In 1998, Henry Hyde, then chairman of the House Judiciary Committee, noted, “Authorization [the congressional reauthorization process to renew laws] is the process by which Congress creates, amends, and extends programs in response to national needs. Authorization is perhaps the most important oversight tool that a committee can employ…” Most laws are authorized for 3 -5 years and need reauthorization at the end of that time period.
Chairman Hyde’s efforts were the last serious attempt by Congress to comprehensively reauthorize the statutory authority of the Department of Justice. Regrettably, the overall activities of the Department of Justice were last formally reauthorized by Congress in 1979.
In light of this background and the recent Horowitz and Durham reports, the American people should not wonder why the Department of Justice and its FBI act as a crime syndicate. DOJ has not been supervised or questioned by Congress in almost a half-century. It has been given whatever it requested; its indolence has been tolerated. Now it is an uncontrollable plague on the nation that initiates false investigations of its enemies and hides real criminal activity from the public.
The reauthorization process for laws and Executive agencies is hard work. It requires a complete review, approval, amendment, or repeal of every statute within the jurisdiction of the agency being examined. Unfortunately, Congress flaunts its own rules requiring it to reauthorize expired laws. House of Representatives Rule XXI provides that “[A]n appropriation may not be reported in a general appropriation bill…for an expenditure not previously authorized by law…” Compliance with this rule would seem to ensure Departments like DOJ could not be funded without being reauthorized. Congress gets around this rule by waiving it. Chairman Hyde describes this waiver process as “The de facto ceding of the authorization power to appropriators.” Hyde concludes such a process diminishes the role of the House and Senate Judiciary Committees.
As far back as 2002, Senator Grassley, in a letter to DOJ, described the agency as one that encroached [interfered] on many of the essential investigations of other federal agencies. He also noted there was a two-tiered system of justice, with the senior officials prosecuting one way and the rank and file another way. The Senator concluded that the DOJ’s Federal Bureau of Investigation shows “a contempt for any public or private entity that dares to question its motives or performance.”
While a few DOJ programs, e.g., violence against women and the FISA activities, were reauthorized by Congress, the overall reauthorization of the DOJ as an Executive agency has escaped oversight for 44 years. It should be noted that under FISA, the DOJ and FBI filed false affidavits with the court, proving even a reauthorization review cannot catch professional fraudsters.
In its 2023 Budget request, DOJ requests $6.2 billion for literally hundreds of programs that have not been reviewed by Congress in decades. It also filed a 2022-2026 Strategic Plan. Goal 1 of its Strategic Plan is to “Uphold the Rule of Law.” It will achieve this goal by protecting the country’s Democratic institutions and promoting good government. These commitments are made while it refuses to comply with congressional information requests, hides information to protect Hunter Biden, refuses to allow Congress to examine bank records, invents the Russian collusion scandal to tarnish a sitting president and raids the home of a former president for possessing classified documents while giving the sitting president weeks to gather documents. This is the DOJ/FBI “rule of law.”
If any agency in the U.S. government is in need of oversight, it is DOJ. It is the duty of Congress to undertake the full reauthorization process, including:
A review of every program from litigation to community policing to state and local grants. Any program that cannot justify that it has accomplished the intent of the statute creating it or failed to protect the rule of law should be immediately defunded.
A review of all alleged criminal activity by the DOJ and FBI so the committee can assess the honesty or criminality of the organization. To achieve this goal, the DOJ and FBI leaders for the past decade should be granted Use Immunity so they testify honestly, without fear of incriminating themselves. Only by granting such immunity will a criminal testify to the truth. Otherwise, the agencies will again assert many objections to answering questions. The granting of Use Immunity opened the flood of testimony in the Watergate hearings, it is time to grant it again so Congress can reform the DOJ and FBI.
The difficult policy questions should be asked. Should the billions for Community-based programs be converted to block grants to state and local governments? Does an organization like the FBI that refuses to cooperate with Congress deserve billions of dollars for a flashy new building? Has Congress transferred too many new programs to DOJ/FBI, such as counterterrorism, counterintelligence, weapons of mass destruction deterrence, and cyber security? Should all of these programs be transferred to other agencies to preserve the rule of law?
What would a restructuring of the DOJ and FBI look like? This is the obvious question. Unfortunately, there is no obvious answer. Rather than protecting Democracy, these massive agencies are a threat to Democracy. Congress needs to determine what it wants the DOJ/FBI to do. Are they just law enforcement agencies as prior to 9/11, or are they to be the master of the law enforcement circus as they are now?
Next, Congress needs to determine – what is working at DOJ/FBI that needs to be preserved. What is broken but can be fixed to work? What is so corrupt it is harmful and must be eliminated due to its harm to Democracy? The reauthorization process gives Congress the opportunity to answer these essential questions needed to preserve our Democracy.
William L. Kovacs has served as senior vice president for the U.S. Chamber of Commerce, chief counsel to a congressional committee, and a partner in law D.C. law firms. His book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change. He can be contacted at [email protected]