Dick Durbin needs to step up and do his damn job
Believe it or not,
Durbin can learn something from Jim Jordan.
JUN 06,
2024
The Republican-controlled House Judiciary Committee on Tuesday held a lengthy oversight hearing to badger Attorney General Merrick Garland and push the GOP’s false narrative about President Biden weaponizing the DOJ against Donald Trump.
Even though the hearing
was conducted in obvious bad faith, it was in some ways successful, at least in
the limited sense that Republicans grabbed a lot of headlines and forced
Garland to spend a day on the defensive. Virtually every major news outlet it
extensive coverage, ranging from the New York Times to MSNBC to Newsmax.
The hearing meant that
for at least a day, everyone talked about whether the DOJ is treating Trump
unfairly, rather than about, say, whether Trump should step aside from the GOP
presidential nomination given his felony convictions, or whether Supreme Court
Justice Sam Alito should recuse himself after an insurrectionist flag was flown
over his house.
Congressional oversight
hearings give Congress a chance to focus the national conversation on what
members want to talk about. It gives them a chance to pressure executive branch
officials to adopt congressional priorities, or to explain and potentially embarrass
themselves.
In contrast, Democrats in the Senate have been bizarrely reluctant to use hearings to advance their agenda. Dick Durbin, chair of the Senate Judiciary Committee, has refused to hold hearings to investigate egregious evidence of Supreme Court Justice Clarence Thomas receiving gifts from far right billionaires, or to demand answers from Alito about his apparent embrace of the insurrection. Instead, he’s posting weak statements on social media meekly calling for right-wing members of the Court to do a better job policing themselves.
Republicans like Jim
Jordan are ignorant about a lot of things. But they understand that the gavel
is power, and they are not afraid to use it. Senate Democrats need to get over
their qualms and, in this instance, behave more like their rivals across the
aisle.
The GOP uses hearings to exert pressure
Hearings drive
narratives. But they can do more than that. Congress has real power to pressure
government officials, and hearings are a way to demonstrate and exercise that
power.
In the case of the
Garland hearing, Republicans had a clear goal; they want to force him to
release audio tapes from Special Counsel Robert Hur’s interviews with President
Biden. Hur was investigating whether Biden had improperly handled classified
documents.
Hur, a long-time
conservative and a Trump appointee, determined that there was no case against
Biden. But he also denigrated Biden’s intelligence and memory in a misleading
summary designed to grab headlines. Republican and mainstream outlets jumped on
the summary to reinforce the (false) idea that Biden is mentally unfit for the
presidency.
Republicans would love
to reup the Hur story again and again, and they have a plan for doing so. The
Justice Department released a transcript of Biden’s testimony with Hur. But
Republicans have subpoenaed the recordings and have threatened to hold Garland
in contempt if he does not comply — a charge that if upheld can result in jail
time.
During Tuesday’s
hearing, Rep. Andy Biggs was forthright in explaining why Republicans
subpoenaed the tapes; he said he wanted to hear if Biden had stuttered in
answering questions. (Watch below.)
Biden has had to deal
with a stutter throughout his life; as Democrats on the committee pointed out,
the GOP wants audio recordings so that they can falsely claim that Biden’s
speech impediment is evidence of cognitive decline.
Garland said he would
not be “intimidated” and has asserted executive privilege, arguing that if the
tapes were released, it would set a precedent which would make other officials
unwilling to cooperate with investigations and sit for taped interviews. Or in
other words, treating criminal prosecutions as partisan witch hunts can
undermine the Justice Department’s ability to investigate crimes.
That seems like a pretty
reasonable argument. But as Garland is no doubt aware, courts can be
unpredictable, and defending yourself from contempt charges can be time
consuming, stressful, and potentially embarrassing. House Republicans are using
their subpoena power to pressure Garland to do what they want. If the case does
go to court, they’re ensuring there will be more headlines about Biden and Hur
during the election.
Either way, Republicans
are using their power in the House to hold hearings, subpoena materials, and
advance their agenda of humiliating the Biden administration and boosting
Trump.
Senate Democrats need to get a clue
Democrats have of course
decried the House hearings on Garland as nakedly partisan nonsense.
Garland himself pushed
back forcefully against (baseless) Republican claims that the Justice
Department had somehow been behind the successful New York state prosecution of
Trump on charges of falsifying business records related to hush money payments.
Garland described the claim the Justice Department was involved as a
“conspiracy theory” and an “attack on the judicial process itself.” (Watch
below.)
Forceful rejection of
Republican lies is a good thing. But there are limits to playing defense. And
Democrats have good reason to launch their own judicial investigations not of
the Biden Justice Department, but of the Supreme Court.
This year, after an
extensive investigation, ProPublica determined that Clarence Thomas has for 20
years received lavish gifts, including vacations and loans, from billionaire
Republican donors like Harlan Crow. More recently, the New York Times reported that in the days after the January
6 insurrection, an upside-down flag — a symbol of support for Trump’s coup
attempt — was raised over the home of Justice Samuel Alito.
Thomas and Alito have
shown clear evidence of corruption and/or bias. The Senate Judiciary Committee
is supposed to provide oversight for the judiciary and monitor ethical
standards and practices. This seems like a great opportunity to hold hearings
on the far right Court and demand accountability.
Or so you’d think.
Durbin has been weirdly but consistently timid. He has not called Thomas to
appear before the Judiciary Committee, claiming that Thomas would just refuse
to show up.
In the case of Alito,
Durbin has called on him to recuse himself from cases involving Trump and the
2020 election — including the Court’s current case on whether Trump has
immunity from prosecution from his role in January 6. But Alito has refused to
recuse, and Chief Justice John Roberts refuses to meet with Durbin and his
committee to discuss the matter. The Court has also failed to adopt even the
minimal toothless, unenforceable ethics standards that Durbin has been
haplessly pushing for years.
So, if Alito and Roberts
say they won’t cooperate, is that that?
Of course not. Congress
has a lot of power. Durbin could subpoena Alito and Thomas and threaten to hold
them in contempt if they don’t appear at hearings, just as the House has
threatened to hold Garland in contempt. The spectacle of Supreme Court justices
lawlessly rejecting subpoenas to even talk to Congress would in itself be a
huge story. It would generate media headlines and bringing pressure to bear on
Thomas and Alito to recuse themselves from cases involving Trump.
The Senate Judiciary
Committee could also subpoena others involved in undermining the integrity of
the court. The committee has actually approved subpoenas for Harlan Crow and
Leonard Leo, key figures in the Thomas bribery scandal. But Durbin has refused to issue those subpoenas, for
unclear reasons.
Similarly, the Senate
Judiciary Committee could hold hearings on the insurrectionist flags flying
outside Alito’s home (yes, there was more than one). Alito claims his wife was
responsible for the flags, and he himself had nothing to do with them. The
committee could call Alito’s wife, Martha Ann, and ask her to explain why she
flew the flag and explain the justice’s involvement.
Alito claimed his wife
raised the flag in response to a dispute with neighbors; the committee could
summon the neighbors and ask them to explain the circumstances of the dispute.
They could call Alito cronies and investigate his ties to the far right. And
again, they have the lawful power to subpoena Alito himself, and to pursue a
contempt charge if he refuses to appear.
Why won’t Durbin act?
The advantages of using
the power of the Senate, including hearings and subpoenas, is pretty clear.
Alito and Thomas have shown themselves to be corrupt, biased, and arrogant.
Despite massive conflicts of interest, they refuse to recuse themselves, much less
resign. That undermines the integrity of the Court, undermines the rule of law,
and threatens the Constitution and democracy itself.
If there was ever a case
for oversight, this is it. And oversight can be effective. Focusing the media
on a huge scandal can lead to more reporting, more revelations, more public
pressure, and political gain. The threat of subpoenas, and the exposure of hearings,
can force justices to look for ways to defuse criticism — and recusing from
cases where they are compromised is a pretty obvious step.
Durbin’s sad tactic of
just begging the justices to do better has not worked. Why won’t he use the
tools he has? It’s unclear; his explanations (like arguing Thomas wouldn’t show
up anyway) don’t make a lot of sense. Maybe he’s conflict averse. Maybe he’s
leery of undermining the legitimacy of the court. Maybe he’s afraid of GOP
backlash.
Whatever his reasons,
though, the result is the same. The GOP uses its control of the gavel in the
House to boost their narratives and directly exert pressure in an effort to
subvert the justice system. Democrats, meanwhile, let their gavel in the Senate
sit there, refusing to use it to focus national attention, and decline to even
use it to protect the integrity of the judiciary or Constitution.
Democratic voters expect
their representatives in Congress to fight for them and against Trumpism. One
of the most frightening dangers the country currently faces is an unaccountable
Supreme Court majority that’s willing to shred precedent and the Constitution
in its pursuit of a far right agenda. Alito and Thomas have demonstrated
egregious corruption, bias, and disrespect for the Constitution and American
people. Democrats have a responsibility to do everything in their power to hold
the Court accountable.
Dick Durbin is failing
in that responsibility. Jim Jordan is horrible in just about every way, but
he’s willing to use the tools he’s got to push for the (evil) policy outcomes
he prefers. Democrats in Congress should be every bit as willing to use the resources
they have to defend democracy. If they aren’t, what are they even there for?
