Trade-offs are inescapable: the separation of powers encourages informational free riders and can make good policies harder to achieve.
With the creation of a special congressional committee to investigate the 2012 attack on the U.S. consulate in Benghazi, the three branches of government will soon head for a constitutional collision. Obama administration officials, past and present, will resist the call to testify. They will respond to congressional subpoenas by claiming executive privilege or asserting their right to avoid self-incrimination. To get answers to its questions, the committee may hold Obama officials in contempt. Under today’s misconceived system of judicial supremacy, the courts may decide the winner. If the original understanding of the Constitution prevailed, Congress would probably prevail. But investigations has become yet another matter where Washington, D.C.’s practices have strayed far from the Constitution.
Earlier this month, Speaker John Boehner announced a special House committee to investigate the September 11, 2012 attacks, which killed the American ambassador, Christopher Stevens, another diplomat, and two U.S. security personnel. After the debacle, administration officials claimed the deaths resulted from spontaneous riots provoked by an obscure anti-Islamic video produced in California. But recent reports suggest that the timing was anything but happenstance: the killings appear to have been the carefully-planned handiwork of groups linked to the al Qaeda terrorist network. The new House committee will seek a definitive answer on the causes of the attack and whether the Obama administration, in the midst of its 2012 re-election campaign, deliberately misled Congress and the American people. White House officials and congressional Democrats have already attacked the committee as a Republican Party fishing expedition for politically-embarrassing information.
Executive privilege will become the first flashpoint for this struggle between Congress and the Obama administration. Congress has long had the power to conduct investigations as part of its power of oversight. Because the House and Senate wield the legislative power the Supreme Court has recognized that they must have the ability to learn the facts necessary to evaluate existing programs or to enact new ones. “A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change,” the Court observed in McGrain v. Daughtery (1927). “And where the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who do possess it.”
The House’s new committee on Benghazi easily fits within this description. Congress has the constitutional authority to learn why terrorists were able to evade American intelligence and kill U.S. personnel. Indeed, Congress’s very first investigation, in 1792, delved into the reasons for an Indian victory over an American army under the command of General Arthur St. Clair. Congress sought the information not to embarrass President George Washington, but to decide whether to create a larger or different army. Today, Congress must decide whether to make changes to security and diplomatic operations and if intelligence collection and analysis programs need reform.
Obama administration officials, however, have some ability to resist the open discussion of these matters. The Constitution does not grant the executive branch the right to conceal incompetence, poor administration, and bad judgment. Indeed, these are the moments when congressional oversight is most needed. Article II of the Constitution, however, grants the President the executive privilege to protect sensitive diplomatic and military information, as well as confidential advice that he receives from his aides. As interpreted by the Supreme Court, the other branches of government may overcome such “executive privilege” if they need the information to perform their own core constitutional duties. “Absent a claim of need to protect military, diplomatic, or sensitive national security secrets,” the Court declared in the Watergate Tapes case (United States v. Nixon, 1974), “we find it difficult to accept the argument that even the very important interest in confidentiality of presidential communications is significantly diminished by production of such material” to a federal court in a criminal prosecution.
White House officials appearing before the Benghazi committee are unlikely to hide behind the executive privilege of presidential communications, as this would imply that President Obama personally received information and advice during the attacks. But they may well claim that sensitive military and diplomatic information is at stake – for example, the intelligence community’s failures to predict the attack or the dispersed military deployments in the region that made rescue impossible. On the other hand, the release of this information may no longer be damaging because, presumably, the Obama administration has already changed its diplomatic and military operations in response to the Benghazi failure. Further, the committee can agree to keep confidential any national security or diplomatic information – a common accommodation between Congress’s right to conduct oversight and executive privilege.
Another constitutional flashpoint will be the right against self-incrimination. In addition to executive privilege, ex-administration officials may invoke the Fifth Amendment even though they are not appearing in a criminal courtroom. The Fifth Amendment’s text states in part: “No person…shall be compelled in any criminal case to be a witness against himself.” The most persuasive theory about its original meaning finds that the text focused on barring the government from extracting confessions and using them against the defendant at his own trial. As an original matter, the amendment did not apply to congressional investigations, only criminal prosecutions: hence the phrase “in any criminal case.” Congress, as well as colonial and state legislatures, could require witness testimony as an exercise of their legislative power as they gathered facts for pending legislation or investigated government wrongdoing. If the person refused to testify, founding-era legislatures could hold the witness in contempt and throw him in jail.
While it did not make the first move, the Warren Court accelerated the movement towards extending the Fifth Amendment outside of criminal cases. In a series of cases stemming from the House Un-American Activities investigations into Communist threats, the Warren Court found that, despite the text and history of the Fifth Amendment, subpoenaed witnesses could “plead the Fifth” before Congress. Witnesses could claim that their testimony before Congress might incriminate them in any parallel or future criminal proceedings arising out of the same facts. This resulted in a significant re-shuffling of the inter-branch balance of power, depriving Congress of one of its greatest checks on the executive branch and one of its most important tools in ferreting out government corruption.
Events will likely play out thus. The Benghazi Committee will bring in witnesses, many of them tied to the executive branch. Some of these men and women will refuse to testify and invoke either executive privilege or the Fifth Amendment. Congressional, Justice Department, and White House staff will negotiate limited access to witnesses and documents, but for the hearing to succeed, the story must eventually become public. If the committee is unwilling to grant immunity to the witness, he or she may well continue to refuse to testify. The committee will then vote along party lines, 7-5, to hold the witnesses in contempt.
Contempt, however, contains a built-in advantage for the executive branch. Under existing law, the House must approve the referral of the contempt sanction for prosecution. Once that happens, the President retains an effective veto over contempt sanctions. Under Article II of the Constitution, which places in the President the responsibility to “take care that the laws are faithfully executed,” criminal prosecution rests in the hands of the executive branch. Whether to prosecute is up to the U.S. Attorney for Washington, D.C., an official appointed by President Obama with the advice and consent of the Senate. The U.S. Attorney reports to the Attorney General, Eric Holder, who himself has been subject to contempt by Congress. A U.S. Attorney who works for Holder and the President will not prosecute witnesses before the Benghazi committee who refuse to testify to protect the administration from scandal – especially as part of an administration that refuses to enforce valid laws in the fields of immigration, welfare, health care simply because it disagrees with the policies.
One option remains, a nuclear option of a kind. If the U.S. Attorney refuses to prosecute, Congress could turn to its own inherent powers. First used in 1795, Congress could issue its own contempt sanction against uncooperative Benghazi witnesses and send its own officers – such as the sergeant-at-arms – to enforce them. But Congress has long relied on the executive branch to prosecute contempt, no doubt in part because it leaves to the executive branch the unpleasant duty of pursuing individuals for refusing to cooperate with Congress. Speaker Boehner even expressed reluctance at arresting former IRS official Lois Lerner over her refusal to testify about the targeting of conservative non-profit groups. But if House Republicans find favorable political winds, or somehow muster up the moxie to exercise their unique constitutional powers, they can have the House Seargent-in-Arms arrest the recalcitrant witness. Then the constitutional sparks will fly.
Given what we know about Benghazi, it is unlikely that administration witnesses will have a legitimate Fifth Amendment claim. They will have a hard time pleading the Fifth to avoid criminal prosecution when no criminal laws appear to have been broken. The sensitivity of military and diplomatic information will fade as the State Department and intelligence communities have hopefully changed their failed practices and procedures. Nevertheless, Obama administration officials will still fill the Sunday morning news shows to cry foul against Congress and, ultimately, seek shelter behind the White House’s refusal to enforce the laws. In the end, Congress has the authority to respond by invoking its own constitutional powers, but whether the House will flex its constitutional muscles will require political courage that is rare in Washington.