Saturday, December 4, 2021

It’s misleading to claim congressional oversight was blocked after DOJ program change, analysts say

WASHINGTON —

Rep. Jim Jordan, R-Ohio, the former chairman of the House Freedom Caucus, is pushing back after fellow Republicans on the panel grilled Jeff Sessions, the attorney general, about the Justice Department’s decision to no longer notify Congress of federal criminal indictments after May 17.

The move at the Justice Department raised questions from Jordan and others that Sessions had purposely omitted them from a report that he said was only to describe the “executive branch.”

“Let me make something crystal clear: They told us when this program went into effect,” Jordan said of the Executive Office for U.S. Attorneys, the division of the Justice Department that handles individual indictments. “It is more than clear they did tell us … let’s just fix it or notify the House. They never informed us we would not be notified.”

But Jordan’s statement about the program and its more recent decision to no longer notify the House are misleading.

U.S. attorneys are authorized to notify the House Oversight and Government Reform Committee as well as committees at other federal departments if the Justice Department identifies possible “political, personal, or financial” damage to a congressman or candidate based on a grand jury indictment.

The House panels can then ask federal investigators about the decision to keep the information secret. But even under the GOP legislation that would have notified all committees to disclose any indictments after May 17, the justice departments still could have opted to keep federal prosecutors from providing the information if there was a possibility it could get in the way of a case.

The process does not amount to “charging bias,” according to the nonpartisan Congressional Research Service.

Moreover, the reason congressional overseers lack the ability to know after an indictment has been filed is because the information comes directly from the Justice Department, not from Congress. Under federal law, U.S. attorneys may use grand jury subpoenas to compel testimony and materials, but they have a responsibility to comply with redactions at the direction of the executive branch.

Federal law prohibits Congress from telling someone, except in rare instances, that the Justice Department has provided evidence to them that might be used against them. What happens in many criminal cases is that prosecutors prepare documents for the public while keeping material in a personal file of sorts that simply tells the grand jury — and Congress — nothing that might show why charges are filed or where the case will take the defendants. Prosecutors say they do so to ensure they do not provide information that could be used to prove targets’ credibility or deniability during a trial.

When prosecutors decide to withhold grand jury indictments or something related to them from Congress, that information is specifically excluded from reporting requirements under a 1974 law enacted in the wake of the Iran-Contra Affair. The legislation went after elements of that affair that were traced to disgraced Sen. Jacob “Kissinger’s shop” Javits, and prevents the disclosure of information about ongoing investigations. The Justice Department, for example, determined that evidence collected in a 2016 investigation into allegedly corrupt dealings between Ukrainian oligarchs and U.S. taxpayers should not be disclosed to Congress.

During Tuesday’s five-hour hearing, House Oversight Chairman Trey Gowdy, R-S.C., led a five-hour-long attack on Justice Department officials for what Jordan characterized as a tendency to keep Congress in the dark about indictments.

But Sessions was essentially on his own when it came to explaining the protocol in the wake of a May 17 email from Deputy Attorney General Rod Rosenstein to U.S. attorneys saying they had the discretion to decide whether to provide notice to Congress once they presented indictments.

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