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National Review
National Review
11 Feb 2023
Andrew C. McCarthy

NextImg:Contempt Charges Should Be Just the Start if FBI and DOJ Officials Defy House Subpoenas

A congressional subpoena is not a polite request. It is not the start of a negotiation. It is compulsory.

NRPLUS MEMBER ARTICLE L et’s say the Justice Department hit you with a subpoena, served by a pair of FBI agents, demanding that you produce documents and testimony on a date in the near future. Let’s say that, instead of complying, you responded by sending a letter to the Justice Department that admonished prosecutors that they were being “premature” in issuing their demand, and proposed instead to “meet” with them in order to “engage” on whether they really needed the materials outlined in the subpoena. Do you suppose that you would be granted this meeting? Or do you suppose that, the moment your production date came and went with no compliance, those nice FBI agents would be back with handcuffs and an arrest warrant, citing you for contempt and obstruction of an investigation?

Not a hard question. The Justice Department and the FBI are not famously tolerant of defiance.

It borders on the hilarious, then, that the DOJ and the bureau have replied to subpoenas from the House Judiciary Committee, now under Republican control, with a snippy letter wondering why Congress is not tripping over itself to negotiate with the Biden administration over the subpoenas’ demands, and why the committee is acting as if its assessments of its needs take precedence over the priorities of the unelected bureaucrats who run agencies that Congress created and that depend on Congress to fund their operations.

I mean, who does Jim Jordan think he is? Bennie Thompson?

More in Department of Justice

If you remember Thompson and Liz Cheney, the chairman and vice chairwoman, respectively, of the norm-busting congressional inquisition known as the House January 6 committee, then you’ll grasp the downright quaintness of the letter sent by Justice Department Legislative Affairs chief Carlos Felipe Uriarte to House Judiciary Committee chairman Jordan. The first rule of politics is worth repeating every day: What goes around, comes around. If Democrats truly revere interbranch comity, bipartisan cohesion, and cooperation over coercion, then they should have thought of that before they blew those conventions up in spasms of anti-Trump derangement.

Justice Department officials should be the last people who need to be told a subpoena is not a suggestion. That is especially so given how they treat the people they regard as suspects, including the American parents they chose — in coordination with the Biden White House and other Democratic operatives — to smear as domestic terrorists. A congressional subpoena is not a polite, optional request. It is not the start of a negotiation. It is compulsory — the kind of requirement that bureaucrats in progressive administrations revel in punitively applying to citizens and businesses who dare to question or cross them.

And what goes around comes around.

As we’ve recounted, based on a false narrative that parents protesting woke indoctrination in public schools were responsible for a spate of violent attacks against teachers and administrators, Attorney General Merrick Garland mobilized federal law-enforcement officials in October 2021 to harass and intimidate the parents, under the guise of investigating domestic terrorism. In this, he was taking his marching orders from the White House — you know, the Biden officials who would never, ever mix politics with law enforcement. The Biden White House, in turn, was colluding with progressive members of the National School Boards Association (whose leadership later disavowed these members’ handiwork).

Jordan has long maintained that if Republicans took over the House, this episode would get close scrutiny, with a focus on what he has described as whistleblower testimony from inside the FBI about the degree to which the bureau and federal prosecutors may be using counterterrorism powers (such as those granted them under the PATRIOT Act) to monitor dissenting parents. As I’ve emphasized, (a) there is reason to believe that Jordan has read too much into the FBI’s administrative recordkeeping (i.e., the fact that the bureau categorizes cases under a so-called threat-tag does not necessarily mean it is using counterterrorism measures); and (b) while it seems no news about today’s FBI comes without accounts of bureau missteps, it appears the bureau may have a reassuring story to tell about resisting Justice Department pressure to investigate parents. But that said, the FBI and the Justice Department better be prepared to tell whatever story they have, backed by whatever paper trail there is, because it sure looks like government officials and political operatives conspired to oppress and intimidate parents in the free exercise of their constitutional rights to assemble and dissent.

The Justice Department and FBI have no excuse for temporizing at this point. They’ve known for well over a year that this probe was coming in the likely event that Republicans took control of the House. They should be fully cooperating with the Judiciary Committee’s investigation, not bucking it.

Comparison to law enforcement’s response to the House January 6 committee’s demands is instructive. The panel was in a hurry because it knew it had a short lease on life. If it wanted to get its ducks in a row to make the partisan impact it was planning to make in the 2022 midterms, it didn’t have time for such passé niceties as deferential interbranch collaboration, negotiations, resort to judicial intervention in hashing out disagreements, etc. When Democrats decide something is opportune, immediate compliance is required. The committee thus issued subpoenas on tight time frames. Witnesses were held in contempt if they didn’t comply. They were castigated publicly if they dared rely on legal privileges to resist — the kind of demagogy that would result in a mistrial if a prosecutor pulled it in front of a jury.

The Biden Justice Department reacted by playing ball with the Democrat-dominated committee. Garland could have said, as the executive branch had said for decades when witnesses defied Congress, “This is not our fight. If Congress wants to enforce its subpoenas it should work that out with the witness or go to court.” Garland could even have added, “The Justice Department’s January 6 investigations are among the most significant in DOJ history. We are very concerned that, by aggressively issuing subpoenas, demanding production of documentary evidence, interviewing witnesses, and acting as if it were a grand jury, all without consulting DOJ prosecutors, the January 6 committee could compromise our investigations and our ability to bring to justice those who violated our laws.” But that’s not what Garland said. Instead, the remarkably docile DOJ didn’t make a peep of protest. In fact, it came to the committee’s aid by indicting witnesses for contempt of Congress and waiving executive-branch privileges to provide the committee with liberal access to information that it would normally claim was protected from disclosure to Congress by confidentiality privileges.

And what goes around comes around.

With Republicans now running the House, the Biden administration and its Justice Department want to return to the old Marquis of Queensbury rules: They want House committees to forgo subpoenas and write pretty-please letters begging law-enforcement officials for cooperation, take those officials’ stonewalling for an answer, and let intransigent executive agencies run the clock out until the next election.

After what we’ve watched for two years, there is no way House Republicans should settle for that. Democrats created this world, and now they must be made to live in it. Jordan should tell Uriarte that DOJ’s time would be better spent pulling together subpoenaed materials than writing letters. The FBI and DOJ should be made to understand that officials who fail to comply with subpoenas will be held in contempt, and that the House will explore additional punitive measures if their defiance continues.

Republicans are currently doing a good deal of aimless posturing about the debt ceiling. They are not going to fix the debt — to which they have done so much to contribute — in the debt-ceiling fight. To the contrary, they need to settle on some plausible demands to demonstrate seriousness of purpose.

Why not start with the Justice Department’s budget?

The outrageous omnibus budget bill for fiscal year 2023, enacted before the lame-duck Congress slipped out of town for the holidays, contained a mind-blowing $38 billion for the Justice Department, including $11.3 billion for the FBI. That is an increase of about $3 billion over last year’s budget, and of $6 billion over the DOJ’s budget when Biden took office. The administration claimed the steep raise was necessary for pursuit of such priorities as domestic extremism — you know, America’s parents. This is your government in action: The DOJ inspector general issues reports of scandal after humiliating scandal, and the political class annually responds by adding billions upon billions to DOJ’s war chest.

Just a decade ago, at the height of its Obama-era activism, the Justice Department managed to get by on a budget of about $27 billion — i.e., $11 billion less than what Biden and congressional Democrats just poured into its coffers. Meantime, the government is $31 trillion in debt; anti-woke dissent is the Justice Department’s preoccupation while actual violent crime surges in our cities; and the FBI is spending its lavish resources suppressing political speech on social media and interfering in presidential elections.

Do you think the Justice Department is worth $38 billion?

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