House Democrats are staring down a familiar foe: a president they believe is running roughshod over the rule of law by using his power to protect his allies from punishment.
They believe they were elected with a mandate to take that foe on. There’s just one problem: They already went nuclear on him.
The fallout from the impeachment of President Trump had hardly even cleared when the coronavirus broke out, plunging the nation into an unprecedented crisis and instantly creating an enormous new frontier for congressional oversight.
Amid that emergency, Attorney General William Barr has made dramatic moves to protect Trump’s allies, like former National Security Adviser Michael Flynn, which have shocked Democrats and many veterans of the Department of Justice.
And, as Congress enters a protracted period of disrupted operations thanks to the outbreak, Senate Republicans—egged on by Trump—are vowing to use their power to investigate the origins of the Russia investigation and may subpoena former Obama administration officials for testimony in order to do it.
This strange, unprecedented confluence of events has left the Democrats on the House Judiciary Committee—the tip of the party’s spear in holding the Trump administration accountable—with a familiar problem: figuring out how to investigate an administration that’s worked to make itself nearly impossible to investigate.
Impeachment, the most powerful tool at their disposal, has already been used. COVID-19 commands headlines and the lion’s share of Congress’ time. Against that backdrop, House Democrats appear increasingly constrained in their ability to conduct effective oversight of an increasingly emboldened administration.
When Barr announced on May 7 that Flynn’s prosecution would be dropped, Judiciary Chairman Jerry Nadler (D-NY) tweeted that Barr’s move was “outrageous;” the next day, he sent a letter to the DOJ inspector general, Michael Horowitz, requesting he investigate. On May 13, Nadler told MSNBC that his priority was to get Barr before his committee on June 9, a make-up for a scheduled March hearing that was canceled due to the coronavirus outbreak. That date, or any date, has not yet been confirmed by DOJ.
For now, there is little officially planned beyond that. Judiciary Committee members say that they expect non-COVID oversight activity to ramp up significantly heading into the summer, thanks to new pandemic-era rules adopted to allow legislators to do more of their work remotely.
Off Capitol Hill, however, advocates for aggressive oversight of the DOJ are wondering what Democrats’ game plan is. “We’re in the middle of a pandemic—certainly, the Congress is focused on that, as they should be, but that doesn’t mean we should let other abuses go by the wayside,” said Molly Claflin, an attorney with the watchdog group American Oversight and a former Democratic counsel for the Senate Judiciary Committee who worked on probes of the 2016 election.
“I have been very surprised this is not really galvanizing the committees and making people stand up and say something from Congress,” Claflin told The Daily Beast.
There is growing chatter from House Democrats on this front, however, and some have been quietly huddling in the wake of Barr’s moves to talk about ways to move forward on oversight.
A Judiciary Committee member, Rep. Madeleine Dean (D-PA), said that lawmakers have been consumed with the COVID-19 crisis and only recently have been equipped to do more to push back on Barr. Dean told The Daily Beast that she “hears the antsiness” of those clamoring for more aggressive DOJ oversight, but said “we are meeting in committee, by conference calls, and other methods… There’s an extraordinary commitment on the part of the whole caucus to continue to do robust oversight of this president. Now we feel only more urgency about that.”
Another Judiciary Committee member, Rep. Ted Lieu (D-CA), told The Daily Beast that the panel is pursuing more hearings to focus on conduct at the DOJ, in addition to rescheduling Barr’s testimony. “There are nearly 2,000 former Justice Department officials and prosecutors who have called on Barr to resign,” Lieu told The Daily Beast, referencing a recent letter. “We should hear from them… I’d like to see former Department of Justice officials testify about what happened at DOJ, what they see happening now.”
The power to drive news coverage and set the agenda through scheduling hearings is a considerable one, and the Judiciary Committee’s members are eager to embrace it. But some Democrats acknowledge that beyond that, the paths for good oversight narrow quickly when the administration routinely stiff-arms requests for documents, ignores subpoenas, and brushes off votes to hold top officials in contempt of Congress—all things that defined their battle with the White House last year.
“Unfortunately, there’s not many attractive options for the House,” said Claflin. “We’ve never seen an administration like this one, which seems to truly believe any oversight is invalid. The tools Congress holds used to be sufficient, and they aren’t any longer.”
Prior to the Flynn case being dropped by DOJ —and before the coronavirus hit—Judiciary Democrats had been interested in getting Barr before their committee to answer questions about a number of topics. In particular, lawmakers were keen to press the attorney general about his role in Trump’s effort to pressure Ukraine to investigate Joe Biden, as well as his intervention in the sentencing of Trump ally Roger Stone, which he overruled federal prosecutors to lessen.
Since then, however, the coronavirus crisis has claimed Washington’s undivided attention, and Barr has pushed ahead with a vigorous defense of Trump’s allies. Chief among them is Flynn, who pleaded guilty in 2017 to lying to federal agents about conversations he had in 2016 with Russia’s ambassador to the United States while advising Trump’s presidential campaign.
Citing new findings from a federal attorney he dispatched to review Flynn’s case, Barr said his DOJ pulled the prosecution because, though Flynn admitted to lying to investigators, a crime couldn’t be established because “there was not, in our view, a legitimate investigation going on.”
Former prosecutors, including those directly involved with the Flynn and Stone cases, called Barr’s moves unprecedented and shocking. In their letter to Horowitz, Nadler and Judiciary Democrats said they were “deeply concerned” by Barr’s decision and wanted an investigation into “a pattern of conduct that includes improper political interference, ignoring standards for recusal, and abrogating ag guidelines, among other improper considerations.”
Days after the Flynn news, there was another challenge. On May 13, Paul Manafort—the former Trump campaign chairman serving a seven-and-a-half-year prison sentence for various charges brought by Special Counsel Robert Mueller—was transferred to home confinement. The decision was made by the Federal Bureau of Prisons, which is under control of the DOJ, apparently due to health concerns stemming from the 71-year old’s incarceration in the middle of the COVID-19 outbreak.
But Manafort’s prison in Pennsylvania had not seen any cases yet of COVID-19. Democrats wondered why a longtime ally of the president was getting a reprieve while other federal prisoners still languish in facilities with far higher rates of the virus.
Lieu, for example, represents a district near Terminal Island, California, home to a facility with the worst COVID-19 outbreak of any federal prison in the country. “If you don't release prisoners in a facility with a nearly 70 percent infection rate, and you see Paul Manafort being released from a facility where there’s no known cases, that smacks of disparate treatment,” said Lieu.
Asked about Manafort’s release on MSNBC, Nadler called it “highly suspicious.” But a Democratic source indicated that there was low appetite among members to launch any investigation of the circumstances of Manafort’s move, given that the party is pushing for home confinement for nearly all non-violent offenders amid the coronavirus outbreak. Rather, Democrats emphasize they want a fair application of justice.
As has been the case before in their oversight of Trump, House Democrats are poised to spend a lot of time watching for favorable outcomes from the courts. The judge hearing Flynn’s case, for example, has stalled the DOJ’s bid to withdraw by allowing outside parties to weigh in on it, which could extend the process into July.
But the summer will also bring fresh efforts in the Russia realm from DOJ, as well as the other side of Capitol Hill, that are likely to invite some kind of Democratic response. The federal prosecutor tasked with investigating the origins of the Mueller probe, John Durham, is expected to release his findings in the near future, a development hotly anticipated by the president and Republicans.
At the same time, Trump is urging his allies in the Senate to pursue a similar investigation. Sen. Lindsey Graham (R-SC), the Senate Judiciary chairman, is obliging; he announced on Monday he’d be moving forward with a sweeping probe into the Obama administration’s handling of the 2016 election, which could include subpoenas for testimony for numerous former officials.
Some Democrats say these moves from Republicans do not necessarily up the ante on them to push back. “Oversight is too important to be politicized,” said Phil Schiliro, President Obama’s former top liaison to Congress and founder of the good-government organization Co-equal. “If the Senate is politicizing it, it’s no reason for the House to respond that way.”
Schiliro, who also advised House Democrats during the impeachment process, credited them for proceeding “deliberately” on DOJ-related oversight, given the pandemic and the fact that Flynn’s case is still live in court.
Others are concerned about the prospect of a House Democratic leadership not using the tools it has to push back on the case pushed by the GOP, however, and believe that silence could be an enormous political liability if Democrats want to defend the findings on Russia and the 2016 election that were detailed in the Mueller report.
“This should be a huge opportunity for Democrats to just fully unload and bring back all the damaging corruption in the Russia investigation to unleash it on the President and his supporters,” said Max Bergmann, director of the Moscow Project, the arm of the liberal Center for American Progress that focuses on Russia and the 2016 election.
“The House is playing as if it has no cards when it has a ton of cards,” said Bergmann. “it just has to be willing to use them.”