A recent Lawfare article noted:
Fundamentally, once you break the rule that Cabinet Officers don’t have to sit for questioning by Congress there’s no particular limit to that occurring. If you say that it only applies if there’s a crime then Congress can always conjure up a crime, with or without evidence to back it. And if criminal activity is too low a hurdle to then, really, what more can you use to limit improper questioning of cabinet members?
That said, criminality is probably the standard that should apply. By the Constitution, Congress should have the ability to investigate and impeach the President for high crimes and misdemeanors. If the President and everyone he talks to everyday are immune from investigation then…well, that’s pretty much carte blanche to get up to any high crime that you can conceive of.
But outside of criminality, the President does have the right to run the Executive branch, freely. If he’s having to let Congress hang over his shoulder at every moment, they’ll start writing so many laws that - in practical effect - it will be rule by committee, over the will of the President. That would contradict the separation of powers given in the Constitution.
Overall, we’re left with a situation where Congress should have the right to investigate if there are allegations of criminal impropriety. But it’s safe to say that Congress is not an impartial party in deciding whether they have reasonable evidence in that matter, but nor is the Department of Justice impartial on the question, either.
The answer that I would suggest is the same answer that we use in the judicial system, when there are concerns about politicization of investigations and corruption - you get together a judge and a grand jury to review the matter.
Fundamentally, all that is needed for the Executive Branch to give up Mark Meadows and to allow investigations to proceed that would protect election security in the future, is a mechanism that protects the Executive Branch from overly-intrusive Congressional interventionism. And, likewise, all that it takes for the House to receive Mark Meadows and protect elections is for the Executive Branch to remove the non-prosecution rule on top Executive officials. Ultimately, we’ve got two groups who have the same goals but who can’t achieve what they want to achieve because they haven’t found the mechanism to allow them to perform a safe trade. I believe that this achieves that purpose.
A grand jury has no skin in the game. The rules would almost certainly allow the cabinet member (or former cabinet member) to have their own representation if they do not trust the current DOJ to work on their behalf. Congress would, likewise, have its own representation to make their argument. Everyone gets to have a say, before the grand jury. This isn’t like a criminal grand jury, looking to indict, with a prosecutor free to give them any information that he wants and almost nothing to countermand his view. It’s a fair game for both sides.
The ratio of yeas to nays that is needed to decide the matter is something that will be decided in advance. If the Executive Branch feels like it needs to be unanimous, they can refuse any proposal for such a system until Congress agrees to make it require a unanimous vote on the part of the jury. (That said, I don’t believe that unanimity is a reasonable standard. This isn’t an inquest for a criminal conviction, it’s a review of whether Congress has reasonable evidence of criminal conduct sufficient to ask someone to testify.)
If the Federal government uses grand juries to solve the issue of politicization and corrupt use of office, for our everyday matters, and all three branches of government have accepted this practice and supported it in various ways then none of them have any argument to make that it’s not a reasonable mechanism for this use case as well.
(That all said, there is also an option of agreeing on some sort of arbitrator - if a grand jury is too much of a hassle to put together. But then you need to come up with a way for all parties to agree to the same arbitrator, and that seems more difficult to come to an agreement on before the mid-terms.)
In terms of enacting this arrangement, I would first say that I don’t believe that it’s absolutely necessary for this to be law. So far as the Constitution and the Supreme Court seem, generally, to be concerned it’s up to Congress and the White House, through their own negotiations and levers, to determine how to interface with one another. Both sides can, simply, make the agreement to go through this process and - so long as both sides are satisfied that the other is complying - then that system would be completely kosher without any formal law to support it. One might even suggest starting that way, to get a test run through before creating any hard rules around it.
That said, I’m not sure how you create the grand jury nor get a judge or someone to sit over the process without creating a law but, possibly, you could wing it by using the “subpoena powers” of Congress to force random people to come serve “jury duty” and ask for a judge to volunteer some time, of his own free will. (If no judges are willing to participate, that could be treated as sufficient evidence that Congress has insufficient basis to move forward.)
But, certainly, passing legislation to create this scheme would be more reasonable. It would also show that Biden was keen to “clean up” Washington. The White House has never willingly allowed criminal investigation of itself. If you claim that your predecessor was a crook but you never make any moves to support that then that casts suspicion on that claim. Either he wasn’t a crook or you want to also have access to all the cookie jars that he figured out how to steal from, first.