One of the great tragedies in the age of former President Donald Trump has been the Democrats’ weaponization of Congress’ investigatory powers. This assault began barely after Mr. Trump was elected in 2016 with a now thoroughly discredited Russia hoax. It proceeded through two partisan impeachment trials and numerous and frivolous House Resolutions aimed at removing Mr. Trump from office. Now comes, most dangerously, the House Select Committee to Investigate the January 6th Attack.
This week, I filed a lawsuit to make sure that this kangaroo committee neither puts me in prison nor confiscates my property. Yet, my pro se suit is much more about resolving several critical legal controversies demanding the Supreme Court’s attention.
Controversy No. 1: Can a congressional committee neither duly authorized nor properly constituted issue legal and enforceable subpoenas? In this case, it’s not just that the kangaroo committee features the wrong number of members (9 not 13), a packed 7-2 Democrat-Republican supermajority, and House Speaker Nancy Pelosi’s refusal to seat any Republicans proposed by Minority Leader Kevin McCarthy. Most egregiously, the committee lacks a ranking minority member for the Committee Chair Bennie Thompson to consult with before issuing any subpoenas.
This is a fatal procedural flaw as both the general authorizing resolution for congressional committees H.Res. 8, along with H.Res. 507, which authorizes the committee, requires such a consultation. Ergo, all the committee’s subpoenas — including, ironically, the one issued to Mr. McCarthy himself — are ultra vires, unlawful and unenforceable.
With controversy No. 2, our Constitution rules out the simultaneous pursuit of a “judicial function” in which a congressional committee seeks to act as judge, jury and executioner behind the mask of a putatively legitimate legislative function. That is a clear violation of the separation of powers — punishment is reserved for the judicial branch — as well as the constitutional proscription against bills of attainder.
Yet Mrs. Pelosi’s kangaroos are clearly seeking to punish Mr. Trump and his most senior advisers by subjecting us to the shame, humiliation, ostracization, banishment and possible imprisonment that comes with false accusations of being insurrectionists seeking to overturn a fair election. Here, and in homage to the failed Russia hoax, Mrs. Pelosi’s kangaroo committee is now clearly trying to build a criminal case that would prevent Mr. Trump from seeking reelection in 2024.
To date, the courts have refused to address this controversy. Instead, they have given great deference to “facially valid” congressional inquiries. However, over time, this has emboldened kangaroo legislators like the committee to pursue judicial cum political objectives under their false legislative flag.
Repeated such abuses — including many by the seven Democrats on the committee over the last five years — have institutionalized a partisan weaponization of Congress’ investigatory powers that now threatens the delicate balance and separation of powers. Thus, this controversy is ripe for adjudication.
Controversy No. 3 focuses on whether an incumbent president can strip his immediate predecessor of executive privilege and that predecessor’s senior staff of testimonial immunity? This is an absurd and fanciful notion for which there is no case law support; yet, this is exactly what the committee and a complicit White House are trying to do to coerce my testimony and thereby force me to circumvent my duties and obligations under executive privilege.
Executive privilege dates back to President George Washington, who saw immediately the separation of powers dangers inherent in a legislative branch given free rein to meddle in the affairs of the executive branch. It, along with testimonial immunity, provides necessary shields to foster the kind of candor that must exist among the president and his most senior advisers to promote the most effective executive branch decision-making possible.
Here, Dellums v. Powell has it right when it opines: “[T]hose on whom a president relies for advice would be foolish indeed to discuss the demands of executive decision-making with candor, when every proposal would be subject to public disclosure through civil discovery.”
Here, now, is the very clear and present danger: If a passive judiciary allows the committee and Biden White House to institutionalize a revolving partisan door for the waiving of testimonial immunity and executive privilege, this will end both immunity and privilege as essential elements of effective presidential decision-making.
As partisans in the Congress wield their investigatory powers, they will enlist whatever friendly president might be in the White House to strip the executive privilege of former presidents and the testimonial immunity of former senior White House advisers. And it will all be done under the false flags of national emergency and national security — as the committee and White House are cynically seeking to do.
This is a very dangerous game the Democrats are playing. If the committee’s kangaroos and kangaroo-in-chief in the White House are able to establish this precedent in this case because of a passive judiciary, just imagine what will happen to Mr. Biden and his advisers if Republicans win both the White House and House in 2024.
I don’t need to imagine this. If I’m not dead or in prison, I will lead the “turnabout is fair play” charge. My very clear preference, however, is for the courts to take this controversy and the other two controversies featured in my lawsuit head-on.
• Peter Navarro is the former director of trade and manufacturing policy in the Trump White House and author of “Taking Back Trump’s America” (Bombardier Press).