Sometimes the small lies mask big lies, and we often spend so much time chasing the small ones that we let the big ones slide past, uncorrected and even undetected. Little by little, President Trump’s most ardent defenders have smuggled a big lie into the ongoing political debate, and it isn’t attracting any scrutiny.
That big lie is this: Democrats in Congress who have launched a new round of hearings and other oversight efforts on Trump are abusing their power, because they lack evidence or reasonable suspicion of crimes before conducting investigations.
This completely misstates the core purpose of congressional oversight. In this sense, the lie doesn’t represent a routine disagreement over a particular separation-of-powers clash, or an ordinary argument about whether a given presidential act merits the criticism it’s receiving.
Instead, we’re seeing a concerted effort to deceive Americans about the very legitimacy of the exercise of a core function of government — Congress’ role in acting as a check on the executive branch.
That oversight role actually has little to do with pursuing criminality. The purpose of this deception effort, of course, is to delegitimize any and all efforts to hold Trump accountable for the extensive misconduct, corruption and abuses of power he has committed on top of anything criminal he might have done.
The lie is suddenly everywhere. Trump tweeted out a quote from a Republican congressman who said: “No one is accusing the President of a crime and yet they (the Democrats) are issuing hundreds of subpoenas. This is unprecedented.”
Fox News regularly blares forth this same idea. In a recent segment that Trump also highlighted, Fox personalities ripped into Democrats for investigating Trump without any “facts or evidence of a crime warranting impeachment” and for following the special counsel in a “search for a crime.”
Trump also recently drew attention to Rep. Devin Nunes (R-Calif.) making this claim: “All of these investigations are in search of a crime. Democrats have no evidence to impeach President Trump. Ridiculous!” Another Trump media ally recently said that Rep. Adam Schiff (D-Calif.), who is scrutinizing multiple matters as Intelligence Committee chair, is “inventing crimes.” All emphasis mine.
The role of congressional oversight
The deeper deception here goes to the core function of congressional oversight in the separation-of-powers scheme. As a Congressional Research Service report explains, Congress’ role, among other things, is to scrutinize the executive branch’s execution of the laws as Congress intended them, and its implementation of executive power as delegated by Congress.
Congressional scrutiny of suspected executive branch misconduct or abuses of power simply does not require pre-suspicions of lawbreaking. Indeed, what makes such abuses what they are is that they often constitute maneuvers that may be presumptively legal yet could be driven by conflicts of interest, or potentially questionable intent, that render them suspect from a governing perspective.
Congress also exercises oversight as a core part of its legislative function. The courts have affirmed very broad congressional power to scrutinize executive branch and agency conduct, and to compel release of information to carry out that scrutiny, as a critical component of its lawmaking role.
“Criminality is only one very small part of what congressional committees are trying to get at when they conduct oversight,” Josh Chafetz, a professor at Cornell Law School, told me. Chafetz has written a book on how Congress can and should use its powers, and one of these, as it happens, constitutes public hearings.
This function is often dismissed as grandstanding — sometimes understandably so. But the act of informing the public via hearings constitutes a legitimate and important way that members of Congress represent their constituents — they reveal to voters what the executive branch may be misleading them on, and offer a competing view of what might be in the national interest in contrast with that of the executive.
“Congress often has the ability to ferret out information that the American public would want to have, but that no one else can get to us,” Chafetz said. “Part of acting as our representatives involves informing the public about what is going on.”
Democratic oversight is perfectly legitimate
Among other things, House Democrats are now moving to scrutinize the foreign financial dealings of Trump’s businesses; his negotiations over a Moscow tower while a presidential candidate; his numerous efforts to obstruct the Russia probe; and his role in reimbursing an illegal hush money scheme while president.
These all go to the core congressional oversight roles of informing legislation, in the form of responses to Trump’s foreign policies and obstruction efforts; informing the public; and fact-finding in advance of possible impeachment, which is the correct order in which to do things. Yes, oversight could also ferret out criminality, but that’s a minor possibility.
The game Trump’s allies are playing
Trump’s allies are laying the groundwork for a spin war over whatever findings by special counsel Robert S. Mueller III are reported to Congress. Anything short of criminal charges for conspiracy with Russia will be touted as vindication.
But this is nonsense. Even if Trump is not charged, he may still have committed crimes — such as directing criminal hush money payments — while escaping charges, at least until he leaves office, due to policy against indicting sitting presidents. Even if Mueller’s publicly released findings don’t confirm this, crimes may have been established — one reason the public must see those findings in full.
But beyond whether crimes occurred, a great deal of wrongdoing, misconduct, outright corruption and naked abuses of power by Trump has already been established. This will remain true, and worthy of continued scrutiny, irrespective of whether any criminal charges are ever brought against him.
The whole point of this new line of propaganda is to convert any failure to bring additional criminal charges into a blanket of rhetorical fog that obscures that basic reality and places all that misconduct beyond the reach of accountability entirely. All this rests on a big lie that is eluding our attention. But it shouldn’t.