictment of himself. 

There’s some history here. We managed to go our first 220-plus years without any attorney general winding up in contempt of Congress. But in 2012, the Republican-controlled House held Attorney General Eric Holder in contempt for refusing to provide documents relating to the “Fast and Furious” scandal, an ill-conceived investigation in which DOJ allowed illegal gun sales in an effort to track the purchasers, including some tied to Mexican drug cartels; some of the guns could not be tracked and one was linked to a murder of a United States border patrol agent. (Seventeen Democrats joined the Republican majority and voted for contempt.) Then in 2019, the Democratic-controlled House held Attorney General Bill Barr in contempt for refusing to provide documents relating to DOJ’s effort to add a citizenship question to the census. (You’ll be shocked to learn that the federal courts found that Barr’s explanation for DOJ’s actions wasn’t entirely truthful.) Neither Holder nor Barr were prosecuted, of course; as discussed above, the Justice Department usually doesn’t rush to indict its own attorney general.

The question, then, is whether Garland has the spine to stand firm, refuse to provide testimony or documents relating to specific investigations, and suffer the symbolic sting of a contempt citation to protect the Justice Department’s independence and institutional integrity. I believe he can, must, and will do just that. 

In one sense, Garland is the ultimate bureaucrat, a compulsive rule-follower, who must be horrified at the notion of a contempt citation. He’s the kind of public official who would be bothered even by a symbolic wrist-slap. (That’s a compliment, for the most part.) 

On the other hand, as critical as I have been of Garland’s plodding, myopic investigative style, I deeply admire his stewardship of the Justice Department. He plainly believes in DOJ’s mission, and he has made clear that he will fight to protect it. He vowed from the moment of his nomination to restore the Department’s credibility and independence, and he has done just that. I fully expect that when the moment of truth arrives and the House demands that Garland cough up details of an ongoing case, he will stand strong and, if need be, absorb a contempt ruling. 

In the broader view, I take issue with the fundamental premise underlying this new Select Subcommittee. McCarthy cries foul about policial “weaponization” of the Justice Department, but let’s take stock. Yes, DOJ is currently investigating Donald Trump, on both Mar-a-Lago and January 6th. And that’s because Trump’s conduct requires it; it would have been an unthinkable dereliction of duty to simply ignore both cases. By the way, you know who else DOJ is investigating right now? Joe Biden. Oh, and here’s another person currently in the Justice Department’s crosshairs: Hunter Biden. That case began under Trump and continues now because Joe Biden left in place the Trump-appointed U.S. Attorney leading it. I’m simply not seeing any political imbalance here. And, even beyond this handful of high-profile pending cases, let’s not ignore the reality that DOJ is comprised of thousands of non-political, professional prosecutors and law enforcement agents who keep their heads down and do their work, and couldn’t give a damn about politics.

At bottom, McCarthy’s stated mission to fight back against “weaponization” is largely Trump-appeasing political performance art. Don’t take my word for it; look at McCarthy’s own actions. On August 8, the date of the court-authorized Mar-a-Lago search, McCarthy took all of about two hours – before he reasonably could have had anything approaching full information – to take to Twitter and decry the Department’s actions and motives, and to promise vengeance. 

Soon it’ll be up to Garland to stand up to this nonsense and to protect DOJ’s most fundamental principles. I think he’s up to the task. He’d better be. 

Stay Informed,

Elie