President Biden, a former US Senator, has called for the criminal prosecution by his Justice Department of anyone who refuses to comply with a congressional subpoena, specifically Trump supporters, called to talk about the January 6, unarmed but vandalizing, politically motivated, mob violence at the Capitol. Of all people, he should know that call is legally and politically wrong. See, e.g., Biden: DOJ should prosecute those who defy Jan. 6 panel subpoenas.
Four reasons explain why this “call for blood” is beyond blundering; it seems a war-whoop for partisan vengeance, disserves our nation, is below his high office, and should be retracted.
First, having run congressional oversight hearings for five years for House Oversight and the joint committee investigating Waco, realities bear telling, “untold secrets of Congress.”
Among untold secrets, congressional “hearings” are not like judicial hearings. My past includes clerking on the US Court of Appeals, 9th Cir., and litigating – including federal court hearings. Nothing could be farther from court procedure than Congress, more removed from objectivity.
Example: Despite being called “oversight,” most congressional hearings are assembled to make some political point. If properly conducted, they are seeking to highlight, correct behaviors, and reorient part of the federal government – based on discovered “waste, fraud or abuse.”
When improperly motivated, they are a “gotcha game,” intended to score political points against the other party, or in this case, to implicate, castigate, if possible, humiliate a former president, based on personal animus, perhaps to prevent a second political run.
More to the point, congressional hearings get off track fast, turning partisan if not kept tethered to the rule of law, something this Democrat-led House and now Senate have allowed.
A “congressional subpoena” is – by its nature – suspect of being partisan. While witnesses are expected to show up, testify, cooperate, they often decline. Reasons are many; from a claim of executive privilege to apprehension, they are being used for politics, inconvenience, health, fear.
These reasons are not always wrong. Conducting the Waco hearings, having been a straight-line litigator, I was shocked. Democrat colleagues called parties we subpoenaed and told them not to honor the subpoenas, scared them into nonappearance. To me, that was utterly unethical.
When we appealed this behavior to House Counsel, what seemed a clear violation of the Canons of Ethics, we were told courts considered “Congress” one legal party, so if one part of Congress seeks a witness, another can dissuade them, even if it seems unethical. To me, that was incomprehensible. It made a mockery of the whole hearing process, ethical truth-seeking.
Likewise, all sorts of political antics are tolerated. At that time, current Senate Majority Leader Schumer was in the House, and one day – seemingly in violation of DC law, congressional norms, any truth-seeking purpose, he brought an AK-47 to the hearing – as a display. The press loved it, the rest of the hearing – focused on truth-seeking – paled, and he made headlines.
So, congressional hearings – and subpoenas – are too often used for political effect, even if coincidentally useful in fact-finding. One last political secret: All those Hill members who are lawyers, including Biden, know that these hearings are purely political, not judicial.
Second, Biden’s statement about prosecuting former Trump officials who assert executive privilege, who decline attendance at a show-trial – smacks of demagoguery. Presidential advisors and former advisors seldom testify – for valid, long-standing, prudential reasons.
Biden knows this. He knows advice given by a president is sacrosanct. If it could be compelled by opponents in Congress, subject to personal penalty, forced out for political reasons, advisors would hesitate – hesitate to join the team, hesitate to give candid advice, hesitate to serve.
When handling a range of oversight issues, I periodically met with Counsel for the Clinton White House, Justice Department, Defense, State, and NASA – to talk through our legitimate aims. Like former Trump advisors, they made these same arguments.
What did we do? Did we hold them in contempt, throw them in prison, prosecute them in Congress, through the Courts, make a criminal referral? No, unless the activity in question was patently criminal, no referral. We acceded, accommodated them, knowing tides turn.
This is how democracy survives, is supposed to work, how a republic remains tied to the rule of law, due process, separate branches, leaving room for institutional prerogatives to exist – not becoming a partisan, one-party, ego, or ideological machine. Sometimes, not insisting is good.
Third, Biden knows that congressional subpoenas are – as a matter of historical record – seldom prosecuted, only then for life-and-death reasons. Even if Congress tries, courts usually demur.
Whether relying on inherent oversight powers, statute, or a fictional reason, throwing political opponents in prison is not done – or has not previously been done in America. The empirical record should have given him pause – we do not take vengeance by politicizing Justice.
Fourth, Biden’s biggest error stains this administration badly. In America, Congress has seldom – until the anti-Trump temperament in Congress – lowered itself to political impeachments, show trials, dismissal of due process, and this strange, ends-justify-means, craven partisanship.
Yet, that is where we seem to be. The Biden Justice Department calls parents “domestic terrorists” if they speak at school board meetings against Marxism or for child safety. Border, crime, and drug laws go unenforced, and now the President pushes prosecution of his political opponents – just for asserting the right to be silent and not to be coerced.
Bottom line: Congressional subpoenas flow from implied oversight authority. They are not judicial subpoenas. They also are not for partisan games or personal intimidation. Biden knows all this. For a president to push criminal prosecutions for non-compliance – is shocking.
This President seems intent on outcomes without honoring the process, processes without honor. He disparages law enforcement, undermines Border Patrol, undercuts local police, imperils Americans at home and abroad, is losing allies, offending and scaring parents, shutting down businesses, and now – insists on prosecuting advisors to a former president for resisting a political subpoena. Of all people, he knows this is wrong. He should retract the idea.