Trump’s Inquisitors: How far will the Democrats go with their new found investigative powers?

Trump’s Inquisitors: How far will the Democrats go with their new found investigative powers?
US President Donald Trump receives applause after signing the "First Step Act" and the "Juvenile Justice Reform Act" at the White House in Washington, DC, on December 21, 2018. (Photo by Jim WATSON / AFP)

This week, Democrats returned to Washington with the authority to investigate a Trump White House that is suspected of foreign collusion, conflicts of interest, and mismanagement of the federal government. How far will they go, asks Jason Zengerle

As political life kicked back into action in Washington this week, a number of letters were in circulation. All were sent by US Representative Elijah Cummings.

One letter was jointly addressed to US Health and Human Services Secretary Alex Azar, Homeland Security Secretary Kirstjen Nielsen, and acting Attorney General Matthew Whitaker, demanding the age, gender, country of origin, and current location of every child who was separated from his or her parents under the Trump administration’s immigration policy.

Another will have gone to Pat Cipollone, the White House counsel, asking for the identities of any senior White House officials who have used — as Hillary Clinton once did — nongovernment email accounts to conduct official business.

The White House chief of staff will have received a letter, also addressed to the heads of multiple federal agencies, requesting information and documents about the use of government-owned aircraft for personal travel and private aircraft for official travel.

Outside the US government, the Trump organisation will have received one asking for a complete accounting of all the payments it has received from foreign governments or foreign-government-owned entities since Trump’s election.

Each letter will have been written on stationery bearing the seal of the US House of Representatives Committee on Oversight and Government Reform and signed with Cummings’s looping signature over the words ‘chairman-designate’.

Elected to the House in 1996, Cummings, 67, represents a majority black district anchored in Baltimore. He is a son of two former sharecroppers turned Pentecostal ministers; his bald head and booming baritone project a ministerial, and authoritative, presence.

Until now, Cummings’s greatest national renown came in 2015: During the riots that followed Freddie Gray’s death from injuries sustained in a Baltimore police van, Fox News broadcast live coverage of the congressman walking through the city’s streets, bullhorn in hand, urging calm and shouting at protesters to go home.

“I’m not trying to do anything extraordinary,” Cummings told me of the letters. “I’m trying to do what the constitution says I’m supposed to do.”

It was election night, and he was at a small party in Baltimore, where he had just been informed by a colleague, Representative John Sarbanes of Maryland, that the networks were declaring that Democrats would have a majority in the House of Representatives for the first time since 2011. “Mr Chairman!” Sarbanes said in breaking the news.

The mid-term results effectively brought an end to Trump’s legislative agenda, or at least the parts of it that Democrats find objectionable. However, the victory gives Democrats little legislative power of their own. If by some miracle any Democrat-authored House bill makes it through the Republican-controlled Senate, Trump’s veto pen awaits.

What the House Democrats will have, however, is oversight authority: The ability to hold hearings and request documents and, if necessary, issue subpoenas to uncover and expose all the incompetence and misconduct and outright corruption that they suspect permeates the executive branch under the current occupant of the White House.

“Make no mistake, Democrats will honour our constitutional responsibility to exercise oversight of the Trump administration and get the American people the answers they deserve,” said leader of the House Nancy Pelosi in a statement.

“Voters delivered a check and balance on the president that will hold him and his administration accountable for the abuses of power and culture of corruption that have consumed Washington.”

Trump is already besieged by the investigation led by Robert Mueller, the special counsel, into Russian interference in the 2016 elections and by multiple probes by the US attorney’s office for the Southern District of New York into his family business.

Robert Mueller
Robert Mueller

This month, he will face a Democratic-controlled House of Representatives that suddenly has the power to open a third investigative front against him — power that will reside, in large part, in Cummings’s office.

That power is broad and subtle. The Oversight and Government Reform Committee’s mandate is investigation, across the whole range of federal government operations — and even into the private sector. (The three-year congressional investigation into the use of steroids in Major League Baseball in the 2000s was a House Oversight production.)

Other committees have the power to investigate, too, but none have so expansive a remit.

“Oversight,” says former Representative Henry Waxman of California, the Democratic chairman of the committee from 2007 to 2009, “has jurisdiction over the world.”

This has given Cummings’s predecessors a unique ability to shape the public perception of recent presidencies — particularly when, as will be the case in January, it is a president of the other party.

Many of the familiar details of the George W Bush administration’s outing of the covert CIA agent Valerie Plame, emergency-response failures during Hurricane Katrina, and disastrous reconstruction of Iraq were ferreted out by Waxman, who led the Oversight and Government Reform Committee for the last two years of Bush’s second term.

The congressional investigations of the Obama administration — into claims that the Internal Revenue Service targeted Tea Party groups and that the Justice Department allowed guns to be illegally trafficked across the Mexican border — that dominated Fox News subtitles after Republicans took back the House in 2011 were started by Waxman’s Republican successor, Darrell Issa.

As a rule, the Oversight and Government Reform Committee is a sleepy place when the same party controls Congress and the White House. However, even by these standards, the committee’s performance during the first two years of the Trump administration has been unusual.

Under the chairmanship of Representative Jason Chaffetz of Utah and then, after Chaffetz resigned in June 2017 and took a job at Fox News, Representative Trey Gowdy of South Carolina, the committee essentially turned a blind eye toward the executive branch.

On matters big (like the firing of FBI director James Comey or the administration’s botched response to Hurricane Maria) and comparatively small (like Trump’s decision to revoke the security clearance of former CIA director John Brennan), the Oversight Committee did not seem interested in doing much real oversight.

“If the president’s party on Capitol Hill becomes subservient to the executive branch and just becomes an appendage of that, then Congress basically loses its meaning,” Tom Davis, the Virginia Republican who was chairman of the committee during part of Bush’s presidency, from 2003 to 2007, told me. “We turn into a parliamentary operation.”

Norman Ornstein, a congressional scholar at the American Enterprise Institute, puts it even more bluntly.

“Looking back over the first two years of the administration,” he says, “I can’t point to a single example, House or Senate, where any committee or subcommittee actually fulfilled its role of doing oversight.”

Over the past two years, as the committee’s ranking member, Cummings issued 64 subpoena requests; they were requests because the minority party can’t issue subpoenas without the majority’s approval. Chaffetz and Gowdy rejected them all. And even when Chaffetz or Gowdy did ask the Trump administration for information, they didn’t push very hard.

“I was able to get them to jointly request documents that we needed to do our job,” Cummings told me, “but when the administration basically said, ‘screw you’ — and the administration basically said that to every request — they refused to back it up with a subpoena.”

Indeed, the first requests Cummings will send out as the incoming Oversight chairman — the letters about family separation, nongovernment emails and government-owned aircraft for personal travel — will be those that Chaffetz and Gowdy jointly sent with him over the past two years and that the administration largely ignored.

The US Congress’s oversight responsibilities originated from an incident on November 4, 1791, when a 1,400-soldier military expedition led by Arthur St Clair, then governor of the Northwest Territory and a former general officer in the Continental Army during the Revolutionary War, was routed in what is now Ohio by a confederacy of warriors from three Native American tribes.

Nearly 700 soldiers were killed and 300 wounded. The House of Representatives established a select committee to investigate the defeat and authorized it to “call for such persons, papers and records as may be necessary to assist their inquiries”.

President George Washington was initially concerned that Congress had overstepped its bounds.

However, after Washington’s cabinet — including Secretary of State Thomas Jefferson and Treasury Secretary Alexander Hamilton — unanimously counselled him otherwise, he agreed to co-operate with the investigation, turning over the documents that had been requested.

In the 226 years since the committee investigated — and ultimately absolved — St Clair, Congress has performed its oversight and investigative functions with varying degrees of enthusiasm, competence and responsibility.

For every Senate investigation into the Teapot Dome scandal — which brought down Albert Fall, Warren Harding’s secretary of the interior, in 1923 for accepting hundreds of thousands of dollars in bribes from oil barons — there’s Senator Joseph McCarthy’s use of his chairmanship of the Committee on Government Operations in the 1950s to search for communists in the government.

In the decades after Watergate, both the Senate and the House conducted rigorous and bipartisan, investigations into topics including intelligence-agency abuses and military-procurement fraud, producing meaningful reforms in the process.

That heyday came to an end, however, when Republicans took back the House in 1995, giving them control of it for the first time in 40 years. Once Newt Gingrich was installed as House speaker, he merged several House committees with responsibilities to monitor government agencies into a single panel, naming it the Government Reform and Oversight Committee.

The new committee had the broadest oversight jurisdiction of any in Congress — a power Gingrich quickly weaponised against the Clinton administration. He filled over half the GOP’s committee seats with freshmen who arrived on the wave of his Republican revolution, and in 1997 made Representative Dan Burton of Indiana its chairman.

An ardent Clinton foe, Burton had already proposed investigating the suicide of the deputy White House counsel Vince Foster — Burton infamously conducted amateur forensics tests, reportedly by shooting melons in his backyard — and how much money the White House was spending on postage to respond to letters that children had written to the Clintons’ pet cat, Socks.

In his six years as chairman, Burton issued more than 1,000 unilateral subpoenas and demanded everything down to the White House holiday-card list. However, his Javert act ultimately became too much even for Republicans.

For all his exertions, Burton proved unable to find concrete evidence of serious wrongdoing on the part of the Clinton administration. He repeatedly undermined himself, as in 1998 when one of his top aides — Trump’s future deputy campaign manager David Bossie — released transcripts of the jailhouse phone conversations of Hillary Clinton’s old law partner and former Associate Attorney General Webb Hubbell, who was convicted of fraud for overbilling clients, that seemed to implicate Clinton in the overbilling.

Democrats later showed that the transcripts had been misleadingly edited, and Bossie was pressured to resign.

“We’d just put our foot out,” recalls Waxman, who was the top Democrat on the committee during Burton’s chairmanship, “and he’d trip over it.”

Skilled investigations

During their years in the minority, Cummings and his roughly 35-person committee staff, led by its director, David Rapallo, became skilled at conducting investigations without much political or legal leverage.

In 2017, a Democratic investigator for the Oversight Committee, scrutinising Michael Flynn, Trump’s first national-security adviser, reviewed Flynn’s 2016 security clearance renewal application and noticed that Flynn took a trip to Saudi Arabia in 2015 — during which he claimed to stay at a hotel that did not exist and to attend a conference that did not occur.

Robert Mueller went on to investigate Flynn’s suspected efforts to broker a $100bn (€87bn) energy deal between Saudi Arabia and Russia’s nuclear-power agency.

Combing through the unpublished supporting evidence of an inspector general’s report, Democratic committee staff found emails that appeared to show that Trump, in spite of his own denials, had ordered the reversal of plans to move the FBI headquarters to a suburban location and off Pennsylvania Avenue, where it currently sits across from the Trump Hotel — a reversal that would benefit his hotel by preventing commercial developers from building a competing property across the street.

“The Cummings people did a lot of great investigative work without formal tools,” says Phil Barnett, who was the staff director of the Oversight Committee under Waxman.

“Now they will have formal tools.”

In September, Pelosi invited Cummings to her Capitol office, along with two other Democratic congressmen who, if the party won the House in November, would become chairmen of committees with powerful investigative mandates: New York’s Jerrold Nadler, of the Judiciary Committee, and California’s Adam Schiff, of the Intelligence Committee.

There they were joined by several Democratic representatives who worked previously as prosecutors: Joe Kennedy of Massachusetts, Dutch Ruppersberger of Maryland, and Eric Swalwell of California. Pelosi told the group that they shouldn’t take the outcome of the mid-terms for granted.

House Democratic leader Nancy Pelosi of California holds a news conference at the Capitol in Washington, Thursday, Dec. 13, 2018. (AP Photo/J. Scott Applewhite)
House Democratic leader Nancy Pelosi of California holds a news conference at the Capitol in Washington, Thursday, Dec. 13, 2018. (AP Photo/J. Scott Applewhite)

At the same time, she said, the Democrats needed to begin thinking about how they would conduct oversight of the Trump administration — and the strategising needed to start now.

Like Cummings, Nadler and Schiff chafed at their committees’ Republican chairmen’s lack of interest and outright interference during the Trump presidency.

Mueller’s investigators have spent months building an increasingly

sweeping case about Russian meddling in the 2016 elections, implicating and indicting several of Trump’s closest associates to date.

However, under the chairmanship of the Republican Devin Nunes of California, the House Intelligence Committee — which has a clear constitutional authority to conduct some of the same investigatory work as Mueller — produced a report that breezily concluded that there was no collusion between the Trump campaign and the Russian government and that, contrary to the official consensus of the American intelligence community, the Russian government was not even seeking to help elect Trump. Committee Democrats said they were shut out of the drafting process and publicly condemned the report.

Nunes also initiated parallel investigations of the FBI and the US Justice Department for what he claimed was “criminal activity and fraudulent behaviour” in an effort to hurt Trump’s campaign — investigations that Schiff contends actively sought to thwart exactly the kind of oversight the committee was supposed to be doing.

“I think that the mission for the chairman has been protecting the White House, protecting the president and furthering a political narrative which is completely at odds with the facts,” Schiff told me

With so many targets, and so many hungry Democrats, “there’s the potential for oversight fratricide next year,” says a senior Democratic official on the Intelligence Committee, noting the overlapping jurisdictions of the various committees. There’s also the potential for distraction.

“The question is, do you want to be the Breaking News Committee that just investigates the issue of the day?” asks Swalwell, who sits on the Judiciary and Intelligence Committees. “Or do you want to look at broader, longstanding core issues?”

At that September meeting and at multiple gatherings of members and their staffs over the subsequent weeks and months, an initial strategy — and a division of labour — began to take shape.

Schiff, the incoming Intelligence Committee chairman, will play a major role. One of his top priorities will be protecting, and assisting, Mueller’s investigation, and one of his first acts in the new Congress will be trying to get to the bottom of one of the more tantalising mysteries of the whole Russia affair: To whom did Donald Trump Jr speak on his phone in between calls setting up the June 2016 Trump Tower meeting with Russians peddling dirt on Hillary Clinton?

Trump Jr claims he can not remember, and the call appears as a blocked number on his phone records. Nunes refused to ask Trump Jr’s mobile provider for the blocked number.

“That phonecall may lead to a place the Republicans didn’t want to go,” Schiff says, “and so they were unwilling to get the answer.”

Schiff wants the answer and will press the provider for it.

Nunes’s investigation may not have produced much, but under his leadership, the committee did conduct hundreds of hours of interviews: with Trump Jr, Jared Kushner, Roger Stone and other key figures in the Russia matter.

On Nunes’s orders, almost all the transcripts have remained in the sole possession of the committee, which has, among other things, kept them out of the hands of Mueller’s investigators. Schiff plans to publicly release the remaining transcripts when the new Congress convenes in January. In November, Michael Cohen, Trump’s former lawyer, pleaded guilty to lying to Congress about a Moscow real estate project Trump pursued. Cohen was caught by Mueller’s investigators only because he publicly released his opening statement to the Intelligence Committee.

Referring to the unreleased transcripts, Swalwell told me: “I just wonder how many more crimes are just sitting in the basement of the House Intelligence Committee that Mueller doesn’t know about because he hasn’t seen that they lied to us.”

Schiff is also interested in examining Trump’s business dealings — including whether Russians laundered money through the Trump organisation — from a counter-intelligence perspective.

“What would be most compromising to our nation and our national security is if a hostile foreign power has leverage over the president of the United States,” Schiff told me.

Or as the senior Democratic Intelligence Committee official says: “Whenever Putin is alone in a room with Trump with just the two of them and their translators, like they were in Helsinki, is Putin reminding him that he has an Excel spreadsheet of how many rubles are parked in Trump Tower?”

One afternoon in late November, Nadler, the incoming Judiciary Committee chairman, was in his congressional office. The walls were bare, save some exposed nails. All the pictures and framed bills that once hung on them were piled in a plastic-lined dumpster in the reception area — “Jerry’s bucket of achievements”, Daniel Schwarz, Nadler’s communications director, joked.

Nadler was in the process of moving to a space closer to the Judiciary Committee’s offices.

The congressman from the Upper West Side became the top Democrat on the committee in December 2017 after John Conyers, the long-serving Michigan representative, resigned from Congress over sexual harassment claims.

Nadler has been a Trump bête noire since the 1980s, when, as an assemblyman, he fought to prevent Trump from building a proposed 150-story building in his district, where Trump hoped to live in an apartment on the top floor.

After his election to Congress in 1992, Nadler made sure Trump didn’t receive federal mortgage guarantees for the project.

“I didn’t want him to be the tallest man in the world there,” Nadler told me.

Trump described Nadler in his 2000 book, The America We Deserve, as “one of the most egregious hacks in contemporary politics”.

The Judiciary Committee is endowed with the authority to start impeachment proceedings against a president, as committee Republicans did against Bill Clinton in 1998, and as committee Democrats did against Nixon in 1973.

Nadler is thus probably the committee chairman most likely to find himself caught between the expectations of the Democratic base and the political and institutional realities their representatives are now subject to.

“If they’re successful at doing their jobs, then they’ll bring forth more information about Trump’s wrongdoing, and the logical conclusion will be impeachment,” says Kevin Mack, lead strategist for the liberal billionaire Tom Steyer’s group Need to Impeach, which has gathered nearly 6.5m signatures supporting Trump’s impeachment.

And if Democrats don’t impeach Trump?

“What you’re saying by not attempting to stand up for the rule of law is that the rule of law is not the most important thing to you,” Steyer told me.

“Complaining about something is not doing something about it.”

When Nadler ran to succeed Conyers as the top Democrat on the Judiciary Committee, his pitch included a leaflet he wrote and distributed to his fellow Democrats, which said that he was “our strongest member to lead a potential impeachment”.

Since clinching the chairmanship, however, Nadler has become much more circumspect, at least publicly, about impeachment.

“It’s too early,” he told me in November. “It’s a very momentous step. It has real consequences.”

Trump’s Inquisitors: How far will the Democrats go with their new found investigative powers?

Even if Mueller or congressional Democrats uncover what he concludes are impeachable offences, Nadler told me, he would want to begin impeachment proceedings only if he believes that, by the end of the process, there would be an “appreciable fraction of the Trump voters” who support Trump’s impeachment.

“You don’t want to tear the country apart,” Nadler said. “You don’t want a situation where for the next 30 years half the country is saying: ‘We won the election; you stole it from us.’ 

It’s also very likely that Trump, having already broken so many other norms, will have few qualms about breaking the norm of co-operating, or even feigning co-operation, with congressional investigations.

“If the president treats the Congress the way he has Bob Mueller, we can expect the administration to respond to many of our requests with stonewalling and invective,” Schiff says.

“It’s very possible the administration will decide they’re not going to compromise on anything, and litigate everything.”

David Bossie, the Dan Burton aide who stepped down for misleadingly editing and releasing the Hubbell transcripts, remains an informal adviser to Trump; he has gone so far as to suggest in a recent interview with Jacqueline Alemany of The Washington Post that the White House should encourage people subpoenaed by House Democrats to plead the fifth or even flee the country.

Congressional Republicans have also sent a message by picking Representative Jim Jordan of Ohio, perhaps Trump’s most staunch and outspoken defender on Capitol Hill, to serve as the top Republican on the Oversight Committee.

“When the caucus picked Jordan,” Tom Davis says, “they really picked confrontation.”

The most disheartening prospect for Democrats is what that confrontation could ultimately reveal: just how little leverage, political and legal, a divided Congress has in a fight with a president like Trump.

If Trump administration officials refuse to comply with subpoenas, Democrats could vote to hold them in contempt of Congress. However, that’s a largely toothless gesture.

Even if the House does succumb to the Democratic base’s desire and impeaches Trump, the GOP- controlled Senate would almost certainly never convict. What’s more, impeachment could backfire.

“You don’t want to reward an offender like the president with martyrdom,” Eric Swalwell, who is currently exploring his own presidential run in 2020, told me.

“That would be the worst outcome — that he gets more popular, that his base grows because of it.”

Surveying the task ahead of him, Cummings says: “This will be one of the hardest things I’ve ever done.”

c.2018 The New York Times

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