Rep. Jim Jordan (R-Ohio) gives an interview at the U.S. Capitol Jan. 9, 2023. Jordan chairs the House Select Subcommittee on the Weaponization of the Federal Government.(Francis Chung/POLITICO via AP Images)

The creation of a House Select Subcommittee on the Weaponization of the Federal Government portends an all-too-predictable and largely unproductive cycle of interbranch friction. (The name itself betrays that the panel has already concluded that the executive branch misused its resources.) It will start with overheated demands for information. The committee’s chair, Representative Jim Jordan, has said the wide-ranging probe would include the FBI raid on Mar-a-Lago for documents that Donald Trump failed to return to federal authorities, the Department of Homeland Security probe of disinformation on social media, and the origins of investigations by the FBI and other federal agencies into contacts between the Russian Federation and the Trump campaign in 2016. The Biden administration will comply with some requests while resisting others. Republicans will denounce recalcitrance as a coverup. Fox News, for its part, will condemn any lack of transparency as Democratic hypocrisy. Democrats, in turn, will remind Americans that Jordan refused to speak to the January 6 Committee.

This would not be the first time that politically motivated congressional investigations have sought to tarnish the records of federal law enforcement and counterintelligence agencies. GOP leaders have portrayed their new committee as if it were an honorable successor to the Church Committee in the U.S. Senate, which revealed abusive investigations by the FBI, CIA, and NSA of civil rights and antiwar activists. In its motivation and tendentiousness, however, Jordan’s committee seems more to resemble Senator Joseph McCarthy’s infamous investigations in the early 1950s or the earlier pernicious activities of the House Un-American Activities Committee.

The new committee’s authorization to examine “ongoing criminal investigations” provokes concern from the get-go.

Protecting open investigations has been the responsibility of both Democratic and Republican administrations. Charles Cooper, a prominent conservative attorney, made it clear in 1986 when he was the head of the Justice Department’s Office of Legal Counsel during the Ronald Reagan administration that open investigations need to be safeguarded. He wrote: “This policy with respect to Executive Branch investigations was first expressed by President Washington and has been reaffirmed by or on behalf of most of our Presidents, including Presidents Jefferson, Jackson, Lincoln, Theodore Roosevelt, Franklin Roosevelt, and Eisenhower. No President, to our knowledge, has departed from this position affirming the confidentiality and privileged nature of open law enforcement files.”

An earlier Reagan-era OLC opinion cataloged half a dozen distinct reasons for the Justice Department’s protectiveness. It asserted that the deliberations among lawyers and investigators might be less “effective and candid” if confidentiality cannot be preserved. Sharing open files could result in leaks of information that the government has amassed, along with damaging revelations of investigative sources and methods. This latter point would be of special concern should the safety of confidential informants be involved, and information sharing might chill other whistleblowers from coming forward.

The Justice Department has also worried about the privacy of “innocent individuals who may be identified in law enforcement files but who may not be guilty of any violation of law.” And Congress might well try to exert political influence over the course of an investigation if the Justice Department were to share with Congress open law enforcement files. Whether or not Congress applied such pressure successfully, prosecutors would be justly apprehensive that “the perception of the integrity, impartiality and fairness of the law enforcement process as a whole will be damaged if sensitive material is distributed beyond those persons necessarily involved in the investigation and prosecution process.”

Lawyers for later administrations embraced the same reasoning, including the Clinton administration’s Justice Department and White House lawyers for the George W. Bush administration.

The presumption in favor of shielding ongoing investigations can sometimes be overcome. In 1982, when Congress was investigating potentially criminal misconduct at the EPA, Attorney General William French Smith assured an aggressive oversight chairman, Representative John Dingell: “These principles [supporting confidentiality] will not be employed to shield documents which contain evidence of criminal or unethical conduct from proper review.” And, indeed, as Congress developed evidence of Superfund mismanagement under Rita Lavelle, then chief of the EPA’s toxic waste program, the White House released all the investigative files to which Dingell had demanded access.

For now, however, Fox News talking points and Freedom Caucus fulminations do not go further than having what The Washington Post’s Ruth Marcus has generously called a “tangential basis in fact.” Unless Jordan’s committee can do better, the Justice Department ought to follow the precedents set by earlier administrations and refuse to share open law enforcement files with an overreaching and political probe.

Peter M. Shane

Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at Ohio State University and a Distinguished Scholar in Residence at the New York University School of Law. His forthcoming book is Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency. Follow Peter on Twitter at @petermshane