Since taking control of the House, Democrats have launched wide-ranging investigations into President Trump, his campaign, his administration and his family business operations. Republicans in Congress have criticized the moves as part of an effort to disrupt Trump’s presidency and argued that they cover the same ground as special counsel Robert S. Mueller III’s Russia probe. But by conducting their own investigations, Democrats are taking the exact course of action two of Trump’s most prominent nominees previously proposed.
During Kenneth Starr’s investigation into President Bill Clinton’s affair with White House intern Monica Lewinsky, Brett M. Kavanaugh and William P. Barr argued that waiting on the counsel’s report would be an abdication of Congress’s constitutional duty. Both men unequivocally supported rigorous congressional oversight apart from — or perhaps even instead of — a counsel investigation. But with Trump in office, Republicans have spent two years defying that very argument.
“When Congress learns of a serious allegation against a president, it must quickly determine whether the president is to remain in office,” Kavanaugh wrote for The Washington Post in a piece that ran Feb. 26, 1999, under the headline “First Let Congress Do Its Job.”
Kavanaugh, then a top lawyer for the Starr investigation, was averse to the idea of a badly behaved president and the independent counsel statute. For Congress to sit idly by and defer to the counsel’s investigation, he said, is “not what the Constitution contemplated.”
“There simply was no need for this mess to have occupied the country for 13 months,” Kavanaugh suggested, because Congress could have “gotten to the truth” much faster.
In a March 1998 article published by the conservative magazine American Spectator, Kavanaugh wrote that because “Congress is the entity constitutionally assigned to determine whether the president should remain in office, it follows that a congressional inquiry should take precedence over a criminal investigation of the president.”
He added, “It is more important for Congress to determine whether the president has committed impeachable offenses or otherwise acted in a manner inconsistent with the presidency than for any individual to be criminally prosecuted and sentenced to a few years in prison.”
Similarly, Barr, who was recently confirmed as U.S. attorney general, once expressed dissatisfaction with Congress’s shrinking role in presidential investigations.
“I would like to see the watchdog institutions we have in society step up and perform the primary role they are supposed to, not let the independent counsel handle everything,” he said during a 1999 congressional hearing. “And then continue vigorous oversight both by Congress and the press.”
Kavanaugh’s and Barr’s statements were made in the context of the independent counsel statute, not in reference to current special counsel regulations. The statute was allowed to expire in 1999 and was not replaced. Unlike Starr, Mueller gets his power, jurisdiction and protection from Justice Department rules.
At times, a counsel’s investigation and a congressional oversight committee may overlap, but each has its own boundaries, said attorney Jonathan Meyer, a partner at Sheppard Mullin who has experience with both types of investigations. Neither, he said, has unlimited power or jurisdiction.
“The committee is limited by constitutional issues,” he said, such as the separation of powers and the balance of powers among the branches of government. Meyer also noted that there are limits to the information an oversight committee can obtain.
Unlike a special or independent counsel, which investigates allegations of criminal activity, Congress’s role is much broader, Rep. Elijah E. Cummings (D-Md.), chairman of the House Oversight and Reform Committee, said in a statement to The Post. It also investigates waste, fraud, abuse, inefficiency and duplication with an eye toward reforming existing laws or writing new ones.
“The Oversight Committee is the primary investigative body of Congress, and our job is to ensure that the same requirements of transparency and accountability that have applied to every other administration apply to this one,” he said.
The role of the Oversight Committee is multifaceted, Meyer said; it acts as a check and balance on other government branches. To the extent there is wrongdoing in the executive branch, even if it may not rise to the level of criminal prosecution, it also acts as a watchdog. Justice Department guidelines suggest a sitting president cannot be indicted, making impeachment and Oversight Committee hearings the only way to pursue law enforcement action against a president.
Barr, at his January confirmation hearing, agreed, suggesting that if a president is found to have violated a statute, he “would be accountable politically.”
In response to a question from Sen. Dianne Feinstein (D-Calif.) regarding Trump’s potential use of the pardon power, he said: “Under the Constitution, the president’s power to pardon is broad. However, like any other power, the power to pardon is subject to abuse. A president who abuses his or her pardon power can be held accountable in a number of different ways by Congress and the electorate.”
Both Barr and Kavanaugh, now a Supreme Court justice, hold significant roles in the future of any investigations of the president and his associates. As attorney general, Barr will be the recipient of the Mueller investigation report. He will decide how much, if any, of the report will be released to the public and members of Congress. He also serves as the top prosecutor in the Trump administration and could oversee any future criminal investigations and charges. Kavanaugh could help decide how deep Congress’s probes of Trump can reach.
Kavanaugh once endorsed a regime under which “Congress does its job and oversees the executive.” This is what Congress is doing.