In battle with DOJ over classified docs, Senate turns to power of the purse

Senate Intelligence Committee members of both parties are threatening to withhold funding from the Justice Department amid bipartisan frustration over a failure to comply with oversight requests surrounding investigations into former presidents’ handling of classified records.

Senators for months have been asking to review files related to twin special counsel investigations into President Biden and former President Trump following the discovery of classified records in their homes.

“They're ruining their relationship with a committee that has always been very responsible and a very good working partner with them,” Sen. Marco Rubio (Fla.), the top Republican on the committee, told The Hill.

“There's no doubt that there's going to be consequences for it. There has to be. We have to protect our role on oversight. And the way you do that, unfortunately, is to leverage [the power] that appropriations and authorizations give us. We would prefer not to, but if we have to, we will.”

The discovery of classified documents at an office used by Biden after he left the vice presidency, followed by another few documents discovered at his Delaware home renewed interest in the extent former executives may have left office with classified records in tow, a detail all the more relevant given the ongoing probe into Trump.

The two cases, both under the investigation of a special counsel, differ in significant ways. Biden alerted the authorities to the discovery of initial records while Trump for months fought the return of both classified and other presidential records, keeping at least another 100 classified records after being subpoenaed.

While about 20 records are believed to have been found among Biden’s properties, in total authorities recovered some 300 classified records between various exchanges with Trump and his attorneys.

Vice President Mike Pence also notified the Justice Department about the discovery of classified records at his home, though a special counsel has not been appointed in the matter.

The Senate Intelligence Committee isn’t interested in the details of the investigation, but rather the potential national security fallout from the failure to keep the documents properly stored. They argue they need to weigh if the intelligence community has taken all necessary steps to remedy the damage.

News of the December discovery of documents in Biden’s former office space first broke in January, and the panel has been trying to review the records ever since, while interest in the Trump investigation has been percolating since his Florida home was searched last August.

Frustration over the delay is now reaching a fever pitch – even with Democrats.

Sen. Mark Warner (D-Va.), the chairman of the Intelligence panel, gave a forceful and lengthy rebuke of the Biden administration for their failure to do so.

“This is where the Biden administration gets an absolute failing grade. Their position is outrageous,” Warner said last week during an appearance on MSNBC's Andrea Mitchell Reports. 

“We have a constitutional responsibility to see those documents – the classified ones – make a judgment whether the intelligence community did appropriate protection, and if those documents were to fall into the wrong hands, what kind of mitigation we could take,” he added. 

“And I am done with the lack of willingness for the administration to address this.”

The Gang of Eight, comprised of the top four leaders in Congress and on the Senate and House Intelligence committees, had a briefing about the documents in February, one that Warner and Rubio said at the time “left much to be desired.” 

While lawmakers wait for the requested information, they are beginning to hash out their options for financial retribution.

“We have the ability to be able to fence off certain amounts [so] that you don't actually receive that until you're actually operating in full faith,” Sen. James Lankford (R-Okla.) told The Hill last week.

“Obviously, we're trying to be able to reach into the executive office and to be able to say we got to be able to block some of this funding off. The other way to be able to do it is actually work through the next year's appropriations and say we're going to cut off some of that funding as well. Clearly, they don't need as much money if they're not actually doing the job.”

Rubio said in some areas the process is already underway.

“All these agencies are constantly submitting to redistribute funds that have been appropriated that they ask us to sign off on. So some steps have already begun. Some of it's already happening, unfortunately, and so hopefully they will change their mind,” he said.

Lawmakers say they’re frustrated with the back-and-forth finger pointing between the Justice Department and the Office of the Director of National Intelligence (ODNI).

“We've reached the point now where nobody wants to own up to the decision. You know, the DNI says it’s the attorney general. The attorney general said publicly the other day that it's not him, it’s the DNI,” Rubio said.

Attorney General Merrick Garland last week told members of the Senate Appropriations Committee that the two parties are close to hashing out an agreement.

“I would say we are working well with them. We believe that there is an accommodation possible. We've been trying to work towards accommodation. We do have to balance the concerns of ongoing criminal investigations. But we also well recognize the oversight responsibilities and obligations of the committee. And we intend to work out an arrangement that will accommodate those interests,” he said.

“We've been making quite a bit of progress recently, and we expect to make further progress.”

Lawmakers on the panel simply don’t get the hold up, noting they had information on the highly sensitive Mueller investigation into Trump much sooner.

“We are the last functioning bipartisan committee, I would argue, in the Congress these days. We know how to handle these kinds of documents,” Warner said.

“The outrageous thing is we got total access to documents – the raw intelligence – when our committee did the Russia investigation under Donald Trump. And the fact that this administration is not even meeting the kind of transparency standards of Donald Trump…this will not and cannot stand.”

Lankford sees hypocrisy from a president who was responsible for overseeing the Justice Department when he was a lawmaker.

“He is now doing this to the very body that he demanded had transparency when he was a senator,” Lanford said.

“The strange thing is a Senator Biden would have fought just as hard on any other president that would have cut off a Senator Biden.”