The anti-constitutional spirit of the Trump administration is on full display in one of the pettiest congressional oversight fights in years, if not ever.
In May, the Democratic-led House Foreign Affairs Committee asked the State Department for something very simple: copies of any documents the Department turned over to the Senate regarding two GOP-controlled Senate committees’ investigations of former Vice President Joe Biden, his son Hunter, and Ukraine. On August 7, in a letter to the committee obtained by Just Security, the State Department refused to comply with the House request.
The Department’s posture speaks for itself. An agency that refuses even to give Democrats photocopies of documents it has already released to Republicans is one deeply and intransigently committed to obstruction. But the arguments it mounts are even more telling. The State Department, nominally through its acting assistant secretary for legislative affairs, offers a series of absurd, internally inconsistent objections, so convoluted as to support only one conclusion: Secretary of State Mike Pompeo and his enablers do not believe in the constitutional separation of powers. The letter, ostensibly concerning a small number of documents of questionable importance, in fact, illuminates a deeper corruption of power.
For this reason, it is worth examining each aspect of the State Department’s letter in detail.
Shortly after Biden clinched the Democratic nomination, the Republican chairs of the Senate Homeland Security and Governmental Affairs Committee and the Senate Finance Committee, Ron Johnson and Chuck Grassley, began ramping up their investigations of allegations of potential improper influence by Biden on U.S. policy that impacted Burisma, a Ukrainian company where Hunter Biden served on the board.
Never mind that Trump administration officials from the State Department and White House testified that such allegations were “not credible” and that there was no factual basis for allegations of wrongdoing. Never mind that Johnson himself advocated for the same position vis-a-vis Ukraine as then-Vice President Biden. Never mind that the investigation itself has become a vector for the Russian-backed disinformation campaign to influence America’s 2020 election.
Despite these obvious holes in the Johnson/Grassley investigation, the State Department has been providing the Senate anything and everything related to Biden, his son, and Ukraine for months.
Meanwhile, the State Department has effectively stonewalled requests from one of its committees of jurisdiction, the House Foreign Affairs Committee (HFAC), which has asked for thousands of documents since 2018, relating to a handful of matters, including a fast-tracked Saudi arms deal, the removal of U.S. Ambassador Marie Yovanovitch, and the firing of the State Department’s inspector general.
HFAC also wanted to see what the State Department was providing these Republican senators for their politically motivated investigations. So, in May 2020, HFAC tried a new angle. In two letters and a subsequent subpoena, it asked for copies of whatever the Senate received. Among other things, HFAC raised concerns about the manner in which State appeared to be selectively engaging in oversight compliance and abetting a partisan “smear” on the likely opponent of President Donald Trump.
On Aug. 7, the State Department refused. Turning over copies of documents it already released would cost nothing—no money, no time, no resources—and yet it refused to yield.
The Department stakes its claim in a querulous letter to HFAC. Although the letter uses language familiar to congressional oversight watchers, in fact, its paeans to the law and constitutional principles ring hollow. But more than that, the letter reveals the administration’s broader contempt for Congress. The letter is an obstructionist document. And given the smallness of the position it is defending, its pettiness is uniquely revealing.
The State Department’s Arguments
In its letter, the State Department nods to typical executive branch arguments, but in each case, the arguments are absurd and often internally contradictory.
What is an investigation anyway?
The Department begins by disputing that HFAC’s investigation is even an investigation. It writes that “the [Senate] investigation is a duly instituted investigation of two standing committees of the U.S. Senate,” but asserts that HFAC has “not indicated that HFAC has opened an investigation.” This assertion is absurd on its face and is contradicted just lines later.
To begin with, the Department offers no distinction between the Senate’s investigation and HFAC’s other than that its “view” is that the Senate’s is “duly instituted” and, by implication, HFAC’s is not. There is no argument, no analysis, nothing. Just the diktat of the acting secretary of legislative affairs.
The Department’s argument has echoes of the White House’s position on impeachment, namely that it would not participate in the process because House Speaker Nancy Pelosi had not properly instituted impeachment proceedings. Even if the impeachment argument had merit—which is disputable—in this case, the State Department does not point to any procedural infirmity by HFAC. Its position is entirely subjective.
Moreover, HFAC has clearly opened an “investigation.” It has sent two letters identifying the scope of its investigation and has issued a subpoena for the documents requests. This is not the case of trying to hold the Department responsible for responding to a casual request from a junior staff member or a decree by a committee member on television. Even if there were magic words for a congressional “investigation”—and there are not—HFAC’s actions and explanations would qualify.
The notion that HFAC is not engaged in an “investigation” is also contradicted by the Department’s own wording when it acknowledges the committee announced in July that “it is investigating [Secretary Pompeo’s] ‘apparent use of Department of State resources to advance a political smear of former Vice President Biden.” Sure sounds like an investigation to us.
Courtesy and the accommodations process
HFAC requested documents, in part, on the basis that providing “courtesy copies” was appropriate and grounded in tradition. The Department flatly contests that it has any history of providing courtesy copies of documents to its committees of jurisdiction. Rather, it contends, its approach is always to engage in the so-called “accommodations process” of negotiating with Congress over oversight demands.
This is just not true. As former lawyers for the State Department and Senate Judiciary Committee, we participated firsthand in the provision of “courtesy copies” of documents to committees of jurisdiction. For example, in 2014 and 2015, the State Department provided tens of thousands of pages of documents to the Select Committee on Benghazi that it had previously produced to other committees in the House and Senate (Pompeo was a member of the Select Committee). Similarly, the State Department routinely monitored its Freedom of Information Act releases for documents responsive to extant congressional document requests. The Department’s approach was based on a basic commitment to congressional oversight authority and a desire to avoid confrontation when accommodation was possible. It sought opportunities to comply, to release interbranch pressure, and to save its powder for true disputes. The State Department under Pompeo has abandoned that spirit.
The Department’s position also fundamentally misconstrues the accommodations process, weaponizing it as a high-stakes negotiation required in all cases. This is, in fact, a complete inversion of the principle. The purpose of the accommodations process is to find resolution, as the D.C. Circuit put it:
The framers, rather than attempting to define and allocate all governmental power in minute detail, relied, we believe, on the expectation that where conflicts in scope of authority arose between the coordinate branches, a spirit of dynamic compromise would promote resolution of the dispute in the manner most likely to result in efficient and effective functioning of our governmental system. Under this view, the coordinate branches do not exist in an exclusively adversary relationship to one another when a conflict in authority arises. Rather, each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation. This aspect of our constitutional scheme avoids the mischief of polarization of disputes.
United States v. AT&T, 572 F.2d 121, 127 (D.C. Cir. 1977) (emphasis added, footnotes omitted).
Nothing about the State Department’s approach satisfies this standard. Any executive branch interest it has in protecting the documents HFAC seeks was diminished when it provided them to the Senate. The documents have been reviewed, loaded into document production software, and produced once already. There would be negligible cost to reproduce them. Later in the letter, the Department suggests that it lacks any ongoing control over the documents in the possession of the Senate, suggesting HFAC ask the Senate committees for copies.
When the State Department insists on fighting over such small interests, it is clear it has lapsed into “an exclusively adversary relationship” with Congress and has engaged in the “mischief of polarization.” It is, in short, not an accommodations process at all; it is obstruction.
But what is the legislative purpose?
The State Department then falls to arguing HFAC lacks a “legislative purpose” for its subpoena—a now-common technique of the Trump administration that ultimately has fallen flat in every single court case. The Department asserts that, in its opinion, HFAC’s purpose is ”political,” not “legislative.” This argument, too, suffers from a litany of flaws.
Supreme Court jurisprudence holds that Congress’ power to investigate is not limitless; it must be linked to a “legislative purpose,” i.e., in service of gaining information on a subject on which legislation may be had. See Trump v. Mazers, 591 U.S. __, slip op. at 11-12 (2020). The opposite of a “legislative purpose” is not a “political” investigation. That would sweep out nearly any investigation Congress pursues, especially if what counts as “politics” is in the eye of the executive branch. No, Congress only exceeds its legislative bounds when it targets individuals for personal ruin or engages in “exposure for the sake of exposure.” See Watkins v. U.S., 354 U.S. 178, 200 (1957).
Accordingly, the Department’s argument that HFAC is engaging in a “political” investigation is not sufficient to rebut that HFAC has a legislative purpose.
In fact, the best argument that HFAC’s requests lack a legislative purpose is that Grassley and Johnson’s do, too. The Senate’s original baseless pursuit of Biden and his son crosses the line into “exposure for the sake of exposure,” to “try” individuals using congressional power, or to “aggrandize” the investigators. Trump v. Mazers, (quoting McGrain, 273 U.S. at 179; Watkins, 354 U.S. at 187, 200). Many have made that argument. The senators had little to say about legislative purpose when they requested the documents. In their April 30 letter to Pompeo requesting the documents, they made no mention of legislative purpose, and instead noted that their committees were examining “potential conflicts of interest relating to the Obama administration’s policy decisions” and whether representatives of Burisma used connections with administration officials to potentially influence policy. An earlier letter gives the same justification. At no point is any legislation even hinted at.
But the State Department cannot credibly argue now that HFAC’s request is impermissible having already cooperated with the Senate’s identical requests. Moreover, the Senate’s legislative purpose is particularly suspect where it is being run by two committees with no direct jurisdiction over the matter—the Senate Finance Committee and Homeland and Government Affairs Committee. HFAC has specific jurisdiction here.
The State Department’s position is not based in law; it is simply that the executive branch gets to decide what congressional investigations are legitimate.
Subpoena breadth and the kitchen sink
Finally, the State Department throws everything but the kitchen sink at HFAC Chairman Rep. Eliot Engel as to why the department refuses to respond: some of the documents subpoenaed by HFAC were not previously requested; and some may be privileged, which “violate[s] the separation of powers doctrine,” and HFAC should just ask the Senate for the documents.
An agency with a modicum of interest in working with Congress would not make such small-minded objections. If the subpoena covers privileged material, surely the easy place to start would be the documents State already turned over to the Senate. It cannot violate the separation of powers to treat each chamber of Congress equally. Likewise, if HFAC can simply ask the Senate for copies, then what basis does State have not to produce them? For State to offer the Senate as its proxy for oversight compliance is an attempt to avoid its most basic obligations.
The State Department’s laundry list of arguments just confirms what has been obvious: that State was not going to turn over the documents to HFAC. Why? Not because of concerns of overbreadth, separation of powers, legislative purpose or want of a “valid” investigation. Rather, because the committee requesting them is chaired by a Democrat who is not loyal to Trump. We’ve been watching congressional oversight efforts closely for three and a half years, and that—not the Constitution—is the best indicator of whether the State Department will comply with requests for documents or witnesses.
Of course, none of State’s arguments would hold up in federal court against a House-issued subpoena. But as Pompeo well knows, they don’t have to. As Mick Jagger famously counseled: “Time is on my side.” The State Department doesn’t have to win in the courts—it just has to hold off Congress through November.
HFAC should not take this sitting down. The State Department may think its letter was a powerful move, but a savvy committee will seize on it to spotlight corruption. The acting assistant secretary for legislative affairs should be asked to defend his arguments live and in public. They are not coherent and no defense of them could be, either. And HFAC should consider litigating this subpoena. The Department has chosen a particularly weak hand to test oversight power. Bad case law should be its reward.
Image: Secretary of State Mike Pompeo looks over his papers while testifying before the House Foreign Affairs Committee, on Capitol Hill February 28, 2020 in Washington, DC. Photo by Mark Wilson/Getty Images