By Printus LeBlanc
Since the election of President Trump, the media and progressives have been clamoring for a “constitutional crisis.” Well, they finally got the crisis, although it doesn’t appear to be the one they wanted. The actions of a senior Justice Department official have thrust the country into a constitutional crisis involving the Department of Justice and Speaker of the House Paul Ryan (R-Wis.).
On Feb. 3, Gregg Jarrett of Fox News first reported on an incident involving Rosenstein and the House Intelligence Committee. Jarrett stated, “In a meeting with Chairman Devin Nunes, FBI Director Christopher Wray and others, the source says that Rosenstein threatened to subpoena the texts and emails of Congress because he was ‘tired of dealing with the Intelligence Committee.’” Jarrett was roundly criticized for the report by the mainstream media, and the story seemed to die.
Further investigation by Catherine Herridge would result in a bombshell report released on Wednesday, June 13, confirming the Jarrett story. Herridge acquired emails from then senior counsel for counterterrorism Kash Patel writing to the House Office of General Counsel stating, “The DAG [Deputy Attorney General Rosenstein] criticized the Committee for sending our requests in writing and was further critical of the Committee’s request to have DOJ/FBI do the same when responding…Going so far as to say that if the Committee likes being litigators, then ‘we [DOJ] too [are] litigators, and we will subpoena your records and your emails,’ referring to HPSCI [House Permanent Select Committee on Intelligence] and Congress overall.”
The FBI does not dispute the action took place just that the people involved took it the wrong way, stating, “The FBI disagrees with a number of characterizations of the meeting as described in the excerpts of a staffer’s emails provided to us by Fox News.” Notice the bureau did not deny the conversation took place.
The next tactic the DOJ took was to defend the Deputy AG’s actions. The DOJ excused his outburst against Congress by was stating he was referring to how the DOJ would defend litigation brought by the Committee, including contempt or impeachment proceedings. There is a slight problem with this excuse, the Constitution.
Article 1, Section 6, Clause 1 of the Constitution is known as the Speech or Debate Clause. It states, “For any Speech or Debate in either House, [The Senators and Representatives] shall not be questioned in any other Place.” What this means is that as long as Congress is doing its official duty, such as oversight, it shall not be interfered with, from say a subpoena by an overzealous DOJ employee. If Rosenstein thinks he is going subpoena records for a civil trial, the only thing he will get is a House Resolution number.
The Congressional Research Service wrote a report in Dec. 2017 on the clause stating, “Judicial interpretations of the Clause have developed along several strains. First and foremost, the Clause has been interpreted as providing Members with general criminal and civil immunity for all ‘legislative acts’ taken in the course of their official responsibilities. This immunity principle protects Members from “intimidation by the executive” or a “hostile judiciary” by prohibiting both the executive and judicial powers from being used to improperly influence or harass legislators. Second, the Clause appears to provide complementary evidentiary and testimonial privileges. Although not explicitly articulated by the Supreme Court, lower federal courts have generally viewed these component privileges as a means of effectuating the purposes of the Clause by barring evidence of protected legislative acts from being used against a Member, and protecting a Member from compelled questioning about such acts.”
So, either Rosenstein didn’t know about the Speech or Debate Clause, or he did and ignored it in a fit of rage. Either is extremely disturbing.
Finally, and probably the most important, Congress has a constitutionally mandated duty to investigate the executive branch. The Deputy AG is not in the Constitution, Congress is. Congress has the constitutional authority to provide oversight of executive agencies, of which the DOJ is part of. The DOJ does not have the authority to subpoena Congress because it doesn’t like bias and wrongdoing within its walls being exposed.
This latest crisis is another in a long line of missteps by Rosenstein. First, the Deputy AG signed a FISA warrant to spy on an American citizen, despite the warrant being filled with unverified intelligence, according to the Nunes memo. Second, Rosenstein wrote the memo that outlined why James Comey should be fired as Director of the FBI. That action led to the creation of the out of control Special Council currently investigating anything and everything. Rosenstein is the very definition of “conflict of interest.” And now we have Deputy AG Rosenstein spitting in the face of Congress, essentially declaring he is his own kingdom and responsible to no one.
To top everything off, as this story is being written, the DOJ Inspector General report on the FBI’s actions during the Clinton email probe, and one thing sticks out. The DOJ possibly misled Congress when it turned over text messages between Peter Strzok and Lisa Page. The DOJ handed over a string of text messages, but left out one of the most damning messages from Strzok to Page stating, “No. No he won’t. We’ll stop it,” when answering a question about Trump possibly becoming President.
Since AG Sessions is recused from this matter, the fault must lay at the feet of the Deputy AG. This goes well beyond the appearance of impropriety.
If House Speaker Paul Ryan will not defend Congress, now is the time for a wannabe Speaker to rise. Several Members are jockeying for position to be the next Speaker after Ryan leaves, and the American people want to see someone that wants to be a Speaker stick up for the Article I branch of government. Two things need to happen. Rosenstein needs to be fired, and Congress should immediately move to secure the requested documents. If the Speaker lets this blatantly unconstitutional act go unanswered, he might as well turn out the lights and lock the Capitol up. There is no reason to have a Congress if it will not stick up for itself.
Printus LeBlanc is a contributing editor at Americans for Limited Government.
