Congress needs to push Garland to unravel DOJ surveillance scandal

Last week highlighted a new extent to which Donald Trump reportedly was willing to abuse his power for petty personal vendettas: He reportedly wanted the Department of Justice to stop Saturday Night Live from parodying him. That followed the more serious June 10 revelation that Trump’s Justice Department secretly obtained private communication data from journalists and Democratic members of Congress.

Congress is now investigating — but there is an obstacle looming: the Biden DOJ has not said it would cooperate.

Shielding predecessors from outside scrutiny would be consistent with the Justice Department having appealed a May 3 decision from federal judge Amy Berman Jackson, who had ordered disclosure of a DOJ memo leading up to former Attorney General William Barr’s “disingenuous” 2019 public presentation of the Mueller Report. The conservative Wall Street Journal editorial page described Attorney General Merrick Garland’s appeal as a “ride to predecessor Bill Barr’s rescue.”

Sen. Sheldon Whitehouse (D-R.I.) has written that the Biden administration seems more interested in “moving on than in looking back.” That approach, Whitehouse observed, sends a terrible message to the future: “Why not be as corrupting as you can be if there’s never going to be any consequence?”

In Garland’s defense, DOJ has institutional concerns to consider, and he has asked Inspector General Michael Horowitz to investigate the Trump Justice Department’s secret surveillance of Congress and the press. That investigation, however, will likely be too slow to lead to any needed legislative reform. In the past, the IG’s office has taken more than 20 months to report.

Twenty months from now, Congress may be under Republican control. Don’t look for that Congress to censure Trump attorneys general or to enact preventive measures aimed at correcting abuses under Barr or Jeff Sessions.

Congress needs to up the ante.

Constitutional tools are available to encourage timely DOJ cooperation with the House investigation. Legislative oversight of the executive branch is an implied congressional power under the constitution’s Article II. Oversight is a “check-and-balance” safeguarding the rule of law.

The Trump administration regularly obstructed congressional oversight through downright refusal to cooperate.

If Garland is to restore faith in the Justice Department, as President Biden promised, equivocating on respect for the other branches is unhelpful. Given the department’s prior excesses favoring executive power and blocking congressional oversight, Garland should be uplifting Congress’s constitutional role, rather than erring on the side of protecting predecessors and departmental prerogatives.

On June 14, the House Judiciary Committee announced that it had asked the DOJ to turn over the subpoenas for the communications data of reporters and representatives. The committee also asked DOJ to preserve documents relating to the data seizure.

The committee should not wait months for a voluntary response. Subpoenas should issue promptly for those documents. As we learned, subpoenas can take a long time to enforce.

Congress could also deploy its power of the purse, as prescribed in an October 2020 study from the University of Pennsylvania’s Center for Ethics and the Rule of Law on reforming the Justice Department: “The DOJ requests and receives funding from Congress, and . . .  as part of the budgetary process, Congress should make sure that information is provided.” Congress’s assertive exercise of all its constitutional power is particularly appropriate in an investigation of a matter potentially infringing on the separation of its powers from those of the executive branch. Some democracy advocates have even recommended use of Congress’s contempt power.

Using some or all these tools can lead to an optimal, prompt resolution: a compromise balancing Congress’s right to oversee, investigate and legislate; the public’s right to know; and the Justice Department’s long-term institutional interests. The Judiciary Committee needs to flex its muscle to help ensure its powers and purposes.

In “On Tyranny,” Yale historian Timothy Snyder’s primer on resisting authoritarianism, Snyder advises that one critical lesson of 20th century totalitarianism is that defending institutions is vital to preserving democracy. But, Snyder writes, “institutions … fall one after the other unless each is defended from the beginning.”

Congress needs to do so vigorously while it can.

Dennis Aftergut is a former Supreme Court advocate and federal prosecutor in San Francisco.