On March 30, a grand jury in Manhattan indicted former President Donald Trump on 34 counts of falsification of business records. The indictment was unsealed when the former president was arraigned in state court the following Tuesday. This is an extraordinary event: the first time in U.S. history that a sitting or former president has been indicted in any court.
The response of congressional Republicans has crossed a line from oversight to political interference, thereby threatening to undermine the rule of law. Even before the announcement of the indictment, Republican congressional committee chairs threatened to subpoena confidential records from the investigation and withhold federal funding in retaliation for any indictment. Two days after Trump’s arraignment, House Judiciary Chair Jim Jordan subpoenaed a former special prosecutor from the Manhattan district attorney’s office who had worked on (and written a book about) the case, prompting current Manhattan District Attorney Alvin Bragg to file suit in federal court to block that subpoena and all others. The criminal prosecution of a former president is undoubtedly a sensitive undertaking, but any allegations of abuse should be addressed in the first instance through ordinary legal processes in court, not partisan interventions by Congress.
In two letters — the first of which was sent two days after Trump called for his supporters to protest his allegedly imminent arrest in Manhattan — Jordan and the chairs of the House Committees on Administration and Oversight attacked Bragg and his investigation. They demanded that the DA turn over a range of internal documents, all ostensibly relevant to potential legislation about the prosecutorial powers of federal and local authorities and the office’s use of federal public safety funds. Bragg disagreed, challenging the requests in both his lawsuit and two written responses to the congressional committee chairs. Among other things, Bragg argued that producing nonpublic information about a pending local criminal investigation would jeopardize witness confidentiality and constitute an “unprecedented and illegitimate” invasion of state sovereignty. He is correct.
Whatever the ultimate outcome of his case against Trump, Bragg is right that the demands from Jordan and the other committee chairs are unprecedented and problematic.
To be sure, congressional oversight can be a powerful tool for justice. Over the course of this country’s history, key oversight investigations have looked into Ku Klux Klan violence during Reconstruction, risky Wall Street banking practices, the Vietnam War, and the Watergate scandal. And law enforcement practices are certainly fair game, from the Church Committee’s investigation that revealed rampant abuses at the CIA and FBI to more recent scandals, like the politically motivated firing of U.S. attorneys during the George W. Bush administration. But the current demands for internal documents related to a specific, ongoing county-level matter are nothing like these other examples.
Congress’s oversight power, while broad, has limits. The Supreme Court has held that for a congressional subpoena to be enforced, the relevant investigation must serve a valid federal legislative purpose that is adequately identified. The Court has noted that “investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.” And a subpoena should not be designed to usurp the role of law enforcement, because “those powers are assigned under our Constitution to the Executive and the Judiciary.”
These considerations all weigh strongly against any congressional effort to demand internal documents related to a specific ongoing law enforcement matter. The one clear exception is for impeachment proceedings. Indeed, congressional committees have successfully sought materials related to federal grand juries for impeachment proceedings because, as the DC Circuit Court of Appeals recently noted, Congress essentially takes on a “judicial” role in these situations.
It is especially problematic for Congress to subpoena investigative materials from state and local, rather than federal, law enforcement agencies, as Bragg’s lawsuit points out. Under our federal system, Congress does not exercise general oversight over state agencies the way it does over federal ones. While congressional committees have sought information from state agencies, they have typically stopped short of issuing subpoenas or have issued subpoenas they made no effort to enforce. And although many state and local agencies, like the Manhattan DA’s office, do receive some federal funds, no court has ever held that the receipt of funds alone gives Congress license to compel state law enforcement to turn over unrelated confidential investigative materials. Indeed, to the extent Congress tried to condition receipt of funds on state authorities pursuing or dropping specific criminal matters unrelated to the use of the funds, that would likely constitute improper coercion.
None of this is to claim that prosecutorial abuse isn’t a serious issue or to deny that Congress has an important role to play in setting broad policy to address it at both the federal and state levels. In individual prosecutions, however, the primary check on prosecutorial misconduct is the courts, including the federal courts, which have the power to safeguard federal constitutional rights in state-level criminal proceedings.
This division of power makes sense and reflects long-standing concerns about the dangers of political leaders meddling in specific law enforcement matters because of the risk of undermining the fundamental notion that the law applies to everyone equally. Several years ago, the Brennan Center convened a bipartisan National Task Force on Rule of Law & Democracy, which analyzed instances of the White House meddling in Department of Justice investigations under Trump and his predecessors of both parties. It concluded those intrusions were inappropriate because “they cast doubt on a crucial premise of any healthy democracy: that the law not be used to favor or punish anyone based on politics.” The same logic applies to congressional leaders.
Unfortunately, congressional efforts to meddle in the Manhattan DA’s prosecution of Trump are part of a worrying trend that threatens to intensify. In addition to committee chairs interfering in the New York City case, House leaders have signaled that they may try to hinder the DOJ special counsel investigating efforts to interfere with the lawful transfer of power following the 2020 presidential election and the retention of classified documents at Mar-a-Lago. And as another state criminal investigation of Trump progresses in Atlanta, state legislators in Georgia have advanced a measure to allow state officials to discipline and remove locally elected prosecutors.
Lawmakers of course have the right to express disapproval of officials at all levels of government and to invite such officials to appear before committees. It is also clearly appropriate for congressional committees to investigate and address systemic abuses and threats to civil rights. But efforts to compel the production of nonpublic information about a specific case from a local prosecutor or otherwise meddle in their investigation crosses the line to political interference that threatens the rule of law.