WASHINGTON — Members of Congress and the Department of Justice are facing a reckoning over how to handle access to sensitive material related to the investigations into the classified documents found in possession of President Joe Biden, former president Donald Trump and former Vice President Mike Pence.
Members of the Senate Intelligence Committee, which is controlled by Democrats, are increasingly frustrated with the DOJ’s unwillingness to tell the committee the content of the documents and what risk they may pose to national security.
Committee members are weighing all options to get that information — including subpoenas, which would be a marked escalation in their efforts to get DOJ to comply, one source connected to the committee's work said.
Senators are arguing that they can't begin to look for legislative fixes to the classification system or prevent future documents from being mislaid without knowing more.
From the Justice Department, the committee is not getting “any additional guidance,” said Sen. Mark Warner, D-Va., the chair of the Senate Intelligence Committee. “(It’s) not much different than what I’ve been hearing over the ensuing, the preceding weeks.”
Warner’s Republican counterpart Sen. Marco Rubio, R-Fla., warned that their committee has a number of options to bring DOJ to the table.
“The entire intelligence community, including the FBI’s Counterintelligence Division, require us to authorize their spending, not just appropriate, but to authorize,” Rubio said. “But we’re not we’re not in threat mode yet.”
Department of Justice officials, however, say there is only so much they can do to comply with congressional demands.
The agency has a long-standing policy of withholding materials from an active investigation. DOJ officials have sent letters to both the House and Senate citing precedent that dates to Franklin Roosevelt's administration.
This case, however, presents complications that could test the relationship between the two branches of government, both sides acknowledge.
First, the case involves three officials at the highest level of the U.S. government: an incumbent president, and a former president and vice president.
Second, Biden and Trump are the front-runners for their party's 2024 presidential nominations. And Pence hasn't been shy about hinting he, too, could run. When overt politics are involved, DOJ tends to become more careful, especially as they face a barrage of criticism for being too political in recent years.
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“DOJ has got to be ever more mindful of the fact that whatever they give [Congress] will likely find its way into the public domain,” said Michael Zeldin, a former federal prosecutor who served on an independent counsel that investigated then-President Bill Clinton.
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Congress has a constitutional right to oversee the work of every federal agency — including the DOJ — and could try to use its power to insist that the agency complies. Senators, both Republican and Democrat, are already warning DOJ leadership that they will use whatever leverage they have to get what they want, arguing this breakdown in the care of classified documents presents an immediate national security risk that requires immediate reform.
“The Department of Justice sent us a ridiculous letter over the weekend arguing precedents that don’t apply and arguments that make no sense about why — we’re not even asking them for the documents,” Rubio said. “We’re asking for the intelligence community to share with us the classified information that we have access to but can’t identify that were improperly stored in the private homes and/or a think tank of at least two former government officials.”
DOJ, for their part, believes there is a path to getting Congress what it wants without violating the integrity of its investigation. DOJ officials have signaled a willingness to discuss as much as they can with House and Senate leaders and to provide them with the information they need to craft a policy prescription that can solve this problem going forward.
DOJ officials are working with the teams investigating the documents to determine what can be shared, according to a source familiar with Justice interactions with Congress.
Finding a compromise may avoid a tricky legal bind. Should Congress issue a subpoena, DOJ could sue to try to block it, leading to a potentially lengthy court battle that would run counter to lawmakers' hopes of fixing the document problem quickly.
“You essentially have the DOJ wanting to preserve the sanctity of its investigation and the Intelligence Committee wanting to preserve the sanctity of its mandate to protect national security,” Zeldin said. “But it doesn’t have to be binary. It seems to me that each can give some to satisfy the respective needs of each side.”
At this stage, though, both sides remain entrenched in a standoff that will require a definitive breakthrough before progress can be made, a breakthrough congressional leaders don’t seem willing to wait for.
“I don’t think this is going to drag on forever,” Rubio said.
“We’re not going to sit around here for weeks getting the Heisman from these guys," he added, using a slang expression for rejecting an overture.
