The Real Constitutional Crisis
Democrats and their media allies are again shouting “constitutional crisis,” this time claiming President Trump has waded too far into the Russia investigation. The howls are a diversion from the actual crisis: the Justice Department’s unprecedented contempt for duly elected representatives, and the lasting harm it is doing to law enforcement and to the department’s relationship with Congress.
The conceit of those claiming Mr. Trump has crossed some line in ordering the Justice Department to comply with oversight is that “investigators” are beyond question. We are meant to take them at their word that they did everything appropriately. Never mind that the revelations of warrants and spies and dirty dossiers and biased text messages already show otherwise.
We are told that Mr. Trump cannot be allowed to have any say over the Justice Department’s actions, since this might make him privy to sensitive details about an investigation into himself. We are also told that Congress—a separate branch of government, a primary duty of which is oversight—cannot be allowed to access Justice Department material. House Intelligence Committee Chairman Devin Nunes can’t be trusted to view classified information—something every intelligence chairman has done—since he might blow a source or method, or tip off the president.
That’s a political judgment, but it holds no authority. The Constitution set up Congress to act as a check on the executive branch—and it’s got more than enough cause to do some checking here. Yet the Justice Department and Federal Bureau of Investigation have spent a year disrespecting Congress—flouting subpoenas, ignoring requests, hiding witnesses, blacking out information, and leaking accusations.
Senate Judiciary Chairman Chuck Grassley has not been allowed to question a single current or former Justice or FBI official involved in this affair. Not one. He’s also more than a year into his demand for the transcript of former national security adviser Mike Flynn’s infamous call with the Russian ambassador, as well as reports from the FBI agents who interviewed Mr. Flynn. And still nothing.
Ron Johnson, chairman of the Senate Homeland Security and Government Affairs Committee, is being stonewalled on at least three inquiries. The House Judiciary and Oversight committee chairmen required a full-blown summit in April with Justice Department officials to get movement on their own subpoena. The FBI continues to block a fuller release of the House Intelligence Committee’s Russia report.
Not that the documents that Justice sends over are of much use. Mr. Grassley this week excoriated the department for its routine practice of redacting key information, and for similarly refusing to provide a “privilege log” that details the legal basis for withholding information. His team recently discovered that one of the items Justice had scrubbed from the Peter Strzok-Lisa Page texts was the duo’s concern that former Deputy FBI Director Andrew McCabe had a $70,000 conference table. (Was it lacquered with unicorn tears?) A separate text refers to an investigation that the White House is “running,” but conveniently blacks out which one. The FBI won’t answer Mr. Johnson’s questions about who is doing the redacting.
This intransigence is creating an unprecedented toxicity between law enforcement and Congress, undermining what has long been a cooperative and vital relationship. It is also pushing lawmakers ever closer to holding Justice Department officials in contempt or impeaching them. Congress hasn’t impeached a member of the executive branch (presidents excepted) since the 19th century. Let’s agree such a step would amount to a real crisis. And the pressure to use these tools to get disclosure is growing, as congressional Republicans worry about losing their oversight authority in the midterms, and suspect the Justice Department is stringing them along for that very reason.
Which is why Mr. Trump was right to order that Justice comply with Mr. Nunes’s demands for documents about the alleged FBI spy Stefan Halper and other information related to the catalyst of this investigation. As president, he has a duty to protect the reputation and integrity of the Justice Department—even from its own leaders. Forcing officials to comply with legitimate congressional oversight is far better than sitting back to watch those same officials singe the institution and its relationship with Congress in a flame of impeachment resolutions.
Mr. Trump has an even quicker way to bring the hostility to an end. He can—and should—declassify everything possible, letting Congress and the public see the truth. That would put an end to the daily spin and conspiracy theories. It would puncture Democratic arguments that the administration is seeking to gain this information only for itself, to “undermine” an investigation. And it would end the Justice Department’s campaign of secrecy, which has done such harm to its reputation with the public and with Congress.
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Appeared in the May 25, 2018, print edition.