‘You And What Army?’ How The Obama Administration Strongarms Congress

Cliff Smith Attorney
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As Attorney General Eric Holder leaves town, it is clear that the Obama administration has learned that Congress can be strongarmed into not fully exercising its constitutional oversight duty, with minimal political blowback. Far from dissuading the White House from this type of thinking, Holder’s Department of Justice has often been an integral part of it.

The Obama administration has ignored, bullied, and/or stonewalled every congressional investigation they found inconvenient. It is only the intervention of outside groups through the Freedom of Information Act (FOIA) process that significant progress has been made.

The left’s favorite subject of mockery is the right’s so-called “obsession” with the Benghazi attack. “Dude, this was like two years ago,” is how Former White House National Security Council spokesman Tommy Vietor put it. However, Congress subpoenaed numerous documents related to Benghazi, but they remained secret until just recently when Judicial Watch, an non-profit transparency group, obtained the documents using FOIA. Even administration allies usually won’t defend Congress’s exclusion. But for Judicial Watch reinvigorating the investigation, the House Benghazi Special Committee wouldn’t exist.

Alone, this could be a one-time mistake. But it isn’t alone. The equally troubling IRS scandal, targeting conservative organizations for their political views, has developed similarly. For months, Congress was told that subpoenaed emails were lost, as numerous hard drives had crashed, conveniently belonging to senior IRS officials involved in the scandal. Again, Judicial Watch later learned via a FOIA request that actually, all of the emails were backed up, the government just thinks they are too difficult to find. Judge Emmet Sullivan, a Democratic appointee who has a reputation for being scrupulously fair and tough, has launched his own investigation into the episode and is ordering the IRS to swear under oath to the truth.

The Fast and Furious gun-running scandal has followed a different but equally troubling trajectory. After months of investigation, Holder withheld documents sought by Congress, claiming that executive privilege could lawfully be invoked. Meanwhile, the White House claims it was totally unaware of the operation. For those keeping score at home, both cannot be true. Holder was later held in contempt of congress in a bipartisan vote, although he has largely ignored that since the person in charge of enforcing the citation is a U.S. Attorney, his employee. Yet again, Judicial Watch is having more luck with FOIA than Congress did using its constitutional oversight power.

The administration’s calculation is clear: It isn’t afraid of Congress. It is afraid of federal judges.

The reasons for this are obvious: Congress is driven by the news cycle, or at least by the election cycle. They get their power not only from the Constitution, but from the media and their constituents. If the administration can argue Congress is on a partisan witch hunt, flip the media narrative on them, and drag out the process long enough so that the public is either confused or apathetic, you can neuter their power. Sure, Congress could do harsh things like refuse to fund programs in response, but when the administration’s entire narrative since the 2011 has been to paint Congress as obstructionist, doing so would play into their hands.

Federal judges, particularly hard-nosed institutionalists like Judge Sullivan, cannot be cowed so easily. The news cycle is irrelevant to them, as is any other sort of political intimidation.

We can thank the framers of the Constitution for realizing the importance of an independent judiciary, and the 89th Congress for creating FOIA. But a deeper problem remains. FOIA was intended to be a safety valve method of investigating the administration of government, not the primary one. Everyday citizens cannot hope to grasp the complexity of every issue that comes in front of Congress while still carrying on with their daily lives. We are a representative democracy for a reason.

Congress is and must be the primary instrument for holding the executive branch accountable. Their investigations should be about the rule of law and the Constitutional separation of powers, not a high-stakes game involving the executive taunting Congress with, “You’re going to make me? You and what army?”

Controversy over congressional investigations is not new. It is appropriate for the executive to criticize them and make their point of view known should they feel the investigation is a political witch hunt or is otherwise unfair. However, brazenly strongarming Congress and denying them what is legally due because you don’t think they will have the political will to enforce it, is quite new. It is also terribly dangerous for our constitutional system of checks and balances.

While the Attorney General is not directly responsible for all of these events, as the government’s attorney, it is appropriate to hold him accountable for condoning such behavior. Whoever replaces Attorney General Holder should be grilled as to their views on how the executive should respond to congressional investigations. If the nominee does not give acceptable answers, they should not be confirmed.

Cliff Smith