The Investigative Weapon

 The coming onslaught of House investigations of the Biden administration is merely the next chapter in a long, sad decline of American politics.  Congress's power to investigate the Executive Branch remains in m opinion a cornerstone of our liberties, but it is also subject to grave abuses, especially in times of extreme partisanship.  Meanwhile, over the last fifty years or so, our criminal justice system has also become a political weapon thanks in part to the now-defunct independent counsel law.

The modern political use of the investigative power, I would argue, began in the late 1930s, when the House of Representatives created the Un-American Activities Committee.  Originally the suggestion of a leftwing Congressman Samuel Dickstein of New York, who wanted to investigate Fascist groups, the Committee immediately fell under conservative domination, with Martin Dies, a Texas Democrat, as chairman, and targeted various New Deal enterprises on the grounds that they harbored subversive left wingers.  After the Republicans took over the Congress in 1946 that committee--which included freshman Congressman Richard Nixon of California--raised allegations of Communist spying inside the government, including the former State Department official Alger Hiss, who was eventually convicted of perjury based on his testimony before the committee. In that case the committee was doing its constitutional job.  The executive branch knew of serious allegations against Hiss, Harry Dexter White,  and others, and had done nothing about them, and we now know from the Venona intercepts of Soviet cable traffic that Soviet spying within the government was a serious problem.  But the committee also targeted Communists and fellow-travelers in every walk of life, and cost a great many people their livelihoods simply for holding unpopular opinions.  

Beginning in February 1950 Senator Joseph McCarthy of Wisconsin built on the committee's work with a series of fantastic and utterly unsupported accusations of Communists in government.  McCarthy, generations of scholars have now concluded, never found a single such person himself: every one that he had attacked was either innocent or had already been identified by someone else.  Yet he contributed to the discrediting of the New Deal enterprise and the Truman administration that brought Eisenhower and a narrowly Republican Congress into power in 1953.  McCarthy had enough clout within his party to become the chairman of the Permanent Investigations Subcommittee of the Government Operations Committee, and he surprised everyone by going after the Eisenhower Administration as hard as he had the Truman administration.  That led to his fight with the Army, the televised Army-McCarthy hearings, and his 1954 downfall.  That episode, thankfully, largely discredited that kind of Congressional inquisition for a long time.

The abuses of the Nixon Administration in the 1972 campaign--including the break-in and bugging at the Democratic National Committee in the Watergate building--led to a truly bipartisan Senate Committee investigation, led by Sam Ervin of North Carolina, that riveted the nation for several months and did a great deal to lead to Nixon's near-impeachment and forced resignation.  The role of special prosecutors Archibald Cox and Leon Jaworski in bringing the Nixon people to justice also led to the passage of an independent counsel law, which could be triggered by almost any accusation against a public official.  And because trial lawyers are trained to build cases--not to render reasonably impartial judgments in advance of an indictment--that law certainly did lead to a number of highly questionable criminal cases brought on relatively narrow grounds.  When in 1987 independent counsel Lawrence Walsh was appointed to investigate the Iran-Contra scandal, the Reagan and Bush I's political and legal strategies--culminating in Bush's lame-duck pardon of most of the men Walsh had convicted--managed to protect the guilty.  

Unfortunately, by the time the Clinton administration took power, Republicans regarded both Watergate and the Iran-Contra investigation as partisan efforts which they now wanted to emulate.  When the Whitewater investigation was going nowhere in 1994, Senators Jesse Helms and Lauch Faircloth met with one of the federal judges charged with appointing an independent counsel and evidently persuaded him to replace the incumbent, who was willing to drop the proceedings, with the zealous Ken Starr.  Starr, of course, turned the investigation into an inquiry into the President's personal life, leading to his impeachment for lying about a sexual encounter during his second term.  Some Republicans apparently regarded this as "payback for Watergate," but several Republican Senators joined the Democrats in acquitting Clinton.  The Bush II administration controlled both houses of Congress for most of its life, and the Democrats launched a very professional investigation of the torture of captives after 2007 which was not completed for quite a few years later.   The Republicans under Obama regained control of the House in 2010 and of the Senate in 2014, and Congress launched six different investigations of the deaths of several US diplomats in Benghazi in 2012--the last of them clearly aimed at the presidential candidacy of then-Secretary of State Hillary Clinton.  The Congressional Republicans did not launch full-scale investigations of her use of a private email server while in office, but the federal bureaucracy pursued them vigorously in an attempt to show impartiality, with FBI Director James Comey eventually clearing her on narrow grounds. 

Given Donald Trump's background and behavior in office, Democrats in Congress inevitably began several investigations of him when they regained control of the House in 2018.  These included not only two separate impeachment inquiries--both of which led to trials, but not to convictions, in the Senate--but also attempts to secure his tax returns, which were finally successful just a few weeks ago.  They continued after Trump left office with the January 6 House Committee, which built a well-documented case against Trump for participating in various illegal efforts to remain in office. The Justice Department is now investigating those now, as well as Trump's possession of classified material after he left office.  

One can believe, as I do, that Trump has been guilty of serious financial and political abuses and should certainly have been convicted in his impeachment trials, yet also regret that the Democratic Party is now relying on the legal process--or, as one might put it, on the deep state--to remove him as a political threat in the next election, rather than on a demonstrated ability to meet the needs of the American people.  And now, the new House Republican majority, led by its most extreme elements, is going to launch a series of investigations of its own--into the supposed political weaponization of the FBI and CIA, into the financial dealings and tax returns of the President and his son Hunter, into the handling of the withdrawal from Afghanistan, into the enforcement of border control, and much more.   As I write they are undoubtedly adding Joe Biden's possession of classified material while out of office to their list.   They also want to assert a Congressional power to withhold salaries from executive branch workers whom they do not like.  They do not know, perhaps, that Congressional Republicans tried that tactic during the Second World War, only to have the Supreme Court invalidate their legislative riders denying salaries to certain dealers in U.S. vs. Lovett on the grounds that they constituted an unconstitutional Bill of Attainder.

These investigations are the next phase of the Republican dau tranh campaign to discredit the whole enterprise of government, which I described at length here more than ten years ago and have had several occasions to refer to again since then.   The media has effectively collaborated with that campaign at least since the Clinton years, partly to show impartiality but mostly, I think, .because scandals sell clicks.  Yes, it is easy to argue that the Democratic and Justice Department investigations have dealt with real abuses while the Republicans are focused entirely on political points, but both parties' reliance on these tactics, I think, reflects the real tragedy of 21st century politics: the failure of both parties to build a lasting majority among our people by showing that they can really meet their needs and provide any alternative to the oligarchical rule of financial and corporate power.