Andrew Harnik/AP Photo Law And Order Congress Should Stop Messing With Rod Rosenstein Oversight? Please. The real aim of the attacks on the Department of Justice is perfectly clear.

John McKay is a partner in Davis Wright Tremaine and a former U.S. attorney in Washington. Joyce Vance is a distinguished visiting lecturer in law at the University of Alabama School of Law and a former U.S. attorney in Alabama. Norman Eisen is the chairman of Citizens for Responsibility and Ethics in Washington.

As former United States attorneys or senior government lawyers, we have a century of collective experience with every aspect of federal criminal law. Our work under presidents of both parties has taught us that prosecutorial independence and investigative confidentiality are key principles without which our justice system cannot function. We are concerned that congressional attacks on Deputy Attorney General Rod Rosenstein are undermining these critical values—and jeopardizing the rule of law.

The June 28 hearing before the House Judiciary Committee saw the escalation of tensions in a months-long tug of war between Congress and the Department of Justice over document requests for sensitive information related to the Russia investigation and Clinton email probe. DOJ has taken the unprecedented step of providing more than 800,000 documents since the requests first began but has pushed back on providing information when doing so might interfere with an ongoing criminal investigation or could pose a grave risk of harm to a confidential source if exposed. Rosenstein has reportedly “taken unusual steps to try to meet the demands, adding employees to review the requested files and sharing unredacted documents normally off limits to Congress,” according to the New York Times. Rosenstein also maintains that his department continues to work diligently to comply with congressional demands.


Nevertheless, the majority party in the House supported a resolution demanding that Rosenstein comply with all of its requests by July 6; if he refused, Rosenstein risked facing contempt or even impeachment proceedings. DOJ responded to the resolution on Friday, claiming it had “substantially complied” with the requests and that any remaining document productions would be completed quickly. The jury is out on whether this will end the dispute or the demands—and tensions—will expand again.

We hope this will resolve the matter. In our view, the pressure on DOJ has gone too far and Rosenstein has been right to stand up for his department’s legitimate concerns about confidentiality. Reluctance to diclose confidential information is consistent with prosecutors’ longstanding practice of declining to comment on an investigation while still in process. This is not merely a practice that should be continued because “we’ve always done it this way.” It protects the integrity of the investigation and is required of prosecutors by the U.S. Attorneys’ Manual, which governs their conduct. The manual provides that prosecutors should not reveal information about a criminal investigation unless “the community needs to be reassured that the appropriate law enforcement agency is investigating a matter” or “where release of information is necessary to protect the public safety.” Neither of those conditions apply in this case.

More broadly, the problem is that disclosing the inner workings of a criminal investigation risks exposing it to improper external influences. The consequences of exposure can doom an ongoing investigation. Confidentiality protects against witness tampering, intimidation or harm; preserves the ability to collect evidence and to safeguard against its destruction; provides safety for confidential sources who might not otherwise come forward; shields subjects or targets of investigations from being publicly accused where there is insufficient evidence to support an indictment; and preserves certain rights of possible defendants. There are additional considerations, including national security interests and laws governing confidentiality, such as for example grand jury secrecy.

For these and other reasons, prosecutors do not share the evidence they have collected while an investigation is ongoing. This is particularly true when the body requesting a review of that evidence is a political one. The political process that (quite properly) animates the decisions of lawmakers is not an appropriate consideration for prosecutors, who must explicitly set aside political factors, such as the popular opinion of a particular defendant, for which politicians might want to account.

We of course understand the motivation of the members of the House in their desire to preserve checks and balances through reasonable oversight. All of us have been subject to congressional confirmation and oversight. But with this latest production, Rosenstein and DOJ have more than satisfied those considerations. Equal in import to the need for checks and balances in our democracy is a criminal justice system that applies the laws faithfully, based on the facts alone, and free of political influence. Prosecutors must not be seen as puppets of Congress—or any other branch of government—but as independent actors shielded from political influence and free to make informed decisions based on the law and the facts. Safeguards must be preserved, particularly when an investigation is ongoing. Allowing the legislative branch to challenge the Justice Department’s own decision-making authority while those decisions are actively being made risks corrupting our criminal justice system by exposing it to political influence.

To punish Rosenstein for complying with the long-held DOJ practice while he is making good-faith efforts to otherwise comply with congressional subpoenas would establish a destructive precedent. We cannot help but wonder whether certain House members’ expressed threats of contempt in the context of their oversight function are pretextual in that they do not seek to evaluate DOJ practices—but to influence the department's active decision-making function.

This is particularly a point of concern where Rosenstein and top FBI officials have reportedly “come to suspect that some lawmakers were using their oversight authority to gain intelligence about [the Russia] investigation so that it could be shared with the White House,” according to the Times. While the special counsel’s investigation continues, Rosenstein must be permitted to preserve the integrity of information critical to allowing the active investigation to run its course.

In an unprecedented situation, Rosenstein has attempted to give Congress access to information to allay concerns of impropriety. But there is no rationale for, and plenty of damage to be done if, the legislative branch’s peek over the shoulder into the work of prosecutors in the executive branch continues to expand. If members of Congress truly seek access to the information to be a watchdog over the Department of Justice, that can be accomplished once any ongoing investigation has concluded—and without an intrusion on departmental policies designed to protect and preserve the integrity of criminal investigations.