Will Congress ever hold our federal agencies accountable for contempt?

Will Congress ever hold our federal agencies accountable for contempt?
© Greg Nash

FBI official Peter Strzok’s recent testimony before the House Judiciary Committee continued a time-honored practice of elected members of Congress doing nothing about the open contempt of federal departments or agencies and their unelected officials.

Strzok was just the latest in a long procession of officials, from both Democratic and Republican administrations, who refused to answer questions, produce documents, or otherwise comply with the constitutional authority of Congress to exercise oversight. Aside from outraged words of protest or toothless sense-of-Congress resolutions, none — not one — has suffered any serious consequences.

Strzok’s defiance began over a simple number: how many interviews the FBI conducted during its 2016 election investigation. As Strzok looked over to a stone-faced FBI lawyer, Rep. Trey GowdyTrey GowdyTrey Gowdy sets goal of avoiding ideological echo chamber with Fox News show Fox News signs Trey Gowdy, Dan Bongino for new shows Pompeo rebukes Biden's new foreign policy MORE (R-S.C.) exclaimed in frustration, “I’m asking for a number!” Not asking for what anyone said, or even the identity of those interviewed, just the number. Strzok responded with what became a mantra to virtually every query about his role in the Clinton email and Russian collusion investigations: “Counsel for the FBI, based on the special counsel’s equities, has instructed me not to answer.”

I am not quite sure what “equities” are, but they are not constitutionally recognized privileges. Strzok is a federal employee, appearing before a committee with oversight authority looking into a matter of great public interest. The FBI ordering him not to answer on the basis of “equities” is manifestly wrong. Strzok could have just as well cited “niceties” in brushing aside the committee’s questions.

For years, I have written and testified in favor of Congress enforcing its inherent authority over federal agencies. But those agencies have become ever more obstructive in refusing to comply with the core function of Congress, which is its oversight and its check on executive branch abuse. Strzok’s testimony shows just how far outside the constitutional lines agencies have gone in unilaterally dismissing Congress’s inquiries.

A 1982 directive called the “Reagan Memo” delineated the process for invoking privilege in a conflict with Congress. It directs an agency head to present the allegedly privileged information to the White House for review. Any invocation of executive privilege should then be accompanied by a formal declaration from an agency head or the president.

Yet, increasingly, witnesses refuse to answer questions without making such a formal invocation. In his hearing, Strzok did not invoke a privilege. He simply nodded to an unidentified FBI lawyer sitting behind him who proceeded to signal, like Caesar, what questions would be answered. Anything that might significantly shed light on the underlying allegation of FBI investigatory bias was deemed unanswerable.

This brings us back to Congressman Gowdy, asking Strzok a question about a investigation now closed and that clearly was not privileged: “Between July 31 and August 8, how many interviews did you conduct related to the alleged collusion between Russia and the Trump campaign?” A finite number of privileges exists to that question.

The classic privilege is to refuse to give answers containing presidential communications. That is not absolute and also not remotely involved here. There is privilege that can be asserted over the “deliberative process,” whereby agencies withhold information that would reveal internal deliberations on a policy or action. This has always been a contested privilege and is particularly dubious when asserted against an oversight committee and, again, not remotely viable in this case.

There is attorney-client privilege, which is not at issue with an FBI agent testifying before Congress unless his personal attorney makes such an assertion. House Judiciary Chairman Bob GoodlatteRobert (Bob) William GoodlatteFight breaks out between Jordan, Nadler over rules about showing video at Garland hearing The job of shielding journalists is not finished Bottom line MORE (R-Va.) was correct in noting that the unnamed FBI lawyer was not Strzok’s personal lawyer. Then there is the claim of classified or national security information, which was not asserted here and does not appear relevant.

Finally, there is the shaky claim of law enforcement privilege. Based on a controversial 1984 opinion by the Justice Department’s office of legal counsel, this privilege is raised when the information deals with open law enforcement investigations or sensitive techniques and strategies. This one comes closest to whatever “equities” may mean. However, courts have rejected such claims being used to block oversight committees.

Congress can yield to a request for nondisclosure or receive the information in a closed session, but it does not have to do so as a matter of constitutional law. Even if one accepts this privilege as a viable claim to raise against an oversight committee, it is meritless here. This was an inquiry into the actions — or inactions — of a single FBI employee. Much of the information already has been shared and released. Special counsel Robert MuellerRobert (Bob) MuellerAn unquestioning press promotes Rep. Adam Schiff's book based on Russia fiction Senate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG MORE has interviewed the same key individuals, and is looking for collusion with the Russians, not incompetence or bias in the FBI.

So what is left? The answer is contempt. It is outright contempt that has become almost casual in its sense of utter impunity. This has nothing to do with the subject or the merits of the committee’s investigation. The problem is that Congress has allowed the very agencies abusing these privileges in this instance, the FBI and Justice Department, to control whether their own officials can be prosecuted.

Congress has independent contempt authority. Our lawmakers can even hold trials for contempt. But the Justice Department persuaded Congress to leave such prosecutions to the agency’s own attorneys, with the promise to be a faithful agent in defending Congress’s authority. It has repeatedly and consistently violated that promise, refusing to submit strong cases of contempt to grand juries.

Strzok’s testimony once again reveals the utter absurdity of this system. It also explains why the Justice Department no longer tries to state clear privilege arguments, let alone supply the necessary declarations or follow the required procedures. It is not like the proverbial “fox guarding the hen house.” It is more like the fox guarding the hen house and agreeing to punish itself for any missing hens. Not surprisingly, the Justice Department consistently has found not a single missing hen.

And the solution to this? Congress needs to rework the referral system or return to enforcing its own contempt orders. Until then, I can give a number to the committee that will not change and is not privileged: zero. That is the number of Justice Department officials prosecuted for contempt of Congress under the current referral system. On matters of contempt, the Justice Department clearly has Congress’s number.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.