One of the least known but most important powers of the Congress is the power to investigate. Congress has been using this power to exercise its constitutional responsibilities since 1792.
We have learned over the years that, like any tool, the power to investigate can be used to build up or to tear down. It is the responsibility of Members of Congress to distinguish when the power to investigate is being used to further the legislative functions of Congress and when it is being used to pursue narrow partisan agendas. When the records of the closed executive sessions of Senator Joseph McCarthy's subcommittee hearings were made public in 2003-4, fifty years after the hearings took place, Senators Susan Collins and Carl Levin wrote the following in their preface to the documents:
Senator McCarthy's zeal to uncover subversion and espionage led to disturbing excesses. His browbeating tactics destroyed careers of people who were not involved in the infiltration of our government. His freewheeling style caused both the Senate and the Subcommittee to revise the rules governing future investigations, and prompted the courts to act to protect the Constitutional rights of witnesses at Congressional hearings ... These hearings are a part of our national past that we can neither afford to forget nor permit to reoccur.
For the past year, the Committee on Oversight and Government Reform under the direction of Committee Chairman Darrell Issa has been pursing Attorney General Eric Holder over allegations concerning federal law enforcement's handling of the "Fast and Furious" probe of guns heading from the United States into Mexico and then being used by Mexican drug cartels.
Chairman Darrell Issa has accused the Attorney General of a "cover-up," of claiming he "obstructed" Congress, and has called the Attorney General, the nation's chief law enforcement officer, "a liar." All this despite the Department of Justice providing thousands of pages of relevant documents, to providing testimony and offering to provide a broad range of additional briefings and documents including documents and information that go beyond those listed in the Committee's subpoena.
All the Attorney General has requested in return was a good faith commitment on the part of the Chairman of the Committee to move toward resolving a potential conflict between the executive and legislative branches of our government over the rights and privileges of the respective branches of government especially at a time when partisan wrangling has brought the work of the Congress to a near stand-still.
Today, the President has claimed Executive Privilege over a very narrow group of documents from the Department of Justice in response to Chairman Issa's threat to hold the Attorney General in Contempt of Congress. This is the first time the President has claimed executive privilege in sharp contrast to recent previous Presidents who used the claim on numerous occasions in similar circumstances. Should the House continue to pursue this irresponsible action it is likely that it would lead to many years of judicial actions and would, of course, further poison the highly-charged partisan atmosphere leading up to the elections and critical decisions regarding the federal budget and any number of critical expiring federal programs.
In my judgment, this attempt to provoke an unnecessary and senseless confrontation between the branches of government at a time when the American people are demanding an end to hyper partisanship and meaningful action to put America back to work and address the many national and global problems confronting us is dangerous and reckless. It is time, and past time, to insert some sense of rationality into our work as a Congress and fulfill our obligations as representatives of the people.