Congress is on the warpath against Peter Strzok and the FBI. Even before the DOJ Inspector General’s report, Republicans in the House wanted Strzok’s scalp together with the FBI investigative files on both the Hillary Clinton email and the Trump campaign Russian collusion investigations he managed.
Both the proposed Strzok scalping and the files subpoenaed raise issues that have come up in the past. I’m sure that House Republicans don’t give a damn about the policy questions raised by their demands for the firing and criminal prosecution of Strzok and getting raw FBI files.
I address Strzok first.
The problem with Strzok is that our email and text world has led to the disclosure of personal anti-Trump text messages, including one seven-word text declaring to his girlfriend that they would “stop” him, that would never have seen the light of day in the pre-email and text era. The DOJ Inspector General’s report condemned Strzok for mouthing off but found that his bias did not affect his professional judgment in the Clinton email investigation. The Russian investigation is not addressed in that report.
Simply put, according to the IG report, the exoneration of Clinton (if you can call it that as the process to do so sank her campaign) was the product of the professional Strzok beating out the personal Strzok.
You don’t have to be Freud to know that the boundary between the personal and the professional is often ambiguous. For example, feminism as a lifestyle and a deeply held belief may impact the professional judgments of lawyers, doctors, psychologists and business people but should not deter feminist women from pursuing ethical professionalism.
There are stark cases where the personal must be overcome if the professional is to be achieved. The emergency room physician treating a wounded mass murderer cannot let her hatred deter her obligation to save a life.
In the end, whether the offensive Strzok texts were real examples of animus or, for example, machismo outbursts more related to “getting” the girlfriend than stopping Trump is unknowable. The best we have is the Inspector General’s conclusion that Republicans will dump on while dumping on Strzok himself at Wednesday’s congressional hearing.
What about Congress’s subpoenas of DOJ records? What are respective positions of DOJ and Congress on congressional oversight of open criminal investigations? In short, Congress says it has oversight rights and can get files. DOJ says that Congress has no such right.
The classic DOJ position was stated in an opinion in 1941 by then Attorney General Robert H. Jackson (later Justice Jackson). He cited three reasons why turning over active investigation files should be impermissible: (1) prospective defendants would learn “how much or how little information the government has” thus prejudicing the government; (2) confidential informants would be compromised in violation of the promises of secrecy DOJ made to get the information from them; and (3) disclosure would be the “grossest kind of injustice to innocent individuals” who may be maliciously accused even though later reports might exonerate them because a “correction never catches up with an accusation.”
Congress’s classic position is that in the absence of a statutory ban, oversight is essential and does not and cannot dictate prosecutorial decisions in particular cases. Fat chance of that happening here: Congress will demand an end to the Russian investigation as soon as it gets DOJ files.
Actually, DOJ has frequently provided what Congress wanted in cases of corruption; grand jury curbing; police brutality on New York City; the ABSCAM investigation; the Iran-Contra investigation; and others. But in each of these instances, the congressional inquiry was bipartisan and substantive.
Since Congress will get the subpoenaed files involving both the Hillary Clinton and Russian investigation, and we will know what is in them instantaneously no matter how many promises of secrecy are proffered, the question is whether congressional Republicans will be acting out of a desire to do real oversight and not to affect particular cases as in the past. Or do congressional Republicans intend to influence the 2018 and 2020 elections by bombarding the Russian investigation with invective and killing it.
I suggest the latter. And I further suggest that congressional Republicans will be doing the bidding of the White House in publicizing and politicizing the material that they get from DOJ.
But I don’t think voters care about either investigation so the whole exercise of demonizing Strzok and knocking the Russian probe may turn out to be a Beltway game of little interest to all but the hard core Trump “base.” Republicans have those folks anyway.
2018 will turn on separate circumstances affecting each separate congressional district and I think Strzok and DOJ files will not be among them. Most of these circumstances cannot now be identified. Overnight is an eternity in politics.