Sunday, June 14, 2020

Does Senator Graham Realize that (per President Trump and the SG) His Investigation of the Russia Investigation is Unconstitutional?

Marty Lederman

The Senate Judiciary Committee is currently engaged in an investigation entitled "Oversight of the Crossfire Hurricane Investigation."  ("Crossfire Hurricane" was the FBI investigation into Russian interference in the 2016 election.)  On Thursday, the Committee voted 12-10 along party lines to authorize Committee Chair Lindsey Graham to unilaterally issue subpoenas related to this Judiciary Committee "oversight" investigation, including to 53 specifically named current and former officials from the FBI, DOJ and the Intelligence Community:  Trisha Anderson, Brian Auten, James Baker, William Barr, Dana Boente, Jennifer Boone, John Brennan, James Clapper, Kevin Clinesmith, James Comey, Patrick Conlon, Michael Dempsey, Stuart Evans, Tashina Gauhar, Carl Ghattas, Curtis Heide, Kathleen Kavalec, David Laufman, Stephen Laycock, Jacob Lew, Loretta Lynch, Andrew McCabe, Mary McCord, Denis McDonough, Arthur McGlynn, Jonathan Moffa, Sally Moyer, Mike Neufield, Sean Newell, Victoria Nuland, Bruce Ohr, Nellie Ohr, Stephanie L. O’Sullivan, Lisa Page, Joseph Pientka, John Podesta, Samantha Power, E.W. “Bill” Priestap, Sarah Raskin, Steve Ricchetti, Susan Rice, Rod Rosenstein, Gabriel Sanz-Rexach, Nathan Sheets, Elizabeth Sherwood-Randall, Glenn Simpson, Steve Somma, Peter Strzok, Michael Sussman, Adam Szubin, Jonathan Winer, Christopher Wray, and Sally Yates.

According to both President Trump (in his personal capacity) and the Solicitor General of the United States, this Judiciary Committee investigation is unconstitutional, and therefore recipients of the subpoenas need not comply with them.

In their briefs to the Supreme Court in the pending Trump v. Mazars case, Trump and the SG have argued that a congressional committee only has the power to investigate individuals as an "adjunct" to a "legislative" objective, which they define as the power to propose, consider and enact legislation.  Trump argues that a committee's legislative purpose (i.e., a purpose to consider legislation) must be the “real object,” “primary purpose[],” and “gravamen” of any subpoenas.  Both Trump and the SG insist that exposing wrongdoing is not in and of itself an authorized legislative objective.  Indeed, according to Trump, trying to uncover whether federal officials have engaged in wrongdoing "is a form of law enforcement" that's simply off-limits to Congress.  The SG further argues that "when a congressional committee issues a subpoena, it must be authorized by a delegation from the full chamber that identifies the legislative purpose with sufficient particularity" and that "any information sought must be pertinent to the stated legislative purpose."

The Judiciary Committee's investigation of Crossfire Hurricane fails these tests of constitutional power.  As far as I can tell, the Committee hasn't so much as purported to have any legislative objective--let alone that such a purpose is the "gravamen" or "primary purpose" of the investigation.  And certainly the "full chamber" has not identified such a legislative purpose at all, let alone "with sufficient particularity."  Nor will the information sought in any forthcoming subpoenas be "pertinent" to any "stated legislative purpose."

To the contrary, Chairman Graham was unequivocal at the hearing on Thursday about the Committee's objective:  "Somebody needs to be held accountable," he said.  "We're going to be in the accountability business."

Well, according to Donald Trump, that's a form of "law enforcement" that's beyond a congressional committee's constitutional power.  Likewise, although Graham announced that the subpoenas are necessary because "[t]he American people deserve answers to these questions" about "why all these counterintelligence investigations were opened to begin with" and "how these investigations got off the rails," a recent Office of Legal Counsel opinion insists that "transmitting information “to inform the public . . . is not a part of the legislative function.”

Please don't get me wrong:  Much as I believe that Graham's investigation is deeply misguided, I don't think it's unconstitutional.  As I've argued at length in several posts here (such as this one) and at Just Security, as well as in an amicus brief I filed with several other scholars in Mazars, I think the Trump and SG arguments in Mazars are fundamentally mistaken, and belied by centuries of congressional oversight that's resembled what Senator Graham is up to in the Judiciary Committee investigation here--which is why everyone is very familiar with such investigations and why no one ever wonders whether there's any serious constitutional doubts about them.

But notwithstanding my protestations, those are, indeed, the arguments that Trump and the SG have offered throughout the Mazars litigation.  Accordingly, I look forward to their condemnations of the Graham investigation--and to Bill Barr and the SG raising constitutional objections to any subpoenas that Lindsey Graham issues to current and former government officials.

P.S.  All of this applies, as well, to the Senate Homeland Security and Governmental Affairs Committee's investigations of Crossfire Hurricane, “unmasking,” and Hunter Biden.

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