Back in 2015, the House Republican majority changed the rules in the House to make it easier for them to subpoena the Obama administration. Rather than involve members of the Democratic minority in the process at all, they simply authorized their own committee chairs to unilaterally issue subpoenas to anyone they wished.
Come January, that may well come back to haunt the dwindling number of Republicans left in the U.S. House of Representatives. The result: for the first time, Donald Trump and his administration may soon face some real oversight.
Unlike some legislative bodies, the House essentially works on simple majority rule. With 218 votes, the majority does not need a single vote from the minority to issue subpoenas for testimony and documents — or to change its own rules. This means that after two years with largely no scrutiny at all, the Trump administration could soon be forced to be transparent with the American public about its conflicts of interest, compliance with the law, and myriad examples of corruption.
“Most, if not all, current congressional committees have utterly failed in their oversight responsibilities of the current administration,” Aaron Scherb, director of legislative affairs at Common Cause, told ThinkProgress. “Democratic ranking members have requested information from the executive branch and most of those requests for information are being ignored.” A Democratic majority, he predicts, will “be able to put teeth behind those information requests [and] have more administration officials testify before the relevant committees to help fulfill the checks and balances that are largely absent from the current Republican Congress.”
While virtually every House committee will have new powers under the new majority, this subpoena power will matter most in the Committee on Oversight and Government Reform — the chief investigating committee. A Democratic committee aide told ThinkProgress that under Rep. Elijiah Cummings (D-MD), the current Ranking Member of the committee and the person likely to become chair in January, oversight will fall into “two lanes” — ensuring that government is working for the people and improving the day-to-day lives of the American public.
And Cummings will not be afraid to wield the power of the subpoena where appropriate. “In order for Congress to do our job to conduct credible oversight of the Executive Branch,” the aide said, “we need to obtain basic information from the Administration, and I would hope and expect federal agencies to provide the documents we need to do our jobs effectively and efficiently. We always hope that subpoenas do not become necessary, but they are one tool Congress has if the Administration is not forthcoming.”
Beyond such matters as obtaining Trump’s tax returns, this would include “shining a light on waste, fraud, and abuse in the Trump Administration,” by examining the security clearance process and child separation policies.
Last summer, in an unusual effort to rile up GOP partisans and forestall the election of a Democratic congress, House Republican leaders circulated a list of scandals which they had ignored during Trump’s tenure. Their message was clear: Lose the majority, and oversight on all of these areas becomes inevitable. Now that the election is over, Republicans will have a difficult time credibly arguing that heightened scrutiny wasn’t on the ballot.
Of course, there could be an obvious hitch; after two years of ignoring requests for information from the Democratic minority, what happens if Trump and his team simply ignore the subpoenas from a Democratic House of Representatives?
According to Scherb, this could create a constitutional crisis. “They’re certainly allowed to invoke the 5th amendment [for testimony], that might be an option certain officials would take. But failing to comply with a subpoena request would set an extremely dangerous precedent,” he said.
“The Trump administration and its officials have taken a very broad view of invoking executive privilege to withhold documents and they may choose to continue that trend with a Democratic controlled House. That would inject the courts into this process as well. It’ll be coming to a climax potentially,” he added. But with two Trump picks now on a conservative Supreme Court, it is unclear whether they would lift a finger to support oversight.
“Public pressure is certainly a tool that Democrats would have to use, almost a public shaming,” he continued, “although the current administration does not seem to care much about public opinion.”
Fortunately for the new majority, there is one constitutional power that Congress has that could be a very powerful lever to force the administration to follow the law: the power of the purse-strings. All federal revenue bills must originate in the U.S. House of Representatives.
“Appropriations is the best,” Scherb observed. “Whether it’s decreasing funding or conditioning funding on providing certain documentation to the relevant committees, it could be a good carrot and stick approach.”
In other words, the House could refuse to provide any spending on Trump’s pet projects unless he complied with the laws. Alternatively, it could mandate that unless Trump turned over required documents, they will no longer allow taxpayer dollars to be spent on such sundries as White House cable television bills, Air Force One travel to golf courses, or double scoops of ice cream.