More Schumer Obstruction

COMMENTARY Courts

More Schumer Obstruction

Oct 5th, 2018 2 min read
COMMENTARY BY
Thomas Jipping

Deputy Director, Center for Legal and Judicial Studies

Thomas is the Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies and a Senior Legal Fellow.

Key Takeaways

Schumer is demanding that the FBI brief the entire Senate “on the results of the investigation before a final floor vote.”

The FBI does not brief senators regarding background investigations, period.

The demand for an FBI briefing that he knows won’t occur, therefore, looks a lot like obstruction.

Usingenglish.com defines the idiomatic expression “little ol’ me” as “a way of referring to yourself that is meant to be modest or self-deprecatory, though often fake.” That’s how Senate minority leader Chuck Schumer (D., N.Y.) comes across when he feigns innocence about confirmation obstruction.

On October 2, for example, he denied that Democrats were trying to delay or obstruct the confirmation process for Supreme Court nominee Brett Kavanaugh. You can almost hear him shrug his shoulders and throw up his hands when he said that Democrats are powerless to do so since they are in the minority. Obstruct? Little ol’ powerless me?

That doesn’t sound like the Schumer who vowed back on July 9 to oppose the Kavanaugh nomination with “everything I have.” Or like Democrats who had already announced their opposition to Kavanaugh nonetheless demanding more time to study his record. Or like Democrats who demanded a separate hearing to consider Dr. Christine Ford’s sexual-assault allegation against Kavanaugh and, after they had that hearing, demanding an extended, open-ended FBI investigation.

And now, Schumer is demanding that the FBI brief the entire Senate “on the results of the investigation before a final floor vote.” But wait, you might say, that doesn’t sound unreasonable. It doesn’t until you find out what Schumer does not want you to know.

In September 2009, at the beginning of the Obama administration, the White House and Judiciary Committee — both controlled by Democrats — established rules for how to conduct FBI background checks on nominees. They formalized those rules in a document titled “Memorandum of Understanding between the Senate Judiciary Committee and the Counsel to the President Regarding FBI Background Investigation Reports on Nominees.” This memo is still operative today.

This MOU spelled out which nominees are covered and made clear that the FBI provides the results of its background investigations to the Judiciary Committee. In the case of Supreme Court nominations, any senator may receive a verbal briefing from a “designated staff member” who has the appropriate security clearance.

One more thing. During the first hearing, a certain senator (referred to here only as “Spartacus”) threatened to disclose documents that had been labeled “Committee Confidential.” He did so, he said, because this designation resulted from the committee chairman’s unilateral and arbitrary decision rather than by any rule or other source of authority. Spartacus did not make that disclosure when it was revealed that the committee had already made those documents public by removing the designation.

Well, this MOU reminds everyone that FBI background reports “constitute confidential business of the Senate Committee on the Judiciary and unauthorized disclosure of information in the reports is cause for the imposition of punishment under RULE XXIX (5) of the Standing Rules of the Senate.” That rule provides for expulsion from the Senate if the leaker is a senator.

In other words, the FBI does not brief senators regarding background investigations, period. Schumer certainly knows this because he served on the Judiciary Committee in 2009 when these rules were established. The demand for an FBI briefing that he knows won’t occur, therefore, looks a lot like obstruction.

Yes, little ol’ you.

This piece originally appeared in the National Review on 10/2/18