House Democrats should not play prosecutors

After last week's midterms, President Donald Trump faces a stark new political reality. Now that the House o...

Posted: Nov 13, 2018 10:58 AM
Updated: Nov 13, 2018 10:59 AM

After last week's midterms, President Donald Trump faces a stark new political reality. Now that the House of Representatives has flipped to Democratic control, Trump -- for the first time -- must contend with a Congress that can and will seek to use its investigative authority to hold the administration accountable.

House Democrats have formidable power and plenty of crucial oversight work to do. Most importantly, the new Congress must protect the Department of Justice from political interference -- particularly given Trump's appointment of Matthew Whitaker as acting attorney general. In doing so, however, House Democrats must proceed carefully to avoid (perhaps inadvertently) impeding the ongoing criminal probes being conducted by special counsel Robert Mueller and the US attorney for the Southern District of New York (SDNY). In short, House Democrats have a vital role to play in reining in abuses by the Trump administration, but they need to leave the prosecuting to the real prosecutors.

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Democratic House leaders already have eagerly unveiled their investigative wish lists. Rep. Adam Schiff, who will likely chair the House Intelligence Committee, has announced his intent to investigate Trump's firing of Attorney General Jeff Sessions and appointment of Whitaker and to guard against potential efforts by Whitaker to impede Mueller's investigation. Expected incoming House Judiciary Committee chair, Rep. Jerry Nadler, told CNN that, immediately upon taking the gavel, he will seek to question Whitaker about his expressed hostility to Mueller's investigation. Nadler also will focus on Trump's potential violation of campaign finance laws through hush money payments, which is the subject of an ongoing criminal investigation by the SDNY.

Without question, congressional hearings are a powerful means to ensure transparency and expose impropriety in the administration. Perhaps the most important practical consequence of the midterms is that the House Democrats now hold investigative and subpoena power. That investigative authority is particularly consequential given the looming threat that Whitaker's appointment poses to Mueller and the SDNY.

Whitaker's predisposition to limit Mueller -- or perhaps stifle him entirely -- is undeniable: Shortly before he went to work for the Department of Justice in 2017, Whitaker declared that Mueller's investigation was going too far, that "there was no collusion with the Russians and the Trump campaign," and that an attorney general might reduce Mueller's budget "so low that his investigation grinds to almost a halt."

However, the prospect of being publicly called to task by the House might deter Whitaker from shutting down or impeding Mueller and the SDNY in the first place. And if Whitaker does prevent Mueller or the SDNY from taking all necessary investigative steps, then Schiff and Nadler may be the best hope to expose that interference.

While congressional investigations are vital means to hold the administration accountable, they also are inherently limited. The subpoena power enables the House to compel production of evidence from Trump, Whitaker and the administration. At the same time, the administration is likely to contest House subpoenas based on executive privilege, and a contested subpoena is likely to get bogged down in court proceedings.

Similarly, House investigations and hearings can identify and expose malfeasance, but the House cannot, on its own, file criminal charges. At best, the House can refer a matter to the Department of Justice for potential charges -- but that would route the ultimate decision-making process right back through Whitaker.

So, while the House Democrats now hold a heavy hammer, they must recognize that ultimately congressional oversight is not as potent as the criminal investigative authority held by Mueller and the SDNY. To that end, Congress should take care -- in its eagerness to flex its newfound investigative muscle -- not to interfere with Mueller or the SDNY.

First, House Democrats must respect the secrecy of ongoing grand jury investigations. Grand juries generally operate in strict secrecy for good reason: Criminal investigations are most effective when potential subjects do not know precisely what steps law enforcement agents are taking. So, while the outgoing Republican-majority House pressured Deputy Attorney General Rod Rosenstein to disclose details of Mueller's investigation, the incoming Democratic House majority should exercise restraint and allow Mueller to do his work without probing potentially sensitive law enforcement means and methods.

Second, House Democrats should make sure not to step on the toes of Mueller and the SDNY. Prosecutors know it can be problematic if key witnesses are exposed to questioning outside the normal grand jury and trial processes. Such questioning can provide a potential target with an opportunity to learn about, anticipate and potentially frustrate an ongoing investigation. So, if Mueller or the SDNY have crucial witnesses whose testimony they intend to use to build criminal charges -- Paul Manafort or Michael Cohen, for example -- then House Democrats should avoid the temptation to subpoena those witnesses prematurely.

This is not to suggest that House Democrats should stand down entirely until Mueller and the SDNY have completed their work. The American public has given House Democrats a new check on the Trump administration, and they should use that power aggressively and judiciously. There are plenty of important topics that Schiff and Nadler can and should probe, including the circumstances of Whitaker's appointment as acting attorney general. However, they must not take precipitous action that might impede the ongoing criminal probes.

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