"The bottom line is that this is an administration that has been able to operate however it wants to because of the absence of oversight and now, thanks to American voters, that’s about to come to an end"

 

As Democrats prepare to take control of both the House and Senate come January, they have not been shy about their intent to resume Congress’ duty to act as a check on the executive branch. That will restore the guardrail that has been wholly absent during Donald Trump’s first two years back in office. Needless to say, that seems to be worrisome to the Trump.

Congress’ power to conduct investigations is an important and expansive one. Writing in 1993, the Joint Committee on the Organization of Congress defined congressional oversight as the “review, monitoring, and supervision of the executive and the implementation of public policy.” 

The Congressional Research Service (CRS), a nonpartisan public policy research shop located within the Library of Congress (often referred to as Congress’ think tank) has weighed in to suggest that the Joint Committee’s definition “captures the functional core of Congress's oversight of the executive branch. 

Nonetheless, it is the beginning, rather than an end, of understanding oversight as it has been practiced since the First Congress. As outlined in this manual, the purposes, practice, and tools of congressional oversight extend far beyond the confines of a simple definition.

While Congress has a broad reach when conducting oversight, it’s not entirely without constraint. For instance, committees must operate within their sphere of influence: “a congressional committee lacks authority to compel compliance with investigative demands when it acts outside its jurisdiction or fails to comply with its own rules.” 

And Congress must have a legitimate legislative purpose when it investigates. It cannot proceed with investigations merely to expose conduct it disapproves of if it can’t arguably lead to legislation. But the constraints are modest and members are used to working within them.

MSNOW’s Lisa Rubin reported that the House is searching for a new General Counsel. That person will likely take on the role of a wartime consigliere. Politico described the role as “a lawyer to take on Trump.”

The White House reacted like a cornered, frightened animal, puffing itself up to try and look big. They threatened members of Congress who were discussing using Congress’ investigative tools with criminal prosecution. White House Counsel Will Scharf wrote a three-page letter admonishing Congress to stick to investigating with an eye to its legislative role—oh, the irony for anyone who followed the House weaponization subcommittee these past two years. The letter accuses Democrats of intending to “harass and aggrandize rather than to advance any legitimate legislative end.”

Scharf ended up walking his accusations back on Newsmax on Wednesday. “What we’re asking for is nothing more than that everybody plays the rules and that everybody follows the law. That’s the only thing we’re asking for. That’s the only thing my letter asked for,” he said, even though it plainly threatened criminal prosecution.

Connecticut Senator Richard Blumenthal received a missive from a Texas U.S. Attorney who accused him, in connection with his inquiry into anonymous donors to Trump’s ballroom, of harassing citizens. He threatened the Senator with “significant legal consequences” if he does not make oversight documents available. Blumenthal, a former U.S. Attorney himself, did not seem frightened.

Asked “What specifically have Democrats said that crosses a criminal line” in connection with the White House Counsel’s threat letter in a press conference, Todd Blanche said, “Free speech is allowed but there can come a point when a criticism becomes a threat and when a threat becomes something criminal.”

So how do you know where that line is? You look at the statutes. Blanche should be familiar with it because it’s the same crime they charged Jim Comey with in the seashells case. The case for its use here is even weaker than it is there. The government has to prove a threat to harm someone. Democrats are talking about issuing subpoenas. “Someone” in this administration must be terrified if the Attorney General of the United States feels like he has to go out on such a spindly limb. There are also First Amendment protections and Speech or Debate Clause protections here for Congress. 

The bottom line is that this is an administration that has been able to operate however it wants to because of the absence of oversight and now, thanks to American voters, that’s about to come to an end.  How do Democrats figure out where to focus? Costs, corruption, and competence were the Democrats’ campaign themes, and they are a good place to start. I would add a fourth “c”: cruelty. It is incumbent upon them to investigate the abuses at ICE.

Bloomberg reported earlier this week that “Justice Department leaders plan to force out additional US attorneys while preparing those who remain for wartime footing after their party’s midterms losses, a top official warned the nation’s chief prosecutors Monday.” U.S. Attorneys mostly worry about their jobs when the administration changes and a new party takes over. 

A call for U.S. Attorneys to resign, from the president who appointed them, “if they’re not prepared for full-on battle and to obey the administration’s orders,” is stunning, even if you’re old enough, as am I—I was at DOJ for it—the Bush administration firing of nine U.S. Attorneys. That major scandal is child’s play compared to telling U.S. Attorneys to leave now if they're not willing to prosecute whatever cases Washington tells them to.

So why exactly would the White House Counsel, the Attorney General, and other officials make such specious threats? Donald Trump was quick to personally go on the offensive after getting walloped the polls. Last weekend he took to Truth Social to demand that his Justice Department go on the attack and prosecute members of Congress for having the temerity to suggest that they should do their jobs. Trump posted on Truth Social:

“The Democrats are going around threatening a lot of people, including the Attorney General of the United States, and others, with Impeachment and many other forms of punishment, even though they admit they have no reason to do so, and there have been no impeachable acts committed, or even thought of, by the victims of this illegal process. 

“This is extortion at the highest level, and they should be held accountable for this. Also, they’re threatening our Donors, some of the most respected people anywhere in the World, with imprisonment, and many other levels of punishment, just because they happen to be Republicans, or Republican supporters. 

“This is Weaponization and Lawfare at another level. The Senator from Michigan, Elissa Slotkin, is saying that she is going to go after all young people that believe in Republican Values, and that give even the slightest inclination to be a Republican. The imprisonment should be against these EXTORTIONISTS, and Republicans should get smart, fast! Threatening letters have been sent to many people, all innocent, from Democrat Political Leaders. By copy of this statement, I am ordering the Department of Justice to look into this criminal act, immediately! President DONALD J. TRUMP”

Just like clockwork, Scharf, Blanche, and others lined up to do the president’s bidding. Trump’s assertion that “no impeachable acts committed, or even thought of, by the victims of this illegal process” comes off a bit out of touch and gets the cart before the horse, coming out with the conclusion before there has been any investigation. And apparently Trump has now decided he can dispense legal advice about what crimes people have committed, writing, “This is extortion at the highest level, and they should be held accountable for this.” 

I’ve prosecuted extortion cases. The heart of the crime is using a threat, typically of violence, reputational damage, or economic harm, to extract something of value from the victim. That’s not close to what’s happening here. In Trump’s mind, legitimate oversight is an attack, and if that’s not suggestive of having something to hide, well, I don’t know what is.

Trump specifically called out Michigan Senator Elissa Slotkin, claiming she “is saying that she is going to go after all young people that believe in Republican Values, and that give even the slightest inclination to be a Republican.” Her lawyer, Preet Bharara, responded that it “should not be hard to make clear that we do not live in an authoritarian regime where mere criticism of the powerful can land anyone in legal peril and possibly prison.”

The conclusion of Trump’s post was the kicker: “By copy of this statement, I am ordering the Department of Justice to look into this criminal act, immediately!” There’s not even a pretense anymore that DOJ is anything other than a political tool Trump can wield as he will. The proof was the response we saw from Blanche and others.

What Democrats plan to do—engaging in oversight, even vigorous, aggressive oversight—doesn’t come anywhere close to the line Blanche claimed it did. This is just a political charade, meant to keep the emperor who has no clothing happy. While it’s the kind of behavior we have come to expect from this president, it’s behavior that no Attorney General should be complicit in.

We’re going to be dealing with this for the next two years. Trump with his back against the wall and the clock ticking toward the end of the era of deference and privilege being president has bestowed upon him. The smell of accountability is new and apparently frightening for him. So be joyous about the result of the midterm elections. But be prepared for what is coming.

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Joyce Vance