Republican members of Congress should not be surprised the U.S. Department of Justice and its Federal Bureau of Injustice (collectively the “DOJ”) has gone rogue by indicting a former president, threatening parents speaking at school board meetings, and labeling Catholics who attend Latin mass as terrorists. It has been forty-four years since the Congress of the United States fully re-authorized all the programs administered by the DOJ. During that period, the Republicans controlled both the House and Senate for 16 years; the House for 22 years and the Senate for 22 years. In the middle of the 107th Congress, the Senate switched party control.
Failing to re-authorize the DOJ as its expired authorities means Congress, even Republican Congresses, did not do the hard work of reviewing all of its programs to determine what is working, what is not working, and which of its activities are criminal. Due to this lack of congressional supervision, the DOJ acted irrationally like the stranded boys marooned on an island in The Lord of the Flies.
In 1998, Henry Hyde, then chairman of the House Judiciary Committee, noted, “Authorization [the congressional re-authorization 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 re-authorization at the end of that period.
Chairman Hyde’s efforts were the last serious attempt by Congress to comprehensively re-authorize the statutory authority of the Department of Justice. Regrettably, the overall activities of the Department of Justice were last formally re-authorized by Congress in 1979.
Given this background and the recent Horowitz and Durham reports, Americans should not wonder why the DOJ acts 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 actual criminal activity from the public.
The re-authorization 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 expired laws to be re-authorized. 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 re-authorized. 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 for back as 2002, in a letter to DOJ, Senator Grassley 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 justice system, 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 re-authorized by Congress, the overall re-authorization of the DOJ as an Executive agency has escaped oversight. It should be noted that under FISA, the DOJ and FBI filed false affidavits with the court, proving even a re-authorization review cannot catch professional fraudsters.
In its 2023 Budget request, DOJ requests $6.2 billion to implement hundreds of programs that Congress has not reviewed 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 and then indicts him for possessing classified documents while allowing the sitting president weeks for his lawyers to gather documents. These actions represent the DOJ’s “rule of law,” an effort to to destroy Democracy.
While the House Judiciary Committee’s investigation of the DOJ’s weaponization of the Executive branch to prosecute its political enemies is worthwhile, it is not a substitute for a full review and re-authorization, approval, modification, or elimination of every program administered by the DOJ. If any agency in the U.S. government requires oversight and reorganization, it is DOJ. As part of a comprehensive re-authorization process, Congress should:
Review 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 Congress can assess the criminality of the organization. To achieve this goal, the present and former DOJ and FBI officials should be granted Use Immunity so they testify honestly, without fear of incriminating themselves. Only by having such immunity will criminals tell the truth. Otherwise, the agencies will again assert many objections to answering questions. DOJ administers so many programs it could easily run out the legislative clock on Congress. 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 the DOJ/FBI, such as counterterrorism, counterintelligence, weapons of mass destruction deterrence, and cyber security? Should these programs be transferred to other agencies to preserve the rule of law and our Democracy?
What would a restructuring of the DOJ 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 to do. Should it be just a law enforcement agency as before 9/11, or should it be the master of the domestic and international law enforcement circus as it is now?
Should Congress establish a non-partisan commission to oversee the DOJ’s activities and report to Congress regularly?
Next, Congress must determine what is working at DOJ that needs to be preserved. What is broken but can be fixed? What is so corrupt it is harmful to Democracy and must be eliminated? The re-authorization process allows Congress to answer these essential questions needed to preserve our Democracy. It is now time to start the DOJ re-authorization process.
