Barr has cited the Ethics in Government Act (28 U.S. Code § 591 et seq.) to justify his own practice. This is significant. Here’s why.
Readers of this feed may recall that I posted (on April 16) a thread entitled “Are there statutory mandates governing the office of special counsel?” 1/16
In that posting I argued at length that provisions of the Ethics in Government Act (28 U.S. Code § 591 et seq.) covered important matters concerning the independent counsel that are not covered by DOJ regs 28 CFR § 600.1 et seq.,
28 U.S. Code § 591 — Applicability of provisions of this chapterhttps://bit.ly/2veBEsl
2/16
and that a standard rule of statutory interpretation entails that important provisions of the statute must still be good law, even though the statute had “ceased to be effective” in 1999. (It’s still in the code, though.)
28 U.S. Code § 599 — Termination of effect of chapterhttps://bit.ly/2Pk8h0Y
3/16
I also pointed out that it was imperative for Barr to give a detailed accounting of the rules, regulations, and department guidelines he has frequently invoked in support of his decisions. 4/16
With that as background, I draw your attention to the following remarkable passage in Barr’s prepared remarks for his press conference on Thursday:
5/16
Astonishingly, no one in Congress (or anywhere else) appears to have noticed that Barr has justified a practice of his own by invoking the “practice followed under the Ethics in Government Act” [28 US Code 591 et seq.] 6/16
This corroborates my theory that the Department regards important provisions of the Act as still good law, and that it has incorporated these in some fashion into the Department’s regs and guidelines. 7/16
If someone following this feed has better contacts with the House Judiciary Committee than I do (I have none), please contact that committee and point out the importance of Barr’s having cited the Ethics in Government Act to justify his own practice. 8/16
The issue is extremely important, because, as I pointed out in my posting on April 16, §595(c) shows that the independent counsel (aka special counsel) is primarily responsible to the House of Representatives 9/16
and not to the Attorney General concerning any “substantial and credible information … that may constitute grounds for impeachment.”
Here is the passage: 10/16
So Nadler needs to do two things: 11/16
(1) Call Barr and ask him whether and to what extent at least some provisions of 28 U.S. Code § 591 et seq. are regarded by his Department as valid law, and whether or to what extent the statute has been incorporated into DOJ rules and guidelines. 12/16
(2) Call the House Office of Legislative Counsel, which decides what is left in the code and what is omitted, and the titles and final wording of statutes 13/16 bit.ly/2vgtv6F
and request a report from the Office on what it means that 28 U.S. Code § 59 et seq. Is still a part of the code, despite its being “terminated in its effect.” 14/16
To be clear, the question is this: How is a law that has been left on the books with “terminated effect” different from a law that has actually been REPEALED by Congressional action? 15/16
Repealed laws, which are deleted from the code altogether, and laws that have been struck down by the courts but are still in the code, are completely null and void. But is that true of laws still in the code whose “effect has been terminated”?
Apparently not. 16/16
