William Barr’s appearance last week before the House Judiciary Committee was billed as part of the committee’s routine oversight responsibilities of the Department of Justice. In fact, it was mostly spectacle and performance.
Members of the committee bear some of the blame for that failure. Some of them asked questions that had little to do with Barr’s responsibilities as AG or with the jurisdiction of the department he leads.
For example, Congressman Hakeem Jeffries used his opportunity to question Barr to focus on whether the President’s handling of the coronavirus pandemic was “superb.” He went through a timeline of things President Trump has said or done and asked after each one. “Was that superb? Yes or No?”
Not exactly the kind of probing question that might elicit whether the Justice Department, under AG Barr, was doing its job, even if it did afford the Congressman the chance to expose a different and no less consequential failure of the Trump administration.
But the hearings were meant to address the work of the Justice Department, and the brunt of the responsibility for the charade that unfolded rests with the AG and the Trump administration. They have worked hard to frustrate and defeat efforts to carry out Congress’s responsibilities. They have either stonewalled routine requests for information or turned hearings into farces.
They have been aided and abetted by congressional Republicans who care more about showing their loyalty to the President than about the well-being of the institution in which they serve.
Thus, after the 2018 midterm elections, Senate Republican leader Mitch McConnell called congressional oversight a form of “presidential harassment” and warned his Democratic colleagues that aggressively investigating the President “would…not work.” The President joined the chorus, complaining that House Democrats would “waste Taxpayer Money investigating” him and oddly threatening, “Two can play that game!”
Barr’s conduct suggested that he too found the Judiciary Committee’s hearing akin to harassment. He showed himself to be adept at misunderstanding even obvious questions and, when he deigned to answer questions, he offered banalities. He generally assumed a posture of bemused indifference toward questions from Democrats, but he eagerly engaged with softball questions from Republicans.
While the Constitution is silent on the subject of congressional oversight of the Executive, it seems clear that the Framers regarded investigation as a necessary and legitimate prerequisite to legislation. The responsibility to investigate, when necessary, was implied and derived from the fact that the Constitution lodged in the Congress “all legislative powers.”
Those who wrote and adopted the Constitution did not expect Congress to deliberate and legislate in the dark.
As Virginia’s George Mason noted during the Constitutional Convention, members of Congress “are not only Legislators but they possess inquisitorial powers. They must meet frequently to inspect the Conduct of the public offices.” Such routine inspection would be one of what James Madison called “subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner that each may be a check on the other.”
In its early history, Congress launched several high-profile investigations. For example, in 1792 it conducted an investigation into the conduct of the Northwest Indian War, rather than asking the President to do so himself. Forty years later the House of Representatives put together a committee to investigate fraudulent activity by the Secretary of War and authorized that committee to issue orders for documents.
Political thinkers have also made clear the importance of legislative oversight. In the middle of the nineteenth century, the British philosopher John Stuart Mill noted that in a well-functioning legislative body “the proper office of a representative assembly is to watch and control the government.”
Following Mill, Woodrow Wilson, then a professor at Princeton University, argued that in the constitutional scheme, Congress’s ability to provide what he called “vigilant oversight of administration” was just as important as its legislative power.
The Supreme Court generally has agreed with Wilson’s view. It has recognized and approved oversight that includes the review, monitoring, and supervision of federal agencies, programs, activities, and policy implementation. It has held that such oversight can be part of the appropriations process and carried out by standing committees, select committees or through studies by congressional staff.
The Court has given broad latitude to Congress to define the scope of its oversight. Thus, in 1927 it upheld the legality of a subpoena issued to the brother of the attorney general as part of an investigation of the AG’s management of the Justice Department. Echoing the language of Mason and Madison, the Court noted that the power to obtain information “has long been treated as an attribute of the power to legislate.”
The Court also noted that Congress did not have to specifically identify the legislative purpose served by an investigation, so long as the subject “was one on which legislation could be had” and so long as it “would be materially aided by the information on which the investigation was calculated to elicit.”
Moreover, the Court has held that the oversight power extends to “inquiries concerning the administration of existing laws, as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them,” and “probes into departments of the Federal Government to expose corruption, inefficiency or waste.”
In a 1951 case, Tenney v Brandhove, Justice Felix Frankfurter wrote that, in reviewing the scope of congressional oversight, “the courts should not go beyond the narrow confines of determining that a committee’s inquiry may fairly be deemed within its province. To find that a committee’s investigation,” Frankfurter continued, “has exceeded the bounds of legislative power it must be obvious that there was a usurpation of functions exclusively vested in the Judiciary or the Executive.”
But last month, in Trump v Mazars, Chief Justice John Roberts, writing for a five-judge majority, retreated from the Court’s prior deference to Congress’s oversight authority, at least in matters where it seeks access to personal information from the president. The Court found that lower courts had not given sufficient weight to separation of powers interests when they upheld a House committee’s subpoenas seeking President Trump’s financial records.
One part of a test Roberts laid out for courts to use in determining the validity of subpoenas requires that “Congress must adequately identif[y] its aims and explai[n] why the President’s information will advance its consideration of the possible legislation.” This requirement limits the discretion the Court had previously accorded to Congress and burdens its oversight of the Executive branch.
However, wittingly or unwittingly, Roberts also pointed to one of the Trump administration’s key tactics in its war against congressional oversight. While noting that throughout American history the executive and legislative branches sometimes have differed about the scope and uses of the oversight power, he observed that these disputes usually are resolved through what he called the “‘hurly-burly, the give-and-take of the political process.’”
That process only works when the parties understand and respect each other’s institutional prerogatives and when they operate in good faith. But good faith and give and take are precisely what has been missing in the Trump administration’s dealings with Congress.
The President and his colleagues have openly defied congressional subpoenas and regularly refused to appear before congressional committees. And, as Barr’s appearance demonstrated, when they do appear, they primarily are interested in frustrating Congress’s oversight role.
The contempt Barr showed for that role is just the latest manifestation of the administration’s assault on the Constitution’s scheme of checks and balances and the norms which make constitutional governance possible.