Nancy Pelosi’s Secret Police

We recently saw the first phase of the January 6 show trial. The congressional hearing, which the House Republican leadership has boycotted, always threatened to be a farce, prolonging and exaggerating a one-time event for partisan political gain. It lived down to expectations. 

The assembled U.S. Capitol Police jerked tears and repeated popular lies, including the now-disproven claim that officer Brian Sicknick was killed during the riots. One of the policemen exposed himself as highly ideological after his tweets praising Black Lives Matter violence surfaced soon after his testimony. All of the witnesses used highly charged language, referring to their fellow Americans as “terrorists” and the event as an attempted “coup.”  

In other words, the Capitol Police leadership supported the Democrats’ bleak view of the moment: that the country is beset by dangerous, violent, right-wing extremism, which in turn permits extreme measures to defend “Our Democracy.” With the frequent comparisons to 9/11, it is obvious that restoring the War on Terror’s domestic security apparatus is the goal. But this time, the “war” will be aimed at a much larger group of Americans, namely, those who supported President Trump and have doubts about the 2020 election.  

The most ominous development is the plan to deploy the Capitol Police in the nation’s interior, with the first field offices located in California and Florida.

Is This Legal?

This is a peculiar development. The United States has always rejected a national police force, preferring instead more accountable state and local police. The FBI and the enforcement arms of other federal agencies are much smaller than state and local police, and their jurisdiction is limited by their specific agency missions and federal law. 

The Capitol Police have very limited jurisdiction by statute. Even in Washington D.C., they’re only allowed to arrest for crimes within the “Capitol Building and Grounds.” In other words, they are highly paid security guards. 

Title 2, Section 1966 of U.S. Code, further provides that the “Capitol Police is authorized to protect, in any area of the United States, the person of any Member of Congress, officer of the Congress, as defined in section 4101(b) of this title, and any member of the immediate family of any such Member or officer, if the Capitol Police Board determines such protection to be necessary.” This protective power is extended by statute over the entire United States. 

Nonetheless, most congressmen have lax security. With 535 members spread across both houses, members of Congress are far closer to the people than the highly insulated president. It is not unusual to see them about town, perhaps with a local sheriff’s deputy in tow at public events. 

Some congressmen have, of course, been attacked. The congressional baseball game shooting of 2017 was undertaken by an angry left-winger. Gabby Giffords was shot in 2011 by a mentally deranged man at a public event. There have also been larger-scale attacks. While we were told repeatedly how the January 6 protest had no precedent, left-wing extremists bombed the Capitol building in 1983. More recently, a black nationalist killed a Capitol Police officer in a vehicle attack in April

While the Capitol Police have no nationwide arrest authority, they do have a right to work outside the Capitol grounds for “intelligence gathering,” according to 2 U.S.C. § 1978. The scope of this authority is entirely undefined by the statute and related regulations. 

In other words, these field offices are probably legal, but they’re also a bad idea. When the Left was worried about Trump’s use of Department of Homeland Security officers to protect federal buildings during last summer’s riots, the Atlantic noted, “One common tool for an interior ministry is a national police force. That can be a dangerous tool because an armed national police force at the disposal of the central government has a tendency to be misused. A repressive regime that is in danger, or simply faced with protests it finds troublesome, can use the national police to crack down, turning the force into an agency that protects the rulers, rather than one that defends the rule of law.”

As a general matter, whatever the Left has warned the Right might do—such as abuse of the FISA statute—they do when they have the power. 

An American KGB?

We do have some precedent for threat assessment and intelligence gathering with the Secret Service. They protect the president and other high profile executive branch members, and operate under the executive branch, like every other federal law enforcement agency.  

While they gather intelligence, especially before large public events, this is typically limited to specific threats from specific persons. Incidentally, they do not have any special statutory authority for general intelligence gathering, and the Secret Service’s authority in this area is highly limited by specific executive orders.

The Capitol Police’s domestic employment will be focused on this intelligence gathering mission for which they do have the backing of statutory authority. In their own words, “The Department is also in the process of opening Regional Field Offices in California and Florida with additional regions in the near future to investigate threats to Members of Congress.” A neutral person might wonder why the Capitol Police would undertake this work directly. The FBI is more experienced in investigations and already assists the Capitol Police in tracking down this type of information. 

One feature of the Capitol Police’s direct engagement appears to be secrecy. Unlike the FBI and DHS, the newly augmented Capitol Police is even more secretive and less accountable. It is not subject to presidential control. It is not limited by executive orders on intelligence gathering. It is not limited to the investigation of crimes. And it does not have to respond to FOIA. By way of example, the Capitol Police has concealed the identity of the officer who shot Ashli Babbitt. 

Moreover, oversight for the Capitol Police is exclusively within a single branch, the Congress. In a case of divided government—as we have now—that means that some future Republican president would have almost no ability to reign them in. 

Like the recent campaign against the filibuster, perhaps Nancy Pelosi will come to regret this innovation should the Democrats lose control of the House of Representatives. 

Secrecy, Unaccountability, and Partisanship are a Recipe for Abuse

For now, the plan is to empower a new, hyperpolitical, easily manipulated domestic security agency. Unlike the FBI, which is chiefly concerned for the FBI and its reputation (to a fault), the Capitol Police will have to answer to the Congress. In its search for the January 6 protesters, it will have a nearly unlimited portfolio to gather intelligence on domestic extremists, since the statutory limits on its intelligence gathering authority are completely vague, and there will be rewards for turning up dirt on random local party officials, activists, and the like. Nothing will stop them from keeping black lists of GOP activists and shaking them down with visits, surveillance, leaks to the media, and God knows what else. 

Senate Republicans, and Americans with any foresight, should be concerned. In 2016, we saw the evils of a partisan cabal within the FBI, which used opposition research paid for by Hillary Clinton to spy on Trump using the extraordinary powers granted under FISA, both before and after his victory. Unlike the run-amuck FBI, the Capital Police is now being purposely remade as a political police force, aimed not at real subversives and dangerous violent criminals, but at critics and opponents of the congressional members of the ruling class. In doing so, it promises to be more secretive than the Secret Service itself.

While those on the Right are often accused of fascism or extremism, it is the managerial Left that has consolidated the power of the media, corporate America, the scientific establishment, the military, and now an obscure federal agency to push its agenda and to punish those who refuse to recognize their authority. Democratic Party leaders have shown little internal capacity for restraint, but have instead worked themselves into a paranoid frenzy about subversives and coups, which further increases internal conflict and mutual suspicion. 

I suspect this seemingly modest change to the role of the Capitol Police will assume greater, more sinister significance in time.  

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About Christopher Roach

Christopher Roach is an adjunct fellow of the Center for American Greatness and an attorney in private practice based in Florida. He is a double graduate of the University of Chicago and has previously been published by The Federalist, Takimag, Chronicles, the Washington Legal Foundation, the Marine Corps Gazette, and the Orlando Sentinel. The views presented are solely his own.

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