Overreach, rather than oversight: Jordan and MAGA GOP skating beyond the law
The attempt by conservative House Republicans to intimidate Manhattan District Attorney Alvin Bragg is an abuse of power and antithetical to our federalist structure of government. Congress has no oversight authority over local district attorneys. Former President Donald Trump’s enablers are engaged in nothing but a shameful attempt to protect him from legal scrutiny.
On Saturday, House Judiciary Committee Chair Jim Jordan (R-Ohio) and his fellow MAGA House committee chairs, James Comer (R-Ky.) of Oversight and Bryan Steil (R-Wis.) of House Administration, sent Manhattan District Attorney Alvin Bragg a second letter demanding that he appear before them. This one added a March 31 deadline to their initial request for documents and testimony about the grand jury investigation Bragg’s office is overseeing into possible crimes by Trump.
Thankfully, the attempt at intimidation isn’t working. On March 23, Bragg sent a scathing rebuff to the Republicans’ original letter. Then on Sunday, in response to the congressmen’s second letter, Bragg’s undaunted answer was that “we will continue to follow the facts and be guided by the law in everything we do.”
Why have conservative Republicans in the House decided to try to exercise review of the Manhattan District Attorney? The answer is obvious; they want to discredit the investigation, play to their base and pressure Bragg not to indict Trump.
In doing so, they may also be hoping to pierce the secrecy of the grand jury proceedings in which Trump is being investigated. That secrecy exists for reasons that Jordan and his cohorts understand.
To give potential defendants like Trump extrajudicial discovery of the facts of criminal investigations jeopardizes those investigations.
That can happen because the target of the investigation may use prematurely disclosed information to tamper with witnesses and cut off leads before an investigation is complete. To avoid such dead ends for justice, U.S. Attorneys General typically decline to answer questions from Congress about pending federal criminal investigations. The same is true for a local district attorney like Bragg.
Additionally, in his case, states have sacred rights to enforce their own laws, protected by the Constitution’s 10th amendment, which reserves all unenumerated government authority to the states. That authority is compromised by congressional threats upon sovereign states’ ability to hold the people’s representatives accountable to state law. State district attorneys are chosen locally, usually by election, and are not part of the federal government. Congress does not fund or oversee these offices in any way.
The MAGA chairs, of course, are free, like anyone, to criticize the investigation — but their claim that they are conducting legitimate oversight is a makeweight to undermine the checks which a state prosecutor is providing on their party’s leader.
In case that partisan purpose isn’t self-evident, Jordan and his colleagues’ latest letter opens with laughable attempts at justifying their purported oversight. Sunday’s letter suggests that Bragg’s investigation of a former president has dangerous implications for the presidency: “[A] president could choose to avoid taking [nationally beneficial] action … because it would negatively impact New York City for fear that he would be subject to a retaliatory prosecution in New York City.”
One glance at history betrays the argument. Which modern president would have been so intimidated had a local prosecutor investigated him? As for the future, how likely is a prosecution without compelling evidence that crimes were committed? There is simply no basis for believing any president would be chilled from taking nationally beneficial action because of this prosecution, should it occur.
The letter goes on as if we are blind to current reality: “Likewise, because the federal government has a compelling interest in protecting the physical safety of former or current presidents, any decision to prosecute [one] raises difficult questions concerning how to vindicate that interest.”
Exactly who is in danger here? Donald Trump was on the hustings Saturday repeating to his followers, “I am your retribution.” The day before, Alvin Bragg received a death threat within hours of a Trump tweet about “death and destruction” if he is indicted. Phony rationales for legitimacy are tip-offs to illegitimacy.
In addition, improper congressional probing of an ongoing prosecution is wholly unnecessary. We have a different and powerful check on potential abuse by prosecutors. They need to convince 12 jurors beyond a reasonable doubt of any defendant’s guilt.
Jordan, Comer and Stiel would like to pull the wool over our eyes by dressing up a partisan wolf’s motivation in the sheep’s clothing of oversight. Alvin Bragg should not participate in the charade.
Erwin Chemerinsky is dean and a professor at the University of California, Berkeley School of Law.
Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.
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