Do procedures hinder the fact-finding mission of the Oversight Committee when questioning witnesses?

2RWWGCB United States Attorney General Merrick Garland testifies before the US House Committee on the Judiciary hearing ?Oversight of the U.S. Department of Justice? in the Rayburn House Office Building in Washington, DC on Wednesday, September 20, 2023.Credit: Ron Sachs / CNP /MediaPunch

Op-ed by Elad Hakim | Photo: Alamy

Thursday’s House Judiciary Committee hearing on the “Oversight of the U.S. Department of Justice” with United States Attorney General Merrick Garland gave Republicans an opportunity to elicit powerful evidence showing the existence of a two-tiered justice system in America. Sadly, due to some of the procedures in place, it did not convincingly do so.

The procedures in place hinder the fact-finding mission

The reason for this failure is more procedural and less substantive in nature. In other words, there appears to be ample evidence supporting the conclusion that the law is being unequally and unfairly applied in the United States and weaponized against specific people or groups. Look no further than the vastly different ways President Donald Trump, Joe Biden, Hunter Biden, and various Jan. 6 defendants have been handled and treated.

The problem, however, is that the hearings in front of the various committees make it very difficult for committee members to sufficiently prove, establish, and verify what many Americans strongly suspect.

Five minutes is not enough time to question a witness

Pursuant to House Rule XI clause 2(j)(2)(A):

“(2)(A) Subject to subdivisions (B) and(C), each committee shall apply the five-minute rule during the questioning of witnesses in a hearing until such time as each member of the committee who so desires has had an opportunity to question each witness.”

According to this rule, each member only receives five minutes to question a witness, which is simply insufficient to establish or develop a line of questioning thoroughly. Rather, members are forced to rapidly ask as many questions as possible, many of which can be avoided, circumvented, or ignored by the witness, thereby forcing members to accept them or seek contempt later, if appropriate. 

In Garland’s case, Garland asserted that he did not interfere with various investigations and directed inquiries of that nature to then-U.S. Attorney for Delaware, David Weiss. Members could not force him to answer or to provide better answers on the spot and could not seriously cross examine Garland or undermine his credibility.

After all, the notion that Garland (the head lawyer) has stayed out of the various high-profile investigations handled by Weiss defies logic and comes across as unbelievable. For example, does he seriously expect Americans to believe that he has had no role at all in how the Hunter Biden investigation has been handled?  

In hindsight, Republicans should have subpoenaed Weiss to testify at the same time or immediately after Garland. Moreover, to overcome the five-minute hurdle, and if permitted, Republicans should have appointed a couple of attorneys (or members) to do most or all the questioning using the members’ time like Democrats did in the Trump impeachment hearings, or extended the time for several members to question a witness for longer than five minutes (House Rule XI clause 2(j)(2)(B)). This would have allowed for more organized questions and would have allowed the lawyers and members to develop their line of questions more thoroughly.  

Some witnesses refuse to answer or hide behind various privileges

Compounding the time-constraints problem, witnesses oftentimes refuse to answer questions or assert one or more privileges to justify their unwillingness to answer. In a traditional courtroom, a judge could compel a witness to answer or rule on one or more objections on the spot, or the parties and attorneys would seek a ruling on various objections asserted by a witness either before or after the witness testified.

In the case of a congressional hearing, there are no judges or immediate rulings on objections. There is no judge to contemporaneously decide the legality of a witness’s refusal to answer or claim of privilege. Rather, the committee must simply accept the non-answer and move on or pursue contempt against the witness at a later date and time.

Garland took advantage of this. On numerous occasions, he refused to answer questions allegedly relating, or due to, ongoing investigations, separation of powers, internal workings and discussions, or some other privilege(s).

As reported by Fox News, during the hearing, when Garland was asked about his involvement in the Hunter Biden investigation, he stated, “I do not intend to discuss internal Justice Department deliberations, whether or not I had them.”

When asked about the decision to let Hunter Biden’s tax charges lapse, Garland responded, “Mr. Weiss was the supervisor of the investigation at that time and at all times. He made the appropriate decisions. You’ll be able to ask him that question.” Garland also failed or refused to answer a member’s specific questions relating to the Biden family and allegations of corruption and federal informants on Jan. 6 (see video below).

Wray also provided non-answers or refused to answer various questions

While Garland directed the committee to Weiss, Weiss could very well refuse to answer or assert various privileges like Garland and other witnesses have previously done. One need only look at the testimony previously given by FBI Director Christopher Wray.

While Wray’s testimony was highly anticipated, the results were disappointing because he refused to answer many important questions and/or provided evasive answers.

For example, during the hearing, Wray was asked questions about a variety of issues involving the DOJ and FBI, including Jan. 6, suppression of speech, the Biden and Trump investigations, etc. In response, Wray relied on several predictable, canned responses, including an alleged lack of knowledge, an inability to answer due to ongoing investigations, and a promise to provide answers or briefings later.

More particularly, at the time, Wray would not provide a specific answer about whether Joe Biden was under investigation and did not answer questions about the investigations into President Donald Trump or Hunter Biden.

He would not comment when asked if Ray Epps would be arrested, refused to answer whether the FBI had agents, confidential human sources, or assets embedded with the crowd on Jan. 6, and rejected the notion that the FBI favored the Biden family. He also denied the FBI engaged in censorship with social media companies (despite a court order to the contrary), stating, “The FBI is not in the business of moderating content or causing any social media company to suppress or censor.”

While these hearings aim to obtain information, committee members are often stymied from obtaining the most crucial, critical information during questioning. As a result, the hearings oftentimes come across like a boxing match where Republicans throw the first punch and Democrats throw counterpunches.

Fortunately, these witnesses often testify under oath, allowing for contempt if or when the circumstances warrant. Unfortunately, however, the procedures in place make it difficult for members to sufficiently develop their line of questioning and allow witnesses too much leeway during questioning, both of which sometimes hinder the committee’s fact-finding mission.

Despite these concerns, the hearings still allow the committee and the American people to hear from the witnesses directly and obtain information from them, though oftentimes limited in scope.

Mr. Hakim is an attorney and columnist. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, American Thinker, and other online publications. He is also a regular guest on OANN’s Tipping Point, and has appeared on Newsmax, Steadfast and Loyal Podcast with Allen West, The Dave Weinbaum Show, and Real America’s Voice. The views expressed herein are the author’s own and do not constitute legal advice.   

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