https://www.wsj.com/articles/mueller...ess-1500937661
Mueller Is Trumping Congress
Special prosecutors corrupt; independent counsels corrupt absolutely.
By William McGurn
July 24, 2017 7:07 p.m. ET
Did Congress learn anything from Lois Lerner ? Judging from Capitol Hill's self-abasing deference to Special Prosecutor Robert Mueller, the answer is no.
You remember Ms. Lerner. She was the official at the center of an Internal Revenue Service effort that denied conservative political advocacy groups tax-exempt status, or at least held up approval long enough that these groups could not be a factor in the 2012 election.
Back when Republicans were holding hearings on the matter, time and again they were lectured not to do anything that might affect the FBI's investigation-which eventually ended with no charges against anyone. Though Ms. Lerner was found in contempt by the House for her refusal to testify, it proved all for show.
The tip-off came when then-Speaker John Boehner, rather than use Congress's inherent contempt power to jail Ms. Lerner until she talked, opted for classic swamp symbolism-by passing the buck to an Obama Justice Department everyone knew would never prosecute her.
The result? Ms. Lerner avoided having to answer any hard questions. The IRS merrily continued to lose or destroy crucial documents. And John Koskinen, the awful replacement IRS commissioner who stonewalled and misled, remains in office.
The Lois Lerner fiasco offers a sobering lesson for a Congress whose various committees are holding hearings on Russia's intervention in last year's elections as Mr. Mueller investigates the same. While Mr. Mueller's office is a watered-down version of Ken Starr's or Lawrence Walsh's , it remains true that special prosecutors corrupt even if they don't corrupt as absolutely as independent counsels. The main headlines of the past week-Is Donald Trump attempting to undermine Mr. Mueller? Will Trump Fire Mueller?-all speak to the challenge a special prosecutor poses to the constitutional authority of the president.
Far less scrutiny has been devoted to the challenge Mr. Mueller poses to the authority of the legislative branch. In this case, ironically, the challenge stems less from the aggressiveness of the special prosecutor than from the meekness of Congress. In between their public tributes to Mr. Mueller's sterling character, too many in Congress seem to worry more about how they might be affecting his investigation than about what his investigation might be doing to theirs.
One small snapshot: Mr. Mueller, an unelected appointee, had the Trump memos written by former FBI Director James Comey even as the FBI was refusing to release them to the elected representatives of the American people.
When Mr. Mueller was appointed back in May, Sen. Lindsey Graham rightly noted that though he respected the decision, the appointment will "really limit what Congress can do, and it's going to really limit what the public will know about this." Alas, the South Carolina Republican went on to say that "we in Congress have to be very careful not to interfere in his lane."
Certainly representatives and senators shouldn't set out to frustrate Mr. Mueller's investigation. But neither should they permit Mr. Mueller to frustrate theirs.
In this investigative capacity, Congress has many tools to enforce its demands for information. It can, for example, use inherent contempt to jail someone until he testifies or produces the requested information. True, inherent contempt hasn't been invoked since 1935, but given that the civil path to enforcing a contempt finding takes years and the criminal option (as Ms. Lerner showed) has effectively been overridden, Congress would do well to rely on its own powers and authority.
Here a May 2017 review from the Congressional Research Service is illuminating. Although witnesses before a congressional committee do have the right to invoke the Fifth Amendment, the House can get a court order directing the witness to testify so long as the threat of prosecution for that testimony is removed. Mr. Mueller might not like this, but that shouldn't stop Congress from using a power designed to extract information rather than punish.
Even more intriguing, sensitive or privileged client information is not exempt from congressional subpoena. This might prove especially fascinating in the case of former Trump campaign manager Paul Manafort, who has had business dealings with a pro-Russia Ukrainian political party. Ditto for Glenn Simpson, whose Fusion GPS commissioned what became the Christopher Steele Russian dossier on behalf of political clients.
Not to mention the many other powers of Congress, including impeachment and the purse. The point is, Congress has many ways to get to the bottom of the Russia story and hold people accountable-if it so chooses.
In Anderson v. Dunn (1821), the Supreme Court correctly noted that without the power to imprison those found in contempt, Congress would be "exposed to every indignity and interruption, that rudeness, caprice or even conspiracy may meditate against it." Two centuries later, the different examples of Ms. Lerner and Mr. Mueller both point to a brand new indignity-which Congress inflicts on itself when it is too timid to assert its own powers.
Write to
mcgurn@wsj.com.
Appeared in the July 25, 2017, print edition.
Mueller Is Trumping Congress
