WASHINGTON (Circa) — A combative four-hour hearing Thursday failed to resolve differences between top law enforcement officials and Republicans in Congress over subpoenas to provide sensitive documents, but even with a new ultimatum set, the GOP may not be willing to resort to the most extreme and archaic sanctions in their arsenal if they are unsatisfied with the response.
Deputy Attorney General Rod Rosenstein and FBI Director Christopher Wray appeared before the House Judiciary Committee to face questions about a Department of Justice inspector general’s report on the investigation of Hillary Clinton’s email server and concerns about special counsel Robert Mueller’s probe of possible collusion between President Donald Trump’s campaign and Russian efforts to influence the 2016 election.
The hearing followed weeks of roiling tension over subpoenas Republicans have filed seeking more than 1 million pages of records. Though hundreds of thousands of pages have been turned over, Republicans say key documents are still missing, including some relating to surveillance of a former Trump adviser and the use of an informant to interact with the Trump campaign.
Even before the hearing was over, Republicans made clear they were unsatisfied with the answers they were getting about delays and redactions. They remained skeptical of arguments that documents pertaining to the ongoing Russia investigation cannot be released.
“To say, ‘Oh, now we can’t turn that over, its classified,’ that means government can do things under counterintelligence purposes and just never be held accountable for anything,” Rep. Ron DeSantis, R-Fla., told Sinclair.
Rosenstein and Wray spent much of Thursday’s hearing playing defense against Republican allegations of bias, stonewalling, and corruption in their agencies. Rosenstein often pushed back forcefully, challenging unsubstantiated claims and anonymous reports about the Clinton and Russia investigations.
Throughout the long-running struggle over access to sensitive documents, some Republicans have alleged the DOJ and FBI are trying to cover up wrongdoing or hamper efforts to exercise what they insist is legitimate congressional oversight. In a recent radio interview, House Speaker Paul Ryan, R-Wis., said officials must decide whether they are “part of the cleanup crew or the cover-up team.”
Rosenstein and Wray made clear Thursday they consider themselves part of the cleanup crew, vowing to hold employees accountable for any violations of law or department policy. However, they stressed that delays in production of documents are not deliberate attempts to slow the investigation.
“For months, we’ve been working with your committee to make witnesses available, answer questions, and produce or make available to you and your staff over now 880,000 pages,” Wray said in his opening statement, telling lawmakers about 100 employees are working around the clock to process their requests.
In a recent Fox News report, unnamed Republican House Intelligence Committee staffers claimed Rosenstein threatened to investigate them and subpoena their communications if they continued pursuing their aggressive requests for documents. CNN later reported that Rosenstein warned the staffers he would be entitled to discovery if they carried out threats to hold him in contempt.
“Who are we supposed to believe, staff members who we’ve worked with who’ve never misled us or you guys who’ve we caught hiding information from us, who tell a witness not to answer our questions, who are we supposed to believe?” asked Rep. Jim Jordan, R-Ohio.
“You should believe me because I’m telling the truth and I’m under oath,” said Rosenstein, who also disputed that the department was “caught hiding information.”
Rosenstein rejected complaints that Mueller’s investigation is dragging on too long after Rep. Trey Gowdy, R-S.C., urged him to “finish it the hell up."
"I've heard suggestions that we should just close the investigation. I think the best thing we could do is finish it appropriately, and reach a conclusion," Rosenstein responded.
Democrats at the hearing pressed the officials to respond to President Trump’s tweets about the Mueller investigation as well, including one he posted hours before the hearing demanding that Mueller “list his conflicts of interest.”
“If there were any conflicts of interest that were brought to our attention, I would discuss it with Mr. Mueller and then there could be review within the department if there were a credible allegation of a conflict of interest,” Rosenstein responded. “I am not aware of any disqualifying conflict of interest.”
President Trump often refers to the team conducting the special counsel investigation as “13 angry Democrats” because many of the attorneys involved have donated to Democratic candidates or had ties to the Democratic Party in the past. Wray and Rosenstein, both Republicans, rejected that characterization.
Trump has grown increasingly impatient about the pace of document production by his own Justice Department, at times threatening to take unspecified actions to intercede.
If the FBI or DOJ was infiltrating a campaign for the benefit of another campaign, that is a really big deal. Only the release or review of documents that the House Intelligence Committee (also, Senate Judiciary) is asking for can give the conclusive answers. Drain the Swamp!— Donald J. Trump (@realDonaldTrump) May 19, 2018
“I have tried to stay uninvolved with the Department of Justice and FBI (although I do not legally have to), because of the now totally discredited and very expensive Witch Hunt currently going on. But you do have to ask why the DOJ & FBI aren’t giving over requested documents?” he tweeted Monday.
During the hearing, Wray noted an irony that the members grilling him about an inspector general’s report critical of former FBI Director James Comey’s inappropriate disclosure of information about an ongoing investigation were simultaneously demanding that he disclose information about an ongoing investigation.
“We’re trying our hardest to produce documents as quickly as we can and as completely as we can,” Wray said. “We also have an obligation to protect ongoing criminal and counterintelligence investigations. We also have an obligation to protect grand jury secrecy. We also have an obligation to protect sources and methods, and we’re sworn to do those things just like we are to be responsive to congressional oversight.”
While Rosenstein and Wray were jousting with lawmakers Thursday, the House voted on a resolution requiring the DOJ to turn over the remaining requested documents by next Friday. The resolution, passed along party lines, carries no legal force, but failure to comply with it may provide justification for Republicans to hold Rosenstein in contempt or impeach him.
A Rigged System - They don’t want to turn over Documents to Congress. What are they afraid of? Why so much redacting? Why such unequal “justice?” At some point I will have no choice but to use the powers granted to the Presidency and get involved!— Donald J. Trump (@realDonaldTrump) May 2, 2018
“Resolved, That the House of Representatives insists that, by not later than July 6, 2018, the Department of Justice fully comply with the requests, including subpoenas, of the Permanent Select Committee on Intelligence and the subpoena issued by the Committee on the Judiciary relating to potential violations of the Foreign Intelligence Surveillance Act by personnel of the Department of Justice and related matters,” the resolution said.
The vote was largely symbolic. The DOJ is already under subpoena to provide the documents, and the resolution imposes no additional penalty for failure to comply. It mainly demonstrates that the House Republican conference stands united behind the demand for documents.
“In theory, it allows those seeking document requests to tell the Justice Department, ‘It’s not just one member asking. The whole House is concerned about this,’” said Tom Fitton, president of conservative watchdog group Judicial Watch, which is also embroiled in legal proceedings to obtain documents from the department.
If GOP leaders decide next Friday the DOJ has not provided all of the documents requested, some members are already floating the prospect of more severe action against Rosenstein.
Lawmakers of the House Judiciary Committee are angrily accusing the Department of Justice of missing the Thursday Deadline for turning over UNREDACTED Documents relating to FISA abuse, FBI, Comey, Lynch, McCabe, Clinton Emails and much more. Slow walking - what is going on? BAD!— Donald J. Trump (@realDonaldTrump) April 7, 2018
“If it was up to me, we would have consequences. You’d be held in contempt. We would be ready for potential impeachment. I would be willing to cut Rosenstein’s budget,” DeSantis said. Thursday’s resolution may serve as a warning that the votes are there to do it.
“The resolution is non-binding,” said Richard Arenberg, a former longtime Capitol Hill staffer and co-author of “Defending the Filibuster: Soul of the Senate.” “It is basically a shot across the bow, a demonstration the speaker and a majority of the House are behind the threat of contempt or impeachment. Threatening to do it is not the same thing as doing it, however.”
A contempt referral or an impeachment vote may not carry much practical consequence for Rosenstein in itself. Under Presidents George W. Bush and Barack Obama, several executive branch officials were held in contempt, but none were prosecuted.
“I think it’s important to understand, Mr. Chairman, that the fact that the department receives a subpoena and is unable to comply immediately because of volume or they need to make redactions, that doesn’t mean that we’re in contempt,” Rosenstein told Judiciary Committee Chairman Bob Goodlatte, R-Va., Thursday.
The House of Representatives seeks contempt citations(?) against the JusticeDepartment and the FBI for withholding key documents and an FBI witness which could shed light on surveillance of associates of Donald Trump. Big stuff. Deep State. Give this information NOW! @FoxNews— Donald J. Trump (@realDonaldTrump) November 30, 2017
According to Josh Chafetz, a professor at Cornell Law School and author of “Congress's Constitution: Legislative Authority and the Separation of Powers,” the House has the power to determine whether the DOJ is in compliance with a subpoena, but lawmakers have typically taken their cases before a judge instead in recent decades.
“Just as courts get to rule on whether the privilege properly defeats the subpoena in court proceedings, so too Congress gets to rule on whether the privilege properly defeats the subpoena in congressional proceedings,” he said.
The House held Attorney General Eric Holder in criminal and civil contempt in 2012 for failing to turn over documents in the investigation of the Fast and Furious operation, but the Justice Department declined to pursue prosecution. Republicans then voted to ask a federal court to compel Holder to comply with a subpoena. The ensuing court case and appeals stretched on for several years.
"It not only makes the congressional houses look impotent, it also takes forever,” Chafetz said of pursuing a remedy through the courts. “The House didn't finally get all of the documents it wanted from Eric Holder, for example, until after the Obama administration had left office.”
Though an effort to impeach Rosenstein would likely die a quick death in the Senate, where a two-thirds supermajority would be needed to convict him, Democrats worry the true motivation for the GOP attacks is to give Trump a reason to fire him. They fear Republicans are demanding documents they know the DOJ cannot release to enable Trump to replace Rosenstein with someone willing to interfere with Mueller’s work, if not halt it completely.
“It seems inconceivable that he would be convicted, unless something new and really shocking comes out,” Chafetz said. “The point of impeachment would presumably be to embarrass him, but it's not at all clear that his critics would win the increasingly high-stakes public politics of it.”
Michael Gerhardt, a professor of constitutional law at the University of North Carolina and author of "The Federal Impeachment Process: A Constitutional and Historical Analysis," said the DOJ and FBI may have valid reasons for withholding certain documents despite the subpoenas.
"They might have a privilege in keeping documents confidential that pertain to litigation, or the House might be trying to interfere with an executive branch function," he said. "This latter is a separation of powers concern that the legislative branch might be trying to interfere with a basic executive branch function."
Executive branch officials have rarely been impeached or prosecuted for contempt of Congress, but lawmakers can use a process called “inherent contempt” to try an official themselves. In 1934, the Senate convicted former Assistant Commerce Secretary William P. MacCracken Jr. of contempt and sentenced him to ten days in jail, but there is no indication Republicans are willing to go that far at this point.
“This would permit the House to arrest and Rosenstein and ‘lock him up,’” Arenberg said. “This process is very rare and I don’t believe it has been attempted in about 80 years. The House is not likely to do such a thing, especially in an election year.”
Once the July 6 deadline arrives, Fitton said Republicans would need to do more than talk about how upset they are to prove they are serious.
“They will do what they have done, which is inveigh against what is going on,” he said. “If I was them, I’d try to get the president involved. The Justice Department isn’t going to do it.”
Fitton suggested Trump could bring in independent officials from outside the DOJ to evaluate the documents and determine how they can appropriately be provided to Congress.
“Certainly Mr. Rosenstein doesn’t seem terribly impressed by the threats, so something else is going to have to be done to get the agency’s attention,” he said.
There are significantly less extreme options for GOP members to express their displeasure as well.
“For instance, the House could use its power of the purse, cutting funding to DOJ or even zeroing out Rosenstein's salary,” Chafetz said.
Other possible tools available to Congress to pressure Rosenstein include holding more public hearings or blocking DOJ nominees. That could place House Republicans in direct conflict with the Republican administration, a standoff in which the Republican president may side against his own Republican appointees.
“The oddness here comes from the fact that Trump is at open war with his own DOJ, but is constrained from firing its leadership by the fact that he's currently the subject of an investigation,” Chafetz said. “So effectively, the president is allying with the members of Congress who are going after the deputy attorney general, who is at least formally within the president's authority to fire.”
“Strange times,” he added.