by Andrew P. Napolitano – June 14, 2018
Amid all the happy hoopla over President Donald Trump’s trip to Singapore, where he began the process for what he hopes will be the normalization of relations between the United States and North Korea and the denuclearization of the Korean Peninsula, has come an effort by the House Intelligence Committee to interfere with the criminal investigation of the president.
The committee’s chairman, Devin Nunes, a Republican from California, and the Republican majority on the committee have demanded that the Department of Justice turn over documents pertaining to the origins of the investigation of President Trump by special counsel Robert Mueller.
And Nunes has threatened Mueller’s superior, Deputy Attorney General Rod Rosenstein, with censure, contempt and even impeachment if he fails to comply. Can Congress interfere in an ongoing federal criminal investigation? Can it get its eyes on law enforcement’s active files? In a word: No.
Here is the back story.
In the pre-9/11 era, when the FBI and the DOJ devoted their work primarily to investigating criminal activity, they both answered not only to the president but also to the House and Senate Judiciary committees. This long-standing relationship came about by way of a check on the exercise of prosecutorial power by the DOJ and the FBI.
These congressional committees approve the budget for law enforcement, the argument went, and as watchdogs, so to speak, they are entitled to know how the taxpayers’ money — and money borrowed in the taxpayers’ name — is being spent.
The relationship between the congressional committees on one hand and federal law enforcement on the other has been a give-and-take, push-me-pull-you relationship that generally led to compromise between Congress and federal law enforcement.
After 9/11, Congress passed the Patriot Act, which, in addition to authorizing FBI agents to write their own search warrants for all sorts of custodians of records — legal, medical, postal and banking enterprises, supermarkets, and libraries, to name a few — gave the FBI a domestic intelligence mission not unlike that of the National Security Agency, which is America’s domestic spying apparatus.
The intelligence mission enabled the FBI to utilize new tools for law enforcement, under the guise of intelligence gathering. Stated differently, by pretending to be looking for spies, the FBI found crooks. Because the legal threshold for spying for intelligence purposes is far lower than the legal threshold for obtaining a traditional search warrant, FBI agents often took the easier route.
But the FBI’s spying mission also subjected it to the scrutiny of two additional congressional committees, one in the House and one in the Senate. This cross-pollination of law enforcement and intelligence gathering — this mixture of two distinct roles, one traditional for the FBI and the other novel to it, one clearly regulated by the Constitution and the other purporting to be outside of it — tempted not only FBI agents to use the tools of spy-craft for law enforcement (even though it’s prohibited by the Fourth Amendment) but also Congress.
Now back to Rep. Nunes and the House Intelligence Committee.
The Republicans on that committee are determined to use their regulatory powers over federal intelligence gathering to investigate federal law enforcement. They are doing this because they claim to smell a rat in the origins of the special counsel investigation and they want to get to the bottom of it. In order to get to the bottom of it, they have demanded to see documents in the custody of special counsel Mueller to determine whether there was sufficient probable cause to commence the criminal investigation of Trump back in November 2016.