It started late Friday afternoon. While the rest of the country was parsing the just-released report on the FBI from the Justice Department’s inspector general, senior congressional leaders and selected committee chairmen quietly met with FBI Director Christopher Wray and Deputy Attorney General Rod Rosenstein at a secure location in the basement of the Capitol.
At issue was Justice and FBI’s continuing defiance of congressional subpoenas. At the top of this list is the demand from the House Permanent Select Committee on Intelligence for documents about why and whether the FBI had an informant insinuating himself with Trump campaign officials before the Russia investigation officially started.
On Sunday on Fox News, Devin Nunes, the House Intel chairman, made clear his "patience has run out." The good news is that he and the other House chairmen at the Friday meeting‐Judiciary’s Bob Goodlatte and Oversight and Government Reform’s Trey Gowdy ‐were fully backed up in their demands by Speaker Paul Ryan. Mr. Ryan sent Messrs. Rosenstein and Wray an unambiguous message: Comply with Congress’s orders this week.
In a radio interview Monday morning with Milwaukee’s WISN, Mr. Ryan said "the new leadership at Justice and the FBI" has to decide whether it will be "part of the cleanup crew or the coverup team." If Justice and the FBI don’t comply within the timeline he laid out, he said, "we are going to have to take action."
Of all the actions Congress could take, a contempt finding or an impeachment is the most substantial. Unfortunately, recent Republican history with regard to the former doesn’t incline to optimism.
Lois Lerner, the former official at the heart of the IRS targeting of conservative groups, and Eric Holder, Barack Obama’s attorney general, were each held in contempt by Congress. But in both cases, Congress blinked when it came to imposing effective consequences.
In June 2012, Mr. Holder was held in contempt for withholding documents Congress wanted from the botched Fast and Furious operation that put firearms in the hands of Mexican drug cartels. It was the first time Congress had taken such a move against a sitting cabinet member. The first contempt resolution referred the attorney general for criminal charges, while a second launched a civil suit seeking a court to order Justice to turn over the documents.
The Obama Justice Department declined to act on the criminal referral‐as everyone knew it would. Though a judge would ultimately reject the administration’s claims of executive privilege, the ruling didn’t come until 2016. By that time Mr. Obama was wrapping up his second term, Mr. Holder had retired, and Fast and Furious had long since faded from the headlines.
But Congress has a third option for contempt: It can jail someone until he produces the testimony or documents sought. The advantage here is that Congress can do this all on its own. The last time Congress used contempt to jail was in 1934, when the Senate arrested, tried and then sentenced former Assistant Commerce Secretary William P. MacCracken Jr. to 10 days for allowing the removal and destruction of papers he’d been subpoenaed to produce.
You have to go back even further for the last time Congress impeached an executive-branch official. In 1876, Congress accused Secretary of War William Belknap of using his office for private gain. But if Sally Yates as deputy attorney general could cite the 1799 Logan Act, which no American has ever been convicted of violating, to intervene in the Mike Flynn case, surely Congress needn’t be shy about its Article I constitutional power to impeach.
The obstruction of Justice and the FBI appears rooted in the mistaken idea that they are somehow above the elected representatives of the American people. While Mr. Rosenstein has referred to congressional talk of impeaching him as "extortion," Mr. Wray, in his statement to a press conference outlining steps to fix the FBI, conspicuously made no mention of better cooperation with Congress.
An impeachment that removed either Mr. Rosenstein or Mr. Wray‐or a contempt finding that sent one of them to the congressional pokey for a spell‐could send a good message to federal bureaucrats inclined to be dismissive of congressional subpoenas. Then again, if either man thought he was in real and imminent danger of being impeached or held in contempt, Congress would likely find him instantly cooperative. Of course, that’s exactly why Congress has these powers‐not so much to punish but to encourage accommodation and respect.
But if Messrs. Rosenstein and Wray don’t accommodate, and if the stonewalling starts again, the House ought to impeach or jail until it gets satisfaction. Because a congressional power Congress is too timid to invoke is worse than a hollow threat: It becomes a sign that Congress need not be taken seriously.