Checks and balances can only work if government officials are willing to use their authority to check abuses of power by others. Without that, our Constitution is an empty promise.
And without the will to stand up to such abuses, freedom and democracy also become empty promises. As James Madison wrote in Federalist 51, the Constitution was designed to ensure that “the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.”
In this design, he argued, “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place….you must first enable the government to control the governed; and in the next place oblige it to control itself.”
That is why it matters whether Congress is willing to do its job of controlling the Executive. This has never been truer than it is today.
Let’s face it, the presidency is now much more powerful than Congress. Powerful and, as a result, a danger to liberty.
That was true before Donald Trump returned to the Oval Office. It has only become more apparent since then. In response, congressional Republicans have been unwilling to use their authority to rein him in.
No news there. Still, it was shocking to see Attorney General Pam Bondi’s open contempt for Congress displayed in her appearance before the Senate Judiciary Committee on Tuesday, October 7.
It was also shocking to watch Republican Senators cheer her on as she denigrated their Democratic committee colleagues. Both were unprecedented.
Both suggest that our constitutional system is broken and that while Republicans may give lip service to that system, they are guilty of aiding and abetting in its overthrow. In criminal law, someone aids and abets the commission of a crime by another when they intend to assist or participate in that offense.
They can do so by encouraging or facilitating it.
Don’t get me wrong. I am not suggesting that Republicans on the Judiciary Committee are guilty of a crime in the ordinary sense.
They are, however, guilty of aiding and abetting Pam Bondi’s and Donald Trump’s crimes against the Constitution. Fidelity to that document requires that we call out their behavior in the strongest terms.
Let’s start with contempt of Congress. The law defines it as willfully refusing “ to answer any question pertinent to the question under inquiry".
During her appearance before the Judiciary Committee, Bondi refused to answer a long list of questions pertinent to its oversight inquiry. Among them, as California Democratic Senator Adam Schiff pointed out were questions about possible bribery involving Trump border czar Tom Homan, criminal investigations into the president’s political opponents initiated at the behest of the president himself, and the firing of career prosecutors in the Department of Justice.
Those are just a few of the questions the Attorney General batted aside. Committee Chair, Republican Senator Charles Grassley, sat quietly as she stonewalled his colleagues. And when he was not silent, he tried to derail the inquiry by shifting the focus to the behavior of the Biden Justice Department.
Grassley’s opening remarks foretold what was to come. He went on at length about "weaponization" of the Justice Department under the Biden Administration. He characterized investigations of then-former President Trump as “indefensible acts.”This was a political fishing expedition to get Trump at all costs."
Grassley was joined, as Politico reports, by Republican Senator Josh Hawley of Missouri, who “falsely claimed…that newly disclosed records revealed that the FBI ‘tapped’ the phones of eight sitting U.S. senators during special counsel Jack Smith’s investigation of President Donald Trump’s bid to subvert the 2020 election.”
Not surprisingly, “Attorney General Pam Bondi, during her Tuesday testimony before the Senate Judiciary Committee, did not correct Hawley’s characterization of the records.”
But Bondi’s performance was not limited to her refusal to answer questions or to correct erroneous information. She used her appearance to attack Democratic Senators directly, offering up accusations or allegations of misconduct that had nothing to do with the hearing.
She called out Illinois Senator Richard Durbin. “You are sitting here as law enforcement officers aren't being paid. They're out there working to protect you. I wish you love Chicago as much as you hate President Trump.”
In response to a question from California Senator Adan Schiff, Bondi replied, “If you worked for me, you would’ve been fired because you were censured by Congress for lying.”
She accused Connecticut Senator Richard Blumenthal of misrepresenting his military record. She claimed that Rhode Island Senator Sheldon Whitehouse had ties to “dark money” groups and backed legislation that would “subsidize [his] wife’s company.”
Such personal attacks would not have been allowed under Senate rules if they had been made on the Senate floor during a debate. But Chairman Grassley did nothing, and neither did any of his Republican colleagues.
James Madison would be rolling over in his grave to know that Senators of either party would condone such behavior by a member of the Executive Branch. He would have seen it as a crime against the constitutional order he worked so assiduously to construct.
But welcome to America’s new world. It is defined by a cabal that has set out to undermine checks and balances.
Pam Bondi and Republican Senators showed what that looks like. Americans should not shut their eyes and imagine that the constitutional system will survive their assault on it without a large and sustained public response.
Austin Sarat is the William Nelson Cromwell professor of jurisprudence and political science at Amherst College.
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