With two months left before the midterm elections, Republicans are scrambling to prepare for an onslaught of oversight investigations that Democrats will likely launch if they retake the House in November. The White House is considering adding a whole roster of new attorneys to handle the caseload. Rudy Giuliani, the president’s lawyer, is discussing the possibility of impeachment. And House Republicans are circulating a list of Democrats’ potential lanes of inquiry into Trump, spanning at least 18 different topics—ranging from the president’s tax returns, to his dealings with Russia, to his firing of Jim Comey.
They are right to be worried.
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There is always a storm of oversight activity when a president’s party loses control of a chamber of Congress—the shift from unified to divided government generates a fivefold increase in the number of oversight hearings and quadruples their duration, according to a 2011 study. But two additional factors assure that the level of activity this time will be less a storm than a 100-year flood.
Start with the singular profile of Donald Trump. He ran for president promising to be somewhat of a bull in a china shop, and while in office, he’s broken a whole lot of dishes. That gives Democrats a lot to work with, as the lengthy GOP list Axios obtained attests.
Then factor in the Republican Congress’ lack of oversight of the Trump administration, thus far. To be sure, Republicans have begrudgingly engaged in some oversight activity on Russian election interference, excessive expenditures by Cabinet secretaries and tariffs perceived to be arbitrary. But in the main, because they fear Trump’s stranglehold on GOP voter base, Republican-led committees have generated almost no movement on the president’s conflicts of interest, irregular and arbitrary policymaking processes, or his rejection of expertise and science.
Waters have been rising to dangerous levels, the pressure behind the dam has built and built and, failing serious congressional oversight, there hasn’t been a release valve. Now, the floodgates may be about to open, releasing an oversight deluge of biblical proportions.
In 2007, the last time the Democrats swept into power, I joined the staff of the House Committee on Oversight and Government Reform as one of its oversight specialists. I spent the four years of Nancy Pelosi’s speakership conducting investigations into national security matters under committee Chair Henry Waxman and subcommittee Chair John Tierney. Then, when Republicans regained control of the House in 2011, I joined the Obama White House to help prepare its legislative affairs and legal operations for the coming investigations.
Based on those experiences, here’s what the House Democratic leadership needs to do if it’s serious about investigating the Trump administration—starting now:
Develop priorities and themes for the investigations. Congressional oversight should aid the legislative process. Congress engages in oversight for the same reason it has a really big library: in order to become informed. What do the American people need? What can Congress do to better their lives and protect them from harm? What obstacles can Congress remove from their paths? What is Congress’s obligation to protect American constitutional democracy? The answers to these questions should inform the oversight agenda.
In the House, the oversight agenda needs to yield results within the two-year political cycle, so there’s a premium on having a game plan coming out of the gates. In addition, it is easy to get lost in the fire hose of Trump-dominated news coverage. If you just chase the daily outrage, your hard work risks getting lost. The oversight agenda priorities and themes will serve as the guiding light. Then, the daily controversies can become opportunities to build on the themes of a big-picture body of work. It also is a good time to head off some of the inevitable turf fights between committee chairs at the front end by making clear which committee will take the lead on each priority.
Ensure competent people wield the gavels. There are many dynamics at play in assigning committee roles to members of Congress, including seniority, political clout, diversity, biography and subject-matter expertise. Steer that process to build a strong team of committee chairs who will conduct sober, penetrating oversight. The chairs need to be workhorses who will build a great committee staff, relentlessly pursue the truth wherever it leads, and sustain focus on important issues even once the media has moved on from a controversy. Blockbuster hearings in 2007 highlighted massive failures and unacceptable conditions at Walter Reed National Military Medical Center. But real improvements there took years of unglamorous status updates and follow-up meetings, long after the television cameras were gone.
Set the tone for aggressive and constructive oversight. Leadership should signal its expectation that oversight efforts be robust and aggressive, but also constructive. It should be clear to the caucus that there is a risk of overreach, that ill-informed hearing diatribes are counterproductive, and that abusive behavior to witnesses should not be tolerated. In investigations, there must be more light than sound and fury.
Beef up congressional staff. Congress has long needed to address its loss of oversight capacity. As noted by Brookings, there are some 800 fewer staff on the investigating committees now than in 1995. Even if those losses had not occurred, Congress would not even be close to keeping pace with the growth of the federal agencies it oversees—some 2.77 million civilians and 1.5 million military personnel. There simply are not enough congressional staff resources to demand the accountability needed for a government of our size and complexity.
Establish a select committee on Russian interference. It has become increasingly clear that the Russian election interference in favor of the Trump campaign cuts across multiple committee jurisdictions—intelligence, law enforcement, election integrity, diplomacy and cyber warfare. A whole-of-government problem needs a whole-of-government perspective. Thus, the select committee should have interagency jurisdiction and subpoena power.
Then, beyond the leadership, all those members who are interested in becoming committee chairs in 2019 need to start laying the groundwork now for the investigations to come:
Seed accountability community work now for harvest in 2019. The accountability community—the Inspectors General (IGs), Government Accountability Office (GAO), Congressional Budget Office (CBO), and Congressional Research Service (CRS)—often respond to requests from the minority party in Congress. Their work can take as long as a year to complete. You should send a request now if you want GAO to identify and track the immigration detention centers or if you want the State and Defense Department IGs to assess U.S. military transfers to Saudi Arabia used in the Yemen conflict. Those requests submitted before the midterms would bear fruit in the middle of your work period as chair.
Send oversight letters to the administration now. While the Trump administration has generally refused to respond to letters from Democratic members of Congress while they are in the minority, these letters would create a catalog of issues that could be revisited after the election.
Audit Republican sandbagging. Catalogue document requests that went unsent when Democrats requested them, witnesses let off the hook after asserting meritless privileges, and subpoena threats that either went unmade or unenforced. Revisit them after the election.
Persuade your committee members to be constructive and active participants. A committee is most productive when all its cylinders are running. That means the chair needs to engage committee members so that they read briefing materials, participate in investigative travel, attend hearings, and manage important lines of questioning. It starts by the chair listening to the members while developing the committee agenda. The chair should look for opportunities to help their high-performance committee members shine. A chair can farm out good question topics and media opportunities. There also may be oversight issues that are important to members’ districts, including travel for site visits or field hearings.
Assess your jurisdictional authorities and executive branch players. It will be important to understand the portfolio of agencies and statutory authorities within your committee’s jurisdiction. The CRS can help. Then, take a look at the recent GAO and IG reports along with recent controversies. Review of these materials would help develop core competency and give you a jump on identifying lanes of inquiry.
Engage in strategic planning. Once you get your arms around the committee authorities and pressure points, plan your big-picture oversight agenda. It is important to establish the right mix of activities to complement a few signature areas of focus. For your big-ticket agenda items, you want to build a plan with a number of deliverables—investigations, hearings, reports and remedial measures—during the two-year cycle. At the same time, you should use letters and leverage outsourced accountability community products to maintain an oversight presence in other areas of jurisdiction.
Build core competencies and expertise. Good strategic planning and agenda discipline will help you develop expertise. It is hard for a House member to establish an individual profile, but oversight presents an opportunity to distinguish oneself. You want to be a must-stop for experts and journalists covering your top oversight and policy priorities.
Hire people with real investigative skills. Build capacity to conduct in-house investigations for your signature oversight priorities. That means hiring former law-enforcement agents, investigative journalists, prosecutors and white-collar criminal defense lawyers. These are people who like to find out what happened and how it fits into the big picture. Too many investigative committee staffers are political or policy aides who happen to have law degrees rather than people with investigative chops.
Give the minority an opportunity to participate in good faith. Oversight is at its best when it is conducted on a bipartisan basis, especially in establishing the facts. It will be taken more seriously by the targets of the investigation, and viewed as more credible by the media and the broader public. After all, congressional oversight is supposed to serve the whole nation. In my time on the Hill, we had constructive relationships with our Republican subcommittee counterparts under then-Reps. Chris Shays (R-Conn.) and Jeff Flake (R-Ariz.), but not so much in dealing with Rep. Darrell Issa (R-Calif.) in his role as full committee ranking member. Bipartisanship is an important goal, but it is not a suicide pact. If the minority repeatedly burns you with leaks or other acts of bad faith, at some point you have to look in the white of their eyes and jam your necessary investigative acts down their throats.
Take oversight out into the field. Where it would appropriately advance an investigation, send your staff or take members out into the field. There are a lot of ancillary benefits to travel. Members learn a lot on the ground. They develop contacts with agency personnel who are not under the immediate thumb of the agency’s front-office handlers. Members also get some distance from the crucible of Washington’s partisanship and can actually get to know each other.
Democrats have the opportunity to make history here, not only in terms of what they uncover in their investigations, but by simply restoring the kind of checks and balances essential for American democracy to flourish.
Now is the time to prepare the investigative paths. It’s going to be a gully washer.