With a majority in the newly constituted House of Representatives, Democrats have gained the power to chair committees and conduct oversight of the executive branch. Cynics may predict a partisan circus. But congressional oversight is a serious business with a huge impact on government policies. Here are five of the most stubborn myths that surround it.
Soon after the midterm elections, Senate Majority Leader Mitch McConnell (R-Ky.) warned that Democrats “will have to decide just how much presidential harassment they think is good strategy. I’m not so sure it will work for them.” Echoing McConnell in a November tweet, President Trump wrote, “The prospect of Presidential Harassment by the Dems is causing the Stock Market big headaches!” Earlier, he complained that House Democrats would “waste Taxpayer Money investigating” him, threatening, “Two can play that game!”
Oversight is not a game. It is a core constitutional function, a cornerstone of the structural checks and balances on which our federal government is built. Congress cannot carry out its constitutional duties without the power to investigate whether the laws it enacts are being faithfully executed and whether the money it appropriates is being properly spent. The Supreme Court has repeatedly upheld the exercise of congressional oversight, including the power of committees to issue subpoenas, because oversight is “inherent in the legislative process.” As early as 1792, Congress investigated military failures in the western territories. Capitol Hill exposed financial improprieties during the Grant and Harding administrations and helped unearth the Watergate scandal. Oversight has also paved the way for landmark legislative accomplishments such as government contracting reforms, controls on intelligence agency practices and tobacco regulation.
It’s true that this power has sometimes been abused for partisan purposes, as evidenced by the statement from then-House Majority Leader Kevin McCarthy (R-Calif.) that the Select Committee on Benghazi was a success because it damaged Hillary Clinton’s poll numbers. But bad actors can abuse norms in any branch of government. Far from presidential harassment, oversight is Congress doing its job.
In 2017, a group of never-Trump Republicans, led by former presidential candidate Evan McMullin, produced a video urging Congress to “name a bipartisan select committee to get to the truth” about Trump’s alleged Russia ties. More recently, Speaker Nancy Pelosi (D-Calif.), responding to progressive demands, announced that the House will reconstitute a Select Committee on the Climate Crisis. Panels such as these take their inspiration from inquests like the Watergate committee, led by Sens. Sam Ervin (D-N.C.) and Howard Baker (R-Tenn.).
But while select committees can highlight issues of national concern, they are no substitute for the work of Congress’s standing committees. Lawmakers posted to them are already well-versed on issues within their panels’ jurisdictions and have an intimate knowledge of the executive branch agencies they oversee. Moreover, standing committees, unlike some select committees, have authority to transform oversight findings into legislation. Incoming House Oversight and Government Reform Committee Chairman Elijah Cummings (D-Md.), for instance, worked with former chairman Jason Chaffetz (R-Utah) to uncover management flaws in the Secret Service, and the committee has acted to protect whistleblowers in the Transportation Security Administration.
Last year, former White House aide Stephen Bannon cited executive privilege as a basis for declining to answer questions from the House Intelligence Committee, including questions about the presidential transition, which predated his tenure in the executive branch. Trump, as The Washington Post reported in September, cited executive privilege as justification for declining to release thousands of pages of records from Supreme Court nominee Brett Kavanaugh’s time as a White House staffer.
But executive privilege should protect communications sent or received only by the president and his immediate advisers, not lower-level officials or transition advisers. And it’s not absolute; it is weighed against Congress’s need to obtain information to carry out its constitutional duties. Federal courts were skeptical of executive privilege claims when the House Judiciary Committee sought to enforce subpoenas for testimony about the firing of U.S. attorneys in the George W. Bush administration, and when the House Oversight Committee sought Obama Justice Department documents regarding a botched gun-trafficking investigation known as Operation Fast and Furious.
Faced with these precedents and reluctant to risk a definitive ruling from the Supreme Court, the executive branch typically seeks to accommodate legitimate oversight requests rather than resist. Moreover, as former House general counsel Irvin B. Nathan has pointed out, Congress has other tools to compel executive branch cooperation with oversight requests, including the power of the purse. The House can withhold funds for executive agencies until they comply.
'take the Fifth.'
In 1987, facing charges in the Iran-contra affair, Marine Lt. Col. Oliver North testified before a joint committee that he would “respectfully decline” to answer certain questions “based on my constitutional Fifth Amendment rights.” In a 2013 hearing on IRS scrutiny of organizations seeking tax-exempt status, senior IRS official Lois Lerner invoked the Fifth Amendment right against self-incrimination, telling members of the House Oversight Committee, “I will not answer any questions or testify today.”
Yes, the Fifth Amendment has been recognized to be valid before Congress. But a committee chairman holds a trump card: A federal statute authorizes Congress to obtain a court order forcing a witness to testify with limited immunity from criminal prosecution, thereby overcoming the constitutional privilege against self-incrimination. Congress uses this power sparingly (the process may taint a subsequent prosecution, as it did when the Iran-contra committees compelled North’s testimony ), but the authority is on the books. What’s more, an invocation of the Fifth is a public relations disaster — and therefore a last resort — for any executive branch official and for the administration in which he or she serves. “I won’t tell you about the work I did on behalf of the public” is never a good look.
will bring down Trump.
More than a year ago, Post columnist Jennifer Rubin speculated that a 2018 Democratic takeover in Congress “would be politically fatal” for Trump. Last year, Trump ally Sam Nunberg declared that “2018 is about saving the Trump presidency.” This past week, CNN’s Chris Cillizza opined that Democratic oversight “will make Trump’s life a living hell.”
Oversight is a powerful tool, but it is no silver bullet. Public interest in hearings may wane, and the oversight process, meant to expose potential malfeasance, can have unintended consequences if its targets appear sympathetic, as when North became a hero in some quarters for stonewalling the Iran-contra committees. Also, several recent presidents have overcome probes that analysts thought might weaken them, such as congressional investigations of the Travelgate and Whitewater controversies during President Bill Clinton’s first term.
And even if oversight findings eventually lead the Democrat-controlled House to impeach Trump — something Pelosi now says she hasn’t ruled out — the two-thirds supermajority required to convict him in the Republican-controlled Senate is a daunting obstacle.