THE MUELLER REPORT IS OUT, but you knew that already.
By outsourcing the investigation to Mueller, Congress shirked its constitutional obligation to oversee the executive branch. Mueller’s investigation was narrowly scoped to prosecutable crimes arising from “the Russian government’s efforts to interfere in the 2016 presidential election.”
It’s Congress’s job to examine the larger issues within our political system that allowed for foreign interference in the 2016 election and the broader unlawful and destabilizing actions of the Trump administration. Congress must act as a check on the executive branch, not tip off the administration regarding ongoing investigations, a point apparently lost on the Senate Intelligence Committee chair.
Gathering information is hard work, and making it harder are the inferior mechanisms available to the legislative branch to enforce executive branch compliance and a lack of willpower to use those tools. For example, the House Judiciary Committee’s subpoena of the Mueller report relies on Justice Department vindication of Congress’s contempt powers, which seems unlikely at best unless Congress fixes how that mechanism works.
This is a live issue: the White House Counsel is gearing up to fight congressional subpoenas. Even if the courts don’t rule in Trump’s favor, time is on his side: congressional subpoenas expire at the end the 116th Congress (December 2020). Trump’s personal legal team and House Oversight Ranking Member Jim Jordan are on the record urging resistance to the subpoenas.
The legal opinions governing the executive branch, issued by the Department of Justice’s Office of Legal Counsel, are a major point of contention. It’s the OLC’s opinion that a sitting president cannot be indicted, which is problematic because the DOJ follows OLC’s opinions even when they are obviously self-serving or are on a disputed point of law. Many OLC opinions are not available to Congress or the public — we don’t know how many — and that body of secret law prevents Congress and the Courts from having an opportunity to redress OLC’s sometimes flawed legal conclusions.
Investigations require serious staff power, but Congress lacks sufficient staff and suffers from significant staff retention issues, primarily because of low pay or lack of professional development opportunities available. There’s lots of ideas for reform, but it must start with restoring funding for the legislative branchat least to its historic baseline, and addressing basic quality of life issues like appropriate pay levels, equal pay for equal work, paid parental leave, reasonable workloads, and more predictable work schedules. “The best indicator of what members of Congress care about is reflected in their staffing decisions.”
Staff must be empowered to help, and that includes even the most basic tasks like helping members to read the unredacted 450-page Mueller report — which they all should have — and to provide appropriate counsel to their bosses. And yet, members who serve on committees with jurisdiction over classified matters usually do not have staff with sufficient clearances to help them conduct proper oversight. Members can’t turn to their staff for advice if their staff can’t review key documents. (We’ve seen this before.)
Journalists, researchers, and the public should be able to see the results of the Mueller investigation, the DOJ’s guidance, the OLC opinions governing DOJ’s actions, and much more. In theory, anyone can request the Mueller report and attendant documents through FOIA, in fact EPIC and Buzzfeed have already sued for expedited access to the full report.
Nevertheless, FOIA is slow and expensive and legislative efforts to make it work better have been consistently undermined by presidents of both administrations. It was the Obama administration, for example, that undermined legislative efforts to strengthen FOIA the last time around, just as it set the stage for going after journalists and whistleblowers and refused our entreaties to fix FARA. This isn’t a “both sides” issue, but more of an illustration of “bad” and “worse.”
These problems fall on Congress to fix, as members who share a party affiliation with the president often forget that their first loyalty should be towards protecting Congress’s prerogatives, as that is a key element of checking and balancing the executive branch’s tremendous powers under the Constitution. Sen. Mitch McConnell is the poster child for this problem.
As to impeachment, Sen. Warren called on the House to start impeachment proceedings against Trump, and four members of the House have a resolution (H. Res. 257) directing the Judiciary Committee to begin an inquiry. Former House Counsel Mike Stern published a draft article of impeachment.
Given all that we know or reasonably suspect, it is incumbent on the House of Representatives to fully investigate these matters in a coordinated fashion with an eye to assessing whether and on what grounds the president should be removed. The mechanism for this is impeachment proceedings. Doing any less is an abdication of the House’s responsibilities as a legislative body, and telegraphs institutional weakness and a green light for further abuses.
QUICK HITS
Speaker Pelosi is picking fights with the rising progressive wing of the party.
A Florida man was arrested for death threats aimed at Members.
Press freedom index: the U.S. fell to #48.
Automatic CRs are a bad idea.
The House chaplain can bar secular prayers in Congress, a court ruled, begging the question of why the American people pay the chaplain’s $172,500 salary instead of the individual members who want one; there is precedent for volunteer chaplains.
As to civility, HuffPo makes a compelling argument that members of Congress should stop being polite and start being real.
Mueller got congressional transcripts from CQ — why isn’t Congress publishing them?
DOJ published the Mueller report as a image PDF; it should at least have been searchable, and the document likely violates federal law in that it cannot be read by those with visual disabilities. It should have been published (for free) in a format that allows for easy re-use and republication; instead people are paying for third-party prints.
#HouseOfCode, Capitol Hill’s very own science fair, is set for May 9th.
The House Cybersecurity Fair is this Wednesday from 9 to 3 in CVC 201.
OCE’s report on Rep. David Schiwekert’s misappropriation of MRA funds was released; the matter is still pending before the Ethics Committee a year later.
Trump’s tax returns got an extension, with Dems pushing back the deadline for production to April 23.
Two racist statues will be replaced in statuary hall, but the rest should go, too.
Trump vetoed the Yemen war powers resolution, another example where Congress is too weak to vindicate its role in declaring war.
