Democrats' Coming Oversight Agenda: Subpoenas But Little Bipartisanship?

It took only hours after electoral clarity that Democrats will retake the House in January for the clash to unfold over the nature of legislative oversight of the executive branch.

Will it be “presidential harassment,” as Senate Majority Leader Mitch McConnell, R-Ky., called it at a Wednesday morning press conference? Or will the new majority “conduct credible, independent, robust and responsible oversight of the Trump administration,” as Rep. Elijah Cummings, D-Md., the top Democrat on the House Oversight and Government Reform Committee, said in an early-morning statement?

Though bipartisanship on the oversight panels has reared its head in recent decades—not long ago, the custom was to issue subpoenas only with both parties’ consent—this year’s post-election comments tracked by Government Executive suggest such power-sharing may not be in the cards.

Democrats are displaying a desire to act aggressively on pent-up demand for unblocking White House and agency information in which House Republicans showed little curiosity.

“I have seen oversight work well, and I have seen it work poorly,” Cummings said. “For the past two years, it has been virtually nonexistent.”

Not to be outdone, incoming Judiciary Committee Chairman Rep. Jerrold Nadler, D-N.Y., said on Wednesday:  “Americans are tired of watching a Republican Congress fail in its constitutional duty to hold the administration accountable for policies that rip children from the arms of their parents, that allow domestic abusers and white supremacists to get their hands on deadly firearms without a full background check, that allow voters to be intimidated and their voices suppressed, that enable pervasive corruption to influence decision making at the highest levels of government, and that undermine the rule of law and interfere with the independence of our justice system.”

At play are issues as lofty as the Robert Mueller investigation of Russian meddling and the possible release of President Trump’s long-secret tax returns, as well as debates over border policy and the Affordable Care Act. There may also be narrower probes into utilitarian issues such as the release of documents on Trump’s Washington hotel profits or his handling of the re-location plan for FBI headquarters.

But Democrats could overreach and fail to match their oversight duties with legislation, said former Rep. Tom Davis, R-Va., who once chaired the Oversight and Government Reform panel. “If they focus on investigations and impeachment, you can knock off getting any legislation of substance. It all becomes a two-year exhibition game getting ready for the [2020] presidential race.”

President Trump on Wednesday said at a post-election press conference that Democratic probes would mean the government “comes to a halt.”

Long List of Potential Probes

Cummings interpreted Tuesday’s election as a message that voters want to “bring integrity back to government.” So he invited Republican colleagues to join in his “plan to shine a light on waste, fraud and abuse in the Trump administration. I want to probe senior administration officials across the government who have abused their positions of power and wasted taxpayer money,” he said.

The Oversight and Government Reform Committee, which has the broadest jurisdiction for monitoring agency performance, under Democrats would proceed on topics divided into “two lanes,” his staff told Government Executive. The first is “making sure government is working for the people.” These probes would tackle security clearance reform; Trump’s alleged financial conflicts of interest; ethics troubles of senior officials such as departed Environmental Protection Agency chief Scott Pruitt; Trump’s “politically motivated attacks on government watchdogs, ethics experts, law enforcement officials, and career government employees;” and the president’s child separation immigration enforcement policies.

The second lane involves efforts to “improve the day-to-day lives of all Americans.” Those probes would address the high cost of prescription drugs, health care affordability, the opioid epidemic, voting rights, putting the Postal Service on a sound financial footing and the administration’s handling of the 2020 census.

Many of those issues were addressed in 64 outstanding subpoena requests Cummings’ staff highlighted. Because he was the ranking member, they were sent as letters to the chairman, the only procedural option Democrats had to try to force a subpoena vote, a spokeswoman said.  These same requests to agencies could go out as chairman letters in January, though not likely on Day 1.

Cummings and other Democratic leaders continued raising new issues right up to Election Day eve. On Nov. 2, he joined with Nadler; House Armed Services ranking member Adam Smith, D-Wash.; Homeland Security ranking member Bennie Thompson, D-Miss.; and 104 other Democrats in a letter calling on Defense Secretary Jim Mattis to explain Trump’s deployment of 5,000 new U.S. troops to help Customs and Border Protection guard the U.S. southern border.

And Rep. Maxine Waters, D-Calif., incoming chairman of the House Financial Services Committee, last month wrote to her chairman asking him to investigate allegations raised by Seth Frotman, the Consumer Financial Protection Bureau’s former assistant director and student loan ombudsman, who resigned in protest of Trump policies.

Republicans, according to press leaks, have been wary enough of the Democrats’ plans that back in August they compiled their own list of more than 100 possible information requests from agencies. Their list added such topics as Trump’s payment to porn star Stormy Daniels, his firing of FBI Director James Comey, his proposed transgender ban for the military, White House personal email use and Treasury Secretary Steven Mnuchin’s business dealings.

Bipartisan Subpoenas?

Under the Clinton and George W. Bush presidencies, the House Oversight panel was led by Rep. Henry Waxman, D-Calif., and Davis. They tackled some huge issues including the tobacco industry’s denial of smoking’s dangers, and the 2008 collapse of Wall Street, which helped give Waxman a reputation as a tough overseer.

Davis recalls the two tackling contracting abuses in the Iraq war, the response to 2005 Hurricane Katrina and the Jack Abramoff lobbying scandal, to the dismay of the Bush administration. “I felt it was an institutional responsibility, and the House is an independent body,” Davis said. But it’s natural politically for each party to want to protect its “quarterback,” or the president, Davis added. Over the past 40 years, “when oversight responsibility is in the hands of the opposition party, they can over investigate; when the president’s party is in power, they tend to under-investigate.”

Modern efforts at bipartisan oversight were still visible in 2014, when Waxman retired, and the aggressive panel chairman Rep. Darrell Issa, R-Calif., wrote of him: “While I didn’t always agree with Chairman Waxman on matters of both policy and oversight tactics, his tenure helming the committee set important precedents and innovated new investigative tools such as the use of subpoenas for closed-door depositions. A number issues he doggedly began to follow during his two years as chairman, such as the use of the White House Office of Political Affairs to advance partisan political agendas with taxpayer funds, the over-classification and pseudo-classification of information to hide embarrassing government blunders and the problematic use of non-official e-mail accounts for official government business remain on the committee’s agenda today.”

Some of that comity eroded in 2015, when Republicans ended the tradition of bipartisan approval of subpoenas of Obama administration officials, which drew a rebuke from Waxman in an op-ed.

More recently, however, Waxman—now a lobbyist for nonprofit organizations—warned in an interview with The Washington Post that Democrats under Trump “have to be selective on what they’re going to use their oversight and investigative powers to look at. They’re going to have to be moderate in their approach so that they don’t look like they are partisan efforts and that they are using these tremendous powers in a legitimate way.”

Under Trump, the lack of subpoena power for Democrats in some cases meant that agencies—among them the General Services Administration—felt compelled to respond only to requests from committee chairmen. (A GSA spokesperson on Wednesday told Government Executive, "GSA will continue to be responsive to congressional oversight requests.")

Davis counseled Democrats in the Trump era not to put much credence in “all this happy talk about subpoenas,” even if it’s bipartisan. “The committee makes a request, rather than issuing a subpoena right off the bat,” he said. “Then when the agency runs out the clock, you finally issue the subpoena, and you get nothing, or you don’t get what you want. So you have to go to the House floor to get a majority vote on the subpoena. Assuming you do that,” the demand is then taken to “a U.S. attorney, an agent of the administration, at which point, the White House can take it to court to get it quashed or limited. It’s time-consuming and not as easy as it looks.” Unlike past presidents, “Trump will fight it,” he added.

Prospects for Change?

Rep. Trey Gowdy, R-S.C., the current Oversight and Government Reform chairman who is retiring this year, has said that one reason for his leaving was that oversight had degenerated into a partisan competition to discredit the opposition.

Davis predicts that with a “divided country and a divided Congress,” investigations will be interpreted politically. “The governance model will continue to be executive orders, regulation and a court system that sustains the president,” he said.

But the arrival of Democrats with the power to call hearings and issue subpoenas is welcomed as a counter-balance by nonprofit ethics and transparency groups. “Donald Trump’s lifelong talent for outrunning liability just came to an end,” said Austin Evers, executive director of American Oversight, which plans a “Parallel Investigations Initiative” that dovetails with the House Democrats’ plans. “After two years of sitting on the sidelines, Congress is going to begin conducting real oversight for the first time, and if the Trump administration tries to obstruct or delay, American Oversight will be going to court to force transparency.”

Liz Hempowicz, policy director for the nonprofit Project on Government Oversight, told Government Executive, “I think all eyes are going to be on the Democrats in the House to see how they're going to exercise their new authority, but the reality is that any legislation the 116th Congress hopes to send to the president's desk will have to be bipartisan,” she said. “I would hope Chairman Cummings would welcome members of the new minority party in the House who want to engage in good faith to join him. We have long said that bipartisan oversight is the best form, and leads to lasting and sustainable change.”