OPINION: No One is Above the Law – Including Congress

 

House Speaker Nancy Pelosi and House Impeachment leader Adam Schiff (D-VA) spent November repeating a time-tested line: “No one is above the law.” This weekend, Michigan Congresswoman Debbie Dingell trumpeted it. Next week, Judiciary Committee Chairman Jerrold Nadler (D-NY) will. The line raises problems, little discussed.

 

First, the American people are not stupid. They know laws apply equally to all Americans. They did not need Mr. Schiff – in self-righteous, nauseating, hardly impartial hearings – repeating the mantra. Repeating it did little good, since polls show more Americans now disfavor impeachment than before his hearings. 

 

The bigger point: Hypocrisy is thicker in DC than snow in the Rockies. If any part of the US Government places itself “above the law,” it is Congress. Let’s be specific.  

 

Despite “due process” guarantees in our Constitution, House Democrats cheerfully ran roughshod over the rules of civil procedure, legal precedents, House rules and “Robert’s Rules” during Intelligence and Judiciary Committee hearings. To be clear: These were lawyers; they knew what they were doing.  

 

Points of order, clarifications, and honest questions from Republicans were hammered down; witnesses answering questions posed by Republicans were cut off. Material witnesses asked by Republicans, which could have ended impeachment, were disallowed. 

 

“Fair and impartial” requirements for grand jurors – as Mr. Schiff styled himself – were tossed out. Instead, dark Star Chamber justice returned. Guilt was found in private, witnesses selected that might support the finding, and a crass political case pressed. Truly, these members feel one thing: They are above the law.

 

Only, it gets worse. The line – “no one is above the law” – is worth a closer look. Here are facts Congress does not want you to know. Congress regularly puts itself “above the law.” Examples make a compelling case.

 

Recently, Americans learned their tax dollars were secretly used by Congress to settle sexual harassment claims against offending members. What? Yes, big settlements, all private. Is that what Americans get to do – use someone else’s money to settle claims for their bad acts? Did Ms. Pelosi and Mr. Schiff not know about that? Does that not qualify as “above the law?”

 

Then American tax dollars finance dozens of international junkets by members, luxury trips around the world – all conveniently returning at night, so no one sees the members’ largess on return. Full cost is never revealed, but trips use high-cost military aircraft, decked out with tailored seating, food, drinks and communications.  “Congressional Delegation” or “CODEL” trips hopscotch fancy hotels, enjoying well-stocked “control rooms,” adult beverages, a healthy “per diem” for each member – your tax dollars at work. Some trips run north of $100,000. Did someone not tell you about those? Without public accounting, is that not “above the law?”

 

How about health care? Congress not only has private medical care – from travel inoculations to flu shots – in the Capitol’s basement. They get special deals. As described in the Washington Examiner, September 2017, Congress enjoys “several types of special treatment unavailable to the public” on health care. They are eligible for a small-business exchange, despite federal and DC laws prohibiting it.

 

More, they are “the only large employer in the country that can make tax-free contributions toward its employees’ exchange-plan premiums,” in conflict with federal laws. And Congress is “the only group of federal workers who receive Federal Employee Health Benefit (FEHB) premium contributions for non-FEHB coverage.” Wouldn’t you say that’s placing oneself “above the law?”

 

Congress is “above the law” in even bigger ways.  Here are some. Despite all the hoopla about that “whistleblower” – who apparently consulted with House Democrats – Congress exempts themselves from that same “Whistleblower Protection Act in 1989.” The act aims to reduce “waste, mismanagement or lawbreaking” for taxpayers – only it does not apply to Congress. Isn’t that “above the law?”

 

Or consider the Occupational Health and Safety Act (OSHA), which empowers the US Labor Department to investigate health and safety violations – except in Congress. OSHA can even subpoena records from anyone, except Congress. Good luck in health and safety there.

 

Congress exempted itself from record keeping on workplace discrimination. Accordingly, the Age Discrimination in Employment Act, Americans with Disabilities Act and other laws force private employers and executive branch to “retain personnel records,” but not Congress.

 

Or how about this one – if a private-sector employer “retaliates” against an employee for reporting “health or safety hazards,” Laborer can sue the employer, no cost to the employee. Meantime, Congress forces an employee who wants to sue Congress – to foot the bill. That discourages suits, don’t you think? Clever – and above the law.  Congress also exempts itself from posting “notices on worker rights,” federally required for the private sector. And Congress need not comply with the No Fear Act, which trains executive branch employees on rights; Congress exempted itself.

 

In one offensive exemption, Congress escapes compliance with the Freedom of Information Act or FOIA. FOIA requests might be very helpful right now, but no. Congress is not compelled to be transparent under FOIA; they put themselves outside FOIA’s reach. The same is true for the Privacy Act; it bars release of private material by federal agencies, but not Congress. That helps Congress leak with greater impunity. 

 

The list is long – and deserves bright light, especially now. The House is hardly being transparent. The point is simple. The next time Speaker Pelosi, Chairman Schiff, Chairman Nadler and House Democrats wax on about transparency, using that “no one is above the law” line, someone should ask: Does that include Congress? 

 

Bottom line on the law: No institution in the US Government more unapologetically tramples “equality before the law” – than rule-busting, law-exempting, globetrotting congressional leaders. Not all subscribe to this dodge, but those in control for years – like Speaker Nancy Pelosi – know the secrets. It is time the American people did. As this Speaker is fond of saying, “no one is above the law.” That should include Congress. 

 

Robert Charles is a former assistant secretary of state for President George W. Bush, former naval intelligence officer and litigator. He served in the Reagan and Bush 41 White Houses, as congressional committee counsel for five years, and wrote “Eagles and Evergreens” (2018), about influence of WWII veterans on a small Maine town.