Comey hearing: Why congressional oversight has broken down

Hyper-partisanship has undermined Congress's ability to do one of its main jobs: governmental oversight. Standout, bipartisan investigations, though few and far between, offer a better model.

J. Scott Applewhite/AP
Republican House Oversight Committee and Government Reform Committee members, from left, Rep. Ron DeSantis (R) of Florida, Rep. Mark Meadows (R) of North Carolina, and Rep. Thomas Massie (R) of Kentucky listen on Capitol Hill to FBI Director James Comey (r.) testifying July 7, 2016, on his agency's recommendation to not prosecute Democratic presidential candidate Hillary Clinton over her private email setup as secretary of State.

At an emergency hearing on Capitol Hill Thursday, Republicans repeatedly asked FBI Director James Comey about a “double standard” for Hillary Clinton in her handling of government emails on her private setup while secretary of State. How could Mrs. Clinton escape prosecution while “the average Joe,” as Rep. Jason Chaffetz (R) of Utah put it, would be “in handcuffs” for doing the same thing?

Mr. Comey expressed understanding for such questions – raised by many Americans as well – but said his professional investigative team, which didn’t “give a hoot about politics,” had found no criminal intent to break the law. And only once in the last century has the Justice Department brought charges based on a lesser standard, gross negligence. That case was for espionage.

“There is no way anybody would bring a case against John Doe or Hillary Clinton for the second time in 100 years based on those facts," the director told the House oversight committee, which had hastily called the briefing just days before a seven-week congressional recess.

One of the main jobs of Congress is governmental oversight, but lawmakers have a very hard time controlling their partisan impulses, especially when one party controls Capitol Hill and another the White House, according to congressional observers. Standout, bipartisan investigations, such as the iconic Watergate hearings of 1973, are actually few and far between, while hearings such as Thursday's shed more heat than light, they say. 

Members have brought this upon themselves, says former House historian Raymond Smock, coeditor of a two-volume history of congressional investigations. “In the hyper-partisanship of recent years, … they’ve tied their own hands. They’ve made it impossible for them to do their own job.” 

The consequence is an automatic assumption of partisanship and inattention to other serious issues.

“When oversight gets political, Democrats and Republicans obsess about the food fight du jour and overlook real problems in the administration of government,” says John Pitney, a congressional expert at Claremont McKenna College in Claremont, Calif.

Congressional oversight that worked

Take the waiting-time scandal at the Department of Veterans Affairs, which came to light in 2014, he says. It was building for years, affecting veterans all over the country. “So where was congressional oversight?”  

The hallmarks of effective oversight, say observers such as Mr. Pitney and Smock, are bipartisanship, thoroughness, and results – either recommendations to improve things or correction in the case of malfeasance.

They point to classic examples of congressional oversight that worked, either for their legwork or bipartisanship or both:

  •      Tobacco hearings under former Rep. Henry Waxman (D) of California, the most memorable being in 1994 when tobacco executives each testified that they believed nicotine is not addictive. Mr. Waxman drove legislation that gave the government the power to regulate tobacco and strengthen warnings on cigarettes and advertising.
  •      The Watergate hearings that eventually led to Republican President Nixon’s 1974 resignation. Potential presidential candidates were kept off the bipartisan, special Senate investigative committee to avoid the appearance that they were trying to advance their own chances at Nixon’s expense. It was a Republican staff member whose question revealed the secret Nixon tapes.
  •     The “Truman Committee,” a special bipartisan panel headed by then-Sen. Harry Truman (D) of Missouri, formed to investigate abuse and waste in World War II war production. President Roosevelt was so impressed with the findings – critical of his own administration – that he chose Truman as his vice president.

In contrast, Thursday’s hearing featuring Comey was “Kabuki theater,” comments Pitney, with the political actors playing their predictable roles.

“This is one of those situations where the Republicans are going to answer it one way and the Democrats will answer it another,” he says.

Partisan slant to questioning

Republicans pushed Comey on questions of Clinton’s intent and whether she lied to the FBI, citing the contradiction between her public statements and the FBI’s findings.

For instance, she has stated that she never sent or received classified information over her email (the FBI found 110 emails out of 30,000 that contained classified information, including Top Secret information), and that all work-related emails were returned to the State Department (the FBI found thousands that were not returned).

Congressman Chaffetz, chairman of the House oversight committee, asked flat-out whether Clinton lied to the FBI. While Comey earlier this week criticized her "extremely careless" handling of classified information, he responded that he had “no basis to conclude” that she lied to investigators.

Chaffetz said he would be sending the FBI a referral to investigate whether Clinton lied to the committee under oath. Meanwhile, House Speaker Paul Ryan (R) of Wisconsin has sent a letter to Comey asking that the FBI release all unclassified material related to the investigation and another letter to the Director of National Intelligence requesting that he withhold customary classified briefings for Clinton during the campaign.

'Should have known' not enough

Democrats praised the integrity of Comey, who was appointed to the Justice Department under Republican president George W. Bush, and to a 10-year term as head of the FBI under President Obama. Comey has been a Republican for many years, but said at Thursday's hearing that he is no longer registered with any party. If Clinton were elected, he would continue to serve under her. 

Ranking member Elijah Cummings (D) of Maryland, who blasted the hearing as politically motivated, bored in on one of Comey’s answers that only three emails out of the 30,000 had markings indicating that they contained classified information.

Those markings were not tagged in the email header, as is required, but were contained in the text, indicated by “(c)” before a paragraph. The director said at the hearing that it shouldn’t be assumed that Clinton was “sophisticated” enough to have recognized the different levels of classification or understood what a “c” in parentheses means.

In his Tuesday briefing, however, he said that given the nature of some of the emails, “any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation.”

And at the hearing, he stressed that his biggest concern was what federal employees might infer from the case. He wants to make sure they understand that mishandling of classified information carries consequences, from reprimand to dismissal.

In the case of Clinton, however, the FBI simply could not prove criminal intent – a unanimous conclusion among the investigative team, he pointed out.

“Should have known, must have known, had to know does not get you there,” he said.

The attorney general agrees. On Wednesday, Loretta Lynch formally declined to press charges, closing the case. Next week, it will be her turn to appear before the committee, though her appearance had been previously planned.

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