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Is DOJ Obstructing Congress in the Trump Surveillance Case?

Did Rep. Devin Nunes (R-CA) really have to threaten to hold FBI Director Christopher Wray and Deputy Attorney General Rod Rosenstein in contempt and to start impeachment proceedings? Apparently so.

Nunes chairs the House Intelligence Committee. For almost eight months, Wray and Rosenstein stalled his request for an unredacted copy of the memo that launched the Obama administration’s investigation/surveillance of the Trump campaign. Eight months.

But when Nunes threatened impeachment, he received the memo within 24 hours.

The Committee is investigating whether the Justice Department and the FBI (which is part of the Justice Department) had a credible, legal basis for opening their extraordinary investigation of a presidential candidate’s campaign. And the Justice Department has been trying to slow-walk the Committee’s investigation from the start.

But all the delaying tactics in the world can’t diminish the power of Congress to exercise oversight of a federal agency’s behavior -- or possible misbehavior.

In August 2017, the Committee subpoenaed Justice, demanding all documents associated with the opening of its “counterintelligence” operation examining Russian influence in the 2016 election. The subpoena covered the administration’s request, submitted to the FISA court, seeking surveillance warrants. The Justice Department, however, refused to provide an unredacted copy of the original FBI document that outlined its reasoning for opening the investigation.

In a 1975 case, Eastland v. U.S. Servicemen’s Fund, the Supreme Court said that the “scope of [Congress’s] inquiry … is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.” That power, according to a 1957 Supreme Court decision, Watkins v. U.S., is at its peak when Congress is investigating “corruption, maladministration, or inefficiencies in the agencies of Government.”

Given that the Committee is looking into possible corruption in this investigation and/or maladministration of the statute governing the FISA court and the issuance of secret surveillance warrants, the oversight power of the Committee is at its height in this inquiry.

In an April 6 letter responding to Nunes’ latest demand for the unredacted memo, Assistant Attorney General Stephen Boyd didn’t directly address the demand. He did, however, generally try to justify the delay by citing “relevant legal precedents, the Department’s significant law enforcement and national security responsibilities, and Executive Branch confidentiality interests.”

Such excuses are not novel. A 2012 report by the Congressional Research Service notes that, for generations, Congress has sought “and obtained access to information concerning prosecutorial misconduct by Department of Justice officials” -- and that includes access to “pre-decisional deliberative prosecutorial memoranda.”

According to the congressional report, these demands are “often resisted” by Justice for many of the same reasons outlined by Boyd but are “usually released upon committee insistence.” That is because none of the reasons provided by Boyd provides a legal basis for refusing to turn over documents. Often Justice will also cave into Congress for political reasons such as nominations being held up or threats to withhold budget funding unless the demands are met.