MAGA Republicans, devoid of policy solutions and addicted to performance politics, act as if their House majority invests them with the power to rove the landscape to spot MAGA victims, skewer their enemies and defend their political allies. That’s not their job, and, as we are seeing with their attempt to intimidate Manhattan District Attorney Alvin Bragg in his investigation of defeated former president Donald Trump, it’s a gross abuse of congressional power.
For starters, Congress has no business meddling with any ongoing investigation at any level. In response to an outrageous letter from House Judiciary Chairman Jim Jordan (R-Ohio) demanding Bragg testify about a case under consideration by a New York grand jury concerning New York law, Bragg’s office wrote, “Consistent with these constitutional obligations, the DA’s Office is cognizant of the Justice Department’s consistence policy ‘of not providing Congress with non-public information about investigations.’ ”
Bragg’s office made the constitutional case succinctly:
Congress is not the appropriate branch to review pending criminal matters. As the Supreme Court noted in Watkins, “Congress [is not] a law enforcement or trial agency. These are functions of the executive and judicial departments of government.” 354 U.S. at 187. “[T]he power [of Congress] to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary.” Quinn v. United States, 349 U.S. 155, 161 (1955).
Congress is not a supercharged prosecutorial supervisor. In our system of separation of powers, the duty to investigate and prosecute rests with the executive branch, either at the state or federal level. Attempts to politicize prosecutions and turn prosecutors into lackeys of right-wing legislatures represent a dangerous trend that strikes at the heart of the impartial administration of justice and the rule of law.
But it’s not only Congress that is seeking to abuse prosecutorial independence.
In Florida, for example, Gov. Ron DeSantis (R) removed Hillsborough County prosecutor Andrew Warren for, among other reasons, decrying abortion restrictions and bans on gender-affirming care. (Warren won on the merits but was denied reinstatement in federal court on 11th Amendment grounds; he has appealed to the Florida state Supreme Court and to the U.S. Court of Appeals for the 11th Circuit.)
Following DeSantis’s lead, Georgia lawmakers proposed a law that would allow a body they largely control to fire locally elected prosecutors. As the Center for Constitutional Litigation’s Robert Peck wrote in a Bloomberg Law post, “The new law would render blanket statements about a prosecutor’s unwillingness to prosecute certain crimes to be a form of misconduct. A primary concern of the bill’s proponents is opposition to criminal prosecutions under Georgia’s so-called fetal heartbeat law that restricts abortions to approximately six weeks.” Again, this attempted legislative infringement on the executive branch violates the separation of powers and tramples on the right of voters to select district attorneys who adopt the priorities they think are important.
Just as Georgia prosecutors and Florida prosecutors have every right to prioritize cases the voters want prosecuted (e.g., violent crime), Bragg and the people who elected him can choose to pursue public corruption and other white-collar crime free from interference from lawmakers.
Jordan’s attempted power grab not only violates the separation of legislative and executive power, but also runs roughshod over the 10th Amendment, which Republicans invoke at the drop of the hat to shield states from federal regulation and interferences. Jordan’s letter is a blatant violation of New York sovereignty (and the interests of Manhattan voters who elected Bragg).
The reply from Bragg’s office to Jordan’s letter aptly made this point. “The Letter’s requests are an unlawful incursion into New York’s sovereignty. Congress’s investigative jurisdiction is derived from and limited by its power to legislate concerning federal matters. … The Constitution limits Congress’s powers to those specifically enumerated; and the Tenth Amendment ensures that any unenumerated powers are reserved to the States.” Moreover, Bragg’s office argued, “To preserve the Constitution’s federalist principles, the District Attorney is duty bound by his constitutional oath to New York’s sovereign interest in the exercise of police powers reserved to the States under the Tenth Amendment.”
If Bragg oversteps his authority, New York courts and juries will protect the interest of defendants, be they the former president or not. And if his priorities don’t address the concerns of the voters who sent him there, they can vote him out.
Would there ever be a time to bring a local prosecutor into testify under oath to Congress? Certainly, but not on a pending matter and not on an issue of state law.
Congress first would need a valid legislative purpose. In Trump v. Mazars USA, the Supreme Court upheld a lower court’s ruling that Congress had a “valid legislative purpose” in demanding tax documents from Trump’s accountants:
Congress has no enumerated constitutional power to conduct investigations or issue subpoenas, but we have held that each House has power “to secure needed information” in order to legislate. … Most importantly, a congressional subpoena is valid only if it is “related to, and in furtherance of, a legitimate task of the Congress.” … Furthermore, Congress may not issue a subpoena for the purpose of “law enforcement,” because “those powers are assigned under our Constitution to the Executive and the Judiciary.”
Valid legislative purposes for a hearing at which local prosecutors might testify could include, for example, amendment of federal voting rights laws (e.g., testifying about threats to voters and poll workers), police reform (e.g., testifying about police abuse in their jurisdiction) and revision of drug laws or funding of anti-addiction programs (e.g., testifying to the strain on courts posed by nonviolent drug abusers). In other words, local prosecutors can assist Congress as fact finders and experts in policy matters over which Congress has jurisdiction.
If a local prosecutor arrests President Biden after leaving office for spurious reasons? If a U.S. attorney indicts Hunter Biden without probable cause? Congress would have no authority to investigate, haul the prosecutors into a hearing room and demand answers. Those matters would get resolved by other branches and levels of government.
It doesn’t matter if Jordan and his cohorts actually believe Bragg is abusing his office. It doesn’t matter if Bragg actually were using poor judgment in exercise of his prosecutorial discretion. It is not Congress’s job to “fix” these things. Congress is confined to its limited constitutional role. That, too, is what we call the “rule of law.”