Ready for Aggressive House Oversight? Not so Fast (or Furious).

January 8, 2019
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Having regained control of one but only one house of Congress, House Democrats no doubt recognize that their legislative agenda will never be enacted. So for the next two years, their most important agenda will not be writing laws, but but subjecting the Trump administration to aggressive oversight.

In her press conference the day after the midterm elections, Nancy Pelosi characterized the results as “a vote to restore the health of our democracy,” to “put an end to unchecked GOP control of Washington, restoring again the checks and balances envisioned by our Founders.” With “a constitutional responsibility to have oversight,” House Democrats intend to pursue a well-organized course of committee-led investigations. And incoming committee leaders like Adam Schiff echoed her plans.

In short, as Matthew Continetti put it, Democrats are eager to “fire their subpoena cannon at the White House.”

But what happens if they fire blanks?

That is the great irony of congressional oversight: Under current law, there is precious little that a house of Congress can do to put real force behind its oversight, because the administration’s own Justice Department, not Congress, is ultimately responsible for criminal prosecution of people who defy Congress’s oversight. And Democrats know this well, from recent history; if they’ve forgotten, they need only ask Eric Holder and Lois Lerner.

Attorney General Holder, you may recall, faced aggressive investigation into the Justice Department’s “Operation Fast and Furious,” in which federal officials declined to seize firearms held by criminal suspects, hoping to advance major investigations but ultimately leading to the commission of crimes with many of those guns, including perhaps the murder of U.S. Border Patrol Agent Brian Terry. The House Oversight Committee investigated the matter, and Holder’s Justice Department turned over many documents. But he refused to turn over many other documents, under assertions of executive privilege, leading the House hold him in contempt of Congress in June 2012  by an overwhelming vote 255-67, with even 17 Democrats voting in favor of the criminal contempt finding. But, to the surprise of precisely no one, the Holder Justice Department declined to prosecute Holder.

The pattern repeated a year later, when IRS official Lois Lerner refused to answer the House Oversight Committee’s questions about the IRS’s scandalous targeting of conservative nonprofit organizations. In a May 2013 hearing, Lerner testified in her own defense but, after delivering an opening statement, refused to answer any questions; instead, she repeatedly invoked her Fifth Amendment right against self-incrimination. The committee concluded that she had waived her Fifth Amendment right by voluntarily testifying with the opening statement, and upon her continued refusal to answer questions the House eventually voted to hold her in criminal contempt of Congress. But once again, to the surprise of no one, the Justice Department declined to prosecute their Obama administration colleague.

The Justice Department’s refusal to prosecute, at the behest of a Congress controlled by the opposite party, was not novel. Just a few years earlier, the Bush Justice Department declined to prosecute White House chief of staff Josh Bolten or former White House counsel Harriet Miers after the House held them in contempt in 2008; in fact, no executive branch official has been prosecuted for criminal contempt of an opposite-party house of Congress since President Reagan’s first term, when the Justice Department prosecuted an EPA official for lying to the House. Moreover, while Congress theoretically can file a “civil” (i.e., noncriminal) lawsuit to try to force production of documents or testimony without the Justice Department’s approval, this months- or even years-long process is so time-consuming as to be, effectively, illusory. As the Congressional Research Service recently observed, “relying on this mechanism to enforce a subpoena directed at an executive official may prove an inadequate means of protecting congressional prerogatives due to the time required to achieve a final, enforceable ruling in the case.” For all of these reasons, Congress’s sheer lack of power to punish contempt has spurred serious calls for reform.

But what was novel in the Obama years was the extent to which the administration treated the House’s contempt findings with, well, such contempt. Attorney General Holder was hardly chastened by Congress’s criminal-contempt citation; quite the contrary: Immediately upon the House’s bipartisan vote against him, the Justice Department issued a statement in which Holder denounced the House’s vote as “reckless charges,” “absurd conspiracy theories,” and “political theater . . . both a crass effort and a grave disservice to the American people.”

The same day, the White House denounced the House’s vote as “political theater rather than legitimate Congressional oversight.” Like Holder, the White House complained that the House’s investigation and vote was a distraction from more important policy priorities: “[U]nfortunately, a politically-motivated agenda prevailed and instead of engaging with the President in efforts to create jobs and grow the economy, today we saw the House of Representatives perform a transparently political stunt.” (Nancy Pelosi went even further, wildly denouncing the House’s oversight efforts as “a plan on the part of the Republicans” to punish “Eric Holder because he is supporting measures to overturn voter suppression initiatives in the States.”)

The House’s contempt citation did not hurt Holder’s political standing; if anything, it energized support for him. Just days after the House’s vote, Holder traveled to Texas to attend an NAACP convention, where he received a hero’s welcome; the NAACP passed an “emergency resolution expressing our strong support for the Attorney General” and calling on “Congress to stop these hurtful, distracting partisan political games and begin to address many of the very real problems facing our nation which require national leadership.” (Presidential candidate Mitt Romney addressed the convention a day later, and was repeatedly booed.)

This , then, is the likely the same political dynamic that will surround environment in which Democrats’ own oversight efforts will occur today. And it is hard to imagine the Democrats’ oversight efforts not following a similar path: To the extent that they grow dissatisfied with the Trump Administration’s production of documents, or with witnesses who refuse questions by invoking executive privilege (like Holder) or the Fifth Amendment (like Lerner), they are likely to find themselves frustrated with how weak their oversight powers are.

Again, the practical weakness of Congress’s oversight power is not new; what is new is the extent to which administrations see the defiance of oversight as a political benefit. Where contempt-of-Congress resolutions may once have been a black mark on administration officials’ records, they increasingly look like badges of honor, energizing the political base.

The real question, as with so many of today’s debates about constitutional institutions, is how far President Trump and his critics will go to amplify these trends. It is one thing for a house of Congress to hold one or two administration officials in contempt, and for the administration to defiantly brush aside Congress’s one or two contempt resolutions; it is quite another for Congress to turn more and more investigations into contempt resolutions—or for the president himself to turn more and more investigations into standoffs.

House Democrats seem eager to investigate as aggressively as possible. And President Trump himself is itching for a fight. In his own post-midterm-election press conference, the president’s heated argument with CNN’s Jim Acosta overshadowed the president’s preemptive rejection of any investigations of him by House Democrats. Complaining that Democrats have called for investigations “almost from the time I announced I was going to run,” he crowed that “they got nothing. Zero. You know why? Because there is nothing. But they can play that game, but we can play it better.” When a reporter later asked him to clarify whether he really meant to say any investigations would be treated as declarations of war, President Trump doubled down:

Q The real question is, you just said up here, and said from this podium, that it’s — are you offering a my-way-or-highway scenario to the Democrats? You’re saying . . . if they start investigating you, that you can play that game and investigate them.

THE PRESIDENT: Oh, yeah. Better than them.

Q Can you compartmentalize that —

THE PRESIDENT: And I think I know more — and I think I know more than they know.

Q Can you compartmentalize that and still continue to work with them for the benefit of the rest of the country? Or are you —

THE PRESIDENT: No.

Q Are all bets off?

THE PRESIDENT: No. If they do that, then it’s just — all it is, is a warlike posture.

As with so much of what he says, Trump  was surely exaggerating. Not every single congressional investigation will be treated as an act of war. But it is not hard to imagine many of them being treated as such, especially if the Democrats themselves, arriving in the new year with calls for impeachment, go overboard in pushing investigations—or, as the president himself increasingly likes to call it, “presidential harassment.”

Indeed, it is not hard to imagine Sarah Huckabee Sanders denouncing House contempt votes in exactly the same terms that Obama’s communications director denounced the House’s contempt vote for Holder in 2012, simply changing the relevant names: “At the beginning of this year, [Democrats] announced one of their top priorities was to investigate the Administration and to ensure that President [Trump] was a one-term President. Despite the major economic challenges facing the country, they talked openly about devoting taxpayer-funded, Congressional oversight resources to political purposes.

In the end, all of this illustrates a very fundamental truth about our constitutional structure. Thinking of Federalist 51’s description of constitutional checks-and-balances as a system in which “ambition must be made to counteract ambition,” we assume that the system works best when the legislative and executive branches hammer away at one another without restraint. But in fact, congressional oversight always has presumed self-restraint on both sides—on the part of Congress in the extent to which it levies demands, and on the part of the president and his administration in the extent to which they satisfy those demands. With the virtue of self-restraint in such short supply today, we may soon be entering a new era of oversight standoffs.  

And if congressional Democrats find the new normal to be a disappointment, then they can direct their complaints to Eric Holder. At least when he’s not in Iowa, feeling out a presidential run.

Adam White

Adam White is a research fellow at the Hoover Institution and director of George Mason University’s C. Boyden Gray Center for the Study of the Administrative State.