The eight most disingenuous words used by federal agencies to hide their criminal activity are “I can’t answer, the matter is under investigation.” These words are used to obstruct, mislead, delay, and discourage congressional investigations into the legality of Executive branch activity.
Unfortunately, this simple statement often achieves its goal of obstructing efforts by Congress to obtain information. While Congress may be upset with the response, many times, it is cowed into accepting presidents can protect their people from being investigated for criminal conduct. Fortunes, however, can be reversed. If Republicans win the White House with a presidential candidate who sincerely wants to uphold the rule of law, restore justice to the legal system and hold the “Deep State” accountable, that president can make it happen.
The leading Presidential candidates for the Republican nomination have promised to fire the FBI director and clean house at the Department of Justice. If a Republican wins the presidency in November 2024, FBI Director Wary and AG Garland will resign long before they can be fired. So, candidates, please, stop pandering. No one will be fired. All pablum, worthless and oversimplified promises.
Suppose a new president truly wants to clean up the deep, dark, corrupt state at the DOJ and FBI. In that case, the Republican president need only waive Executive Privilege and issue an Executive Order declassifying all investigatory materials sought by the current Republican House of Representatives. Let Congress bleed the truth out of those subverting the Constitution.
Executive compliance is simple. When Congress requests documents, the Executive should order them produced. When testimony is sought, provide it without asserting objections. Cooperate with the Republican House to find the truth.
Since the Nixon administration, presidents have asserted Executive Privileges thirty times to block congressional investigations. Presidential assertions included protecting the president’s brother (Billy Carter), girlfriends (Monica Lewinsky), mismanagement of funds (Solyndra), foreign affairs (Benghazi), gun running (fast and furious), and the Watergate tapes. Democrat and Republican administrations act as if providing Congress with requested information concerning an investigation will somehow diminish their manhood.
Finding and eliminating corruption is for the benefit of the nation. Hiding corruption does not assist the president in the faithful execution of the law. The DOJ/FBI’s long-running minuet of never sharing information with congressional committees is a mechanism of deceit, not of protecting the independence and effectiveness of law enforcement, the identities of informants, avoiding pre-trial publicity, or interfering with prosecutorial discretion. The Supreme Court has long recognized the “…implied power [of Congress] to investigate and to compel the production of information” from the Executive branch.
“Executive Privilege for presidential communications is limited to the quintessential power and nondelegation of Presidential power, and those are the core functions in the Constitution.” It should only be asserted to preserve those core constitutional functions. Claiming it beyond the core constitutional functions is a delaying tactic that often allows illegal conduct to continue.
As to declassifying all documents related to alleged criminal activity in the Executive branch, no president should ever be intentionally or unintentionally covering it up. The American Bar Association writes, “Under the U.S. Constitution, the president as commander in chief is given broad powers to classify and declassify such information, often through executive orders.” While there are procedures for declassifying the materials, a president, except for certain materials such as nuclear secrets, has almost total control to declassify records by Executive Order. Presidents at all times have the power to put sunlight on government corruption. When they choose not to expose corruption, it is an intentional coverup.
Unfortunately, since the Nixon administration in the early 1970s, the Executive branch has forced Congress to issue subpoenas to secure requested documents. Presidents achieve their goal of protecting corruption by requiring years of legal battles to enforce the subpoena.
Hopefully, there will be a Republican Congress, or at least a Republican House sworn in on January 3, 2025, and on January 20, 2025, a Republican president. Between January 3, 2025, and January 20, 2025, the Republican Congress can prepare the appropriate investigative letters to the incoming president requesting the information needed to root out corruption in the DOJ/FBI. On January 20, when the Republican president enters the White House, his first order of business should be to issue an Executive Order waiving Executive privilege and formally declassifying the documents relating to all congressional investigations. These waivers should encompass all alleged DOJ/FBI corruption as described in the Durham Report, Mueller and Horowitz Reports, payments received by Joe and Hunter Biden from foreign countries, all matters associated with the development of a two-tier system of justice, efforts by the federal government to force social media companies to manipulate information distributed to the public and all other matters of high-level DOJ and FBI corruption.
By taking this approach, the president will tremendously assist the congressional investigation of the DOJ/FBI misconduct without investigating the departments he leads. If Congress finds evidence of criminal activity, it will refer the evidence to new appointees at a DOJ for appropriate prosecution.
Suppose Executive branch personnel refuse to testify or take the Fifth to protect their constitutional rights. In that case, Congress can grant the Use Immunity, which compels their testimony but provides immunity to the witness for the new information provided. A witness that refuses to testify after being given Use Immunity can be cited for contempt of Congress and imprisoned.
It’s time the federal government gets serious about corruption in government. More intriguing would be if a president followed this advice. The nation might uncover who is running the Deep State.
William L. Kovacs has served as senior vice president for the U.S. Chamber of Commerce, chief counsel to a congressional committee, and a partner in law D.C. law firms. His book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change. He can be contacted at wlk@ReformTheKakistocracy.com