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Political Persecution – Via Congressional Subpoenas


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.

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11 months ago

This should be a major point in the discussion regarding Biden’s mental capacity. He SHOULD know all the points in this discussion, but his mental state isn’t what it was when he was in Congress.

11 months ago

The problem is that Biden, in his demented state thinks he is a dictator, they’re trying but he isn’t yet.
We need to fight back and throw all the leftist socialists out. America is still the last best hope for freedom lovers. That is why so many want to come here. Those who escaped from socialist/communist nations are appalled that so many listen to Bernie Sanders lies and believe it.

11 months ago

It’s the chief unifier in action

11 months ago

The sad part is I doubt he even realizes half of what he does and can’t remember the other half. Just call him Puppet Joe

11 months ago

So the Democrats murder a Air Force Veteran and arrest who knows how many for trespassing, all unarmed. Meanwhile BLM loots and burns and murders and nobody is arrested. Somehow all this is Trump and his friends fault? What did they think was going to happen when a 50 yr. politician that has done nothing but enrich himself and his family, doesn’t campaign, and is clueless where he is, wins the election? There is no way he legitimately won. People are pissed and went to the Capitol. Everyone that wants fair elections should have gone to show these corrupt politicians we won’t have it! Biden needs to be impeached! He is the worst president we have ever had. He’s lying right now saying that the spending bill will cost zero, zero, zero!

11 months ago

I completely agree with the above.

11 months ago

Wasn’t Joe Biden first in his class in law school??? I certainly wouldn’t call him legal scholar. Although he must have someone in his administration who actually understands the law as it relates to this matter.

Todd jaffe Md
11 months ago

Remember, he is not fully there. He is so patently senile it is sad.

11 months ago

He is not president. No real leader would act this way.

11 months ago

Biden can stuff his DOJ patsy’s up his [email protected]@.

11 months ago

He is not president. He is a fake Catholic, un-elected to presidency, put in by fraud, lying, cheating. Half or more of the photos I see of him, don’t even look like him? How many Bidens are there? Or are there any at all? Hmmm

11 months ago

Face it my friends, this country has been taken over by a pair of “Chosen”, “deep state” FRAUDULENTLY “elected”communist chinese CONTROLLABLE “puppets” (as well as members of CON-gress), that in MY opinion,, were ALSO “elected” in the same manner…RAMPANT VOTER FRAUD, and foreign interference, all in the effort to “reinstate” FRAUD obama’s ‘fundamental transformation of our constitutional republic remove PRESIDENT TRUMP as he was EXPOSING these “deep state” communists,/radical muslims, and the nefarious “plans” of the “CABAL” to turn this country into a communist-controlled ,third-world banana republic cesspool, and the citizens into SUBJECTS of the communist party, to be used, abused TAXED and REGULATED to death, or iof all do not kowtow, any “dissenters” will be rounded up,arrested, sent to fema “reeducation” camps (that are said to be opening up as I write this) , in order to be “reprogrammed”, or EXECUTED by guillotine (included in the obamacare bill) for “non-compliance”..
WAKE UP AMERICA, before we no longer have a country.

11 months ago

Well, just maybe, the ‘clueless one’ acting as POTUS, isn’t the real Joe Biden. A lot of opinions out there about that. Biden, being a Lawyer, would know all the things mentioned in this article, even if he was slowly losing his memory, he would remember things pertaining to law matters. Or if it is him, he’s had plastic surgery because there are pics where he looks completely different, I’ve seen them myself. In any case, it seems these Marxist demons are past caring about our laws in this country, because they’ve been building upon their Communist domain for decades and have everyone in the places of our government they need to continue their agenda to destroy the principles our country was founded upon. Our colleges and Universities have been teaching Marxist anti-Constitutional curriculum to our kids for nearly 40 years. The Marxist Party made a critical mistake leading up to the 2016 election. They really believed most American’s were stupid. President Trump exposed them through their own personal loathing of him. Now, since being exposed, they are brazen in their actions of lawlessness. God help us all!

11 months ago

Something has to be done with Biden, Harris, Pilosi and Schumer. They are ruining the country,. If something is not done soon, there will be no United States of America – it will be the Socialist States of America.

11 months ago

They need to go.Biden,Harris and pelosi need to be run out of the United States. They hat the country and the people they need to go to China where they can control people and look like fools .I believe the people will buy the plane tickets.God bless the USA.

11 months ago

spot-on evaluation!

Steven H
11 months ago

Welcome to the United States of China. Try to imprison/murder your opponents and rule through fear.

11 months ago

This moron is spoiling for a rebellion. It’s due!

I was getting/now have PTSD, thx Joey! AH
11 months ago

The Devil and his Minions are alive and well in the Dark House.
Joey and his ILK shud be tried for Treason against what is getting to be
a Not Great Nation at the rate it is going.
That these traitors are getting away with ruining this country is mind boggling indeed.
And nothing is being done about it.
IF one reads (Drain the Swamp) by Ken Buck, you will see why!! Its all Rigged against us.

Then there was the IRS and Bootleggers – IRS will be gone after all is settled. YA RIGHT
One of the biggest, crooked systems indeed, controlling legalized theft.

Where is the Money coming from for the 5.9% SSEC raise ??
ENDLESS BAD tactics abound.


11 months ago

If any subpoena is responded to by a Trump supporters, they should comment that they were concerned that the DemocRats had conspired with the rabble crowd to use that as a harassment tactic… and otherwise they have no information the can support with any answer other than “I don’t know or recall!, but I suspected the DemocRats were behind and /or supporting it.”

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