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In Oversight Role, House Democrats Aim for Both Check and Balance

Investigating the president carries risks for incoming House majority

Incoming House Oversight ranking member Elijah E. Cummings envisions a two-pronged approach to investigating President Donald Trump — focusing on his personal business dealings, including whether they implicate the president’s campaign in colluding with Russia, and probing the “harm” he says Trump has inflicted on the foundations of American democracy. (Tom Williams/CQ Roll Call file photo)
Incoming House Oversight ranking member Elijah E. Cummings envisions a two-pronged approach to investigating President Donald Trump — focusing on his personal business dealings, including whether they implicate the president’s campaign in colluding with Russia, and probing the “harm” he says Trump has inflicted on the foundations of American democracy. (Tom Williams/CQ Roll Call file photo)

Rep. Elijah E. Cummings has seen the headlines. The 12-term Maryland Democrat, who in January will take control of the House Oversight and Government Reform Committee, knows he has the power to become President Donald Trump’s worst nightmare. For now, he’s taking a more measured approach.

“A nightmare has to be in the eyes of the beholder,” Cummings said in a recent interview. “If a nightmare comes with me doing my job that I’m sworn to do, so be it.”

Partisan tensions in Washington already reached a fever pitch during Trump’s first two years in office. But with Democrats taking control of the House in the new Congress, the capital sits on the brink of political warfare.

The shift in power means that Democrats can conduct rigorous oversight of Trump on everything from his personal business dealings to his presidential campaign’s possible collusion with the Russian government to his response to Hurricane Maria in Puerto Rico. They will be able to call his top deputies to testify in nationally televised hearings. They will have subpoena power, and no shortage of things to investigate.

But they must tread carefully.

Whatever the political stakes for Trump, the investigations also present risks for Democrats, who could further inflame hostilities and see their efforts backfire heading into the 2020 elections. Maintaining an image of fairness will be critical — if that’s still possible in a country where trust in government institutions has eroded and many citizens accept the notion of a “deep state,” anti-Trump conspiracy.

Not only are Democrats up against a president who relishes a fight and has succeeded in sowing doubt over rock-solid facts, they must be wary of the messages from their own liberal base, which has already declared Trump impeachable.

“Democrats need to be mindful of the fact that oversight that appears to be a witch hunt is not going to be seen as credible,” said former California Democratic Rep. Henry A. Waxman, who held the Oversight gavel in the 110th Congress (2007-08) and led investigations into waste, fraud and abuse during the Iraq War and the George W. Bush administration’s response to Hurricane Katrina.

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Republicans are already accusing Democrats of using their power for political gain. The day after the election, Rep. Doug Collins of Georgia, who will be the top Republican on the Judiciary Committee next year, said Democrats are “giddy about running roughshod over process and weaponizing taxpayer resources against President Trump.”

“A House majority doesn’t give liberals license to chase political vendettas at deep cost — and no benefit — to the hardworking Americans who trust us to honor the law first by following it ourselves,” said Collins in a press release.

But this kind of criticism from Republicans makes Democrats roll their eyes. They note the two-year, $7 million congressional investigation of the 2012 deaths of four Americans in Benghazi, Libya, and GOP attempts to blame then-Secretary of State Hillary Clinton. The 800-page report in the end faulted the Obama administration broadly while placing no blame specifically on Clinton. But she suffered collateral damage.

As House Majority Leader Kevin McCarthy told Fox News in 2015, “Everybody thought Hillary Clinton was unbeatable” until the Benghazi committee. It succeeded in portraying her as untrustworthy and her poll numbers dropped.

“No one would have known any of that had happened had we not fought and made that happen,” McCarthy told Fox News.

The Benghazi and subsequent Clinton email investigations may have turned the public off to investigations because they came across to many as politically motivated and never-ending.

Still, Democrats are confronting some unusual opportunities.

“Over the past two years, the executive branch has created a target-rich environment,” said Justin Rood, who directs the Congressional Oversight Initiative at the nonprofit, nonpartisan Project on Government Oversight.

“The biggest priority overall is to show that there’s a cop on the beat,” Rood said. “Many Americans perceive that the administration can function with impunity and without respect for laws and norms.”

Democrats think they can get creative by making their investigations broader than just Trump himself. If they want to force Trump to release his tax returns, for example, they could try as part of a general probe into abuse of tax loopholes.

“I think it has to be part of something other than, ‘Now we’ll hold the 25th hearing on things the president thinks we don’t like about him,’ ” Waxman said. “But if the Ways and Means Committee wanted to look at tax loophole abuses [to] see how President Trump and Jared Kushner, even though they make millions of dollars each year, pay no taxes, that’s worth learning.”

The tax returns are a major target for House Democrats. Minority Leader Nancy Pelosi, who appears set to take the speaker’s gavel for the second time in January, said in October that forcing Trump to release them would be a Democratic priority and the “easiest thing in the world.” Cummings believes Trump’s stubborn refusal to release them has further elevated their importance.

“He’s had plenty of time to do it, so why not?” he says.

Rep. Richard E. Neal of Massachusetts, who’s in line to be the next Ways and Means chairman, has told reporters he’s “intent” on requesting Trump’s tax returns. He could do so through the use of a 1924 law that allows Congress, under some circumstances, to ask for them. But Treasury Secretary Steven Mnuchin, the Cabinet official tasked with producing the records, could resist, setting off a long series of legal battles that could test the limits of executive privilege.

Full-court press

Cummings envisions a two-pronged approach to investigating Trump. He won’t shy away from investigations of Trump’s personal business dealings, whether they violate the Constitution’s emoluments clause, or implicate his presidential campaign for colluding with Russia. And he wants to probe the “harm” he says Trump has inflicted on the foundations of American democracy.

But Cummings also wants investigations into issues that affect regular people in their daily lives. Rising prescription drug prices, one of his longtime priorities, is at the top of the list. So is sabotage of the health care markets created under President Barack Obama’s health care overhaul. He’s also interested in alleged abuse by the Trump administration of the Consumer Financial Protection Bureau.

Rood, of the Project on Government Oversight, said these types of investigations are crucial if Democrats want to convince the public they’re interested in doing more than going after Trump.

“Americans expect that their food will be safe, their cars will be safe, that their bridges won’t collapse, that criminals will go to jail,” he said. “I think we’re seeing alarms go off across the federal government for programs that are going off track, not being properly administered, and no one is asking the right questions.”

Other top Democrats are eyeing their own investigations. Reps. Jerrold Nadler of New York and Adam B. Schiff of California, who are set to take charge of the Judiciary and Intelligence committees, respectively, are expected to play major roles.

A report issued by Nadler in April gives a preview of what the administration can expect from the Judiciary Committee, including oversight of election security and federal ethics compliance. Nadler may also investigate whether Trump undermined the Justice Department’s independence by removing Attorney General Jeff Sessions and FBI Director James B. Comey.

Nadler would also spearhead any effort to remove Trump from office, though he’s refrained from favoring such action unless special counsel Robert S. Mueller III produces evidence of an impeachable offense. Pelosi and Cummings have adopted the same line.

“If the evidence leads down that road, it’ll lead down that road,” Cummings said. “I want Mueller to do his job.”

Should Trump try to fire Mueller or seek to create obstacles for his investigation, Democrats will almost surely investigate. Trump’s removal of Sessions, who had recused himself from overseeing Mueller’s investigation to avoid a potential conflict of interest, “fits a clear pattern of interference,” Nadler said.

“Trump may think he has the power to hire and fire whomever he pleases, but he cannot take such action if it is determined that it is for the purposes of subverting the rule of law and obstructing justice,” the New York Democrat said in a news release. “If he abuses his office in such a fashion, then there will be consequences.”

Schiff, meanwhile, is likely to revive the Intelligence Committee’s investigation into Russian interference in the 2016 presidential election. A report issued in March by current Chairman Devin Nunes, a California Republican, and that was written and approved only by committee Republicans, found no evidence that Trump’s personal business dealings led to collusion between his campaign and the government of Russian President Vladimir Putin.

Democrats strongly objected to that GOP-only report and promised to pursue the investigation further, and now they’ll have the power to do so. The committee needs to “fully assess what areas of inquiry in the Russia investigation still require a full accounting based on a review of the extensive body of information we have collected, along with what the Senate and the special counsel have uncovered,” Schiff said.

Focus on policy

Other committees will take on policy-based probes. The Energy and Commerce’s Oversight and Investigations Subcommittee, under the anticipated leadership of Colorado Rep. Diana DeGette, is expected to hold hearings on actions by the administration that may have undermined health insurance markets. The full committee will also probe the EPA’s deregulatory efforts.

“The first thing we have to deal with is the assessing of the EPA,” said Democratic Rep. Bobby L. Rush of Illinois, who is poised to take over the Energy Subcommittee chairmanship. “We have to have hearings.”

Rep. Bennie Thompson, a Mississippi Democrat who is set to take the Homeland Security gavel, wants to investigate Trump’s ban on travelers from majority-Muslim countries and the zero-tolerance border security policy that resulted in the separation of more than 2,500 migrant children from their parents earlier this year.

Trump’s border security and immigration agenda has exposed the administration to investigations by other committees, too. Washington Rep. Adam Smith, the likely next chairman of the Armed Services Committee, may press the Defense Department to explain the military’s role on the southern border after Trump ordered the deployment of nearly 6,000 troops prior to the midterm elections.

“This is yet another unnecessary step towards the militarization of the southern border and is not a proportionate response to individuals that wish to legally seek asylum as they flee violence and persecution in their countries,” Smith said in a letter to Trump last month.

The list goes on. Nearly every committee with oversight power has its eye on some piece of Trump’s agenda. And while Pelosi has confidence in her top lieutenants, she has also warned that their investigations should remain disciplined.

“I don’t think we’ll have any scattershot freelancing,” she told reporters recently. “When we go down any of these paths, we’ll know what we’re doing and we’ll do it right.”

But reining in the more impassioned members of her rank and file could prove a constant challenge for Pelosi, especially if Trump decides to go on the attack.

The Trump defense

Trump is a new kind of adversary in Washington; one who sees personal advantage in open public conflict and shows little regard for the truth.

“I’m not exactly sure what type of ball we’re going to have to play,” said Cummings, though he notes he won’t be afraid to issue subpoenas. Since Trump took office, Cummings has on 64 occasions requested the committee issue subpoenas on a variety of topics. He has been unsuccessful each time.

Under siege by the steady flow of Democratic probes, Trump is likely to become even more combative than usual. At a Nov. 7 news conference, he vowed to adopt a “warlike posture” when dealing with investigations.

“If that happens, then we’re going to do the same thing, and government comes to a halt,” he told reporters at the White House.

The reaction is textbook Trump, said author and frequent critic David Cay Johnston, who covered the president’s rise over the course of three decades and wrote a biography of him in 2016. Trump learned the aggressive counter-punching approach from his mentor Roy Cohn, who helped Sen. Joseph McCarthy hunt down supposed Communists in the U.S. government during the Cold War.

“Roy Cohn taught him, when you’re being investigated by the government, attack, attack, attack,” Johnston said.

When Trump feels particularly exposed he’ll seek to discredit his accusers and distract the public.

“Donald does the most basic form of scientific method: Guess and test and see what works,” Johnston said. “The Democrats’ principal risk is overplaying their hand, and Trump knows this, so he will do his best to try and make it look like they’re being abusive and partisan.”

Trump has already clashed personally with some House Democrats, of course. His feud with Rep. Maxine Waters of California, who referred to the president as “the most deplorable person” she’s ever known, has made her a favorite target of conservative bloggers and pundits. Waters will control the House Financial Services Committee next year, which will allow her to probe Trump’s personal business dealings. Trump excels at exploiting his opponents’ words to be used against them, Johnston said, and Democrats “have to be careful to reel in anyone that wants to go on a diatribe or a rant.”

Party leaders know that Trump will paint anything he perceives as threatening or invasive as illegitimate. Democrats also understand the precociousness of some within their ranks, including those who are already calling for Trump’s impeachment. In a recent interview with The New York Times Magazine, Pelosi called such lawmakers the “Pound of Flesh Club.”

“That’s not who we are,” she told the magazine.

Some observers believe Trump will prove more agreeable to cooperating with policy-based investigations and working with Democrats on their legislative priorities if it means diverting attention from inquiries into his business dealings or his children.

“If it’s his money, if it’s Ivanka, if it’s Don Jr., that’s where he’s going to be focused,” Johnston said.

Joel Aberbach, a political science professor at the University of California, Los Angeles, who studies congressional oversight, said it would be advisable for Democrats “to pick things that don’t get stymied right away by total obfuscation or refusal to cooperate.”

“They have to pick their targets carefully,” Aberbach said.

Should Democrats conduct their probes in a manner that does not provoke Trump, a model for how the White House might handle the document and witness requests could be its response to Mueller’s Russia investigation.

Even as Trump has publicly — and loudly — dismissed Mueller’s probe, senior White House aides say they have sent “thousands” of pages of documents to the special counsel’s team, with one report putting the count in the “tens of thousands.”

A White House official declined to discuss how Democratic subpoenas and requests for information and witnesses would be reviewed and answered, saying it is official policy to never describe internal processes. But that official did indicate that White House Counsel Pat Cipollone would be in charge of considering and answering Democrats’ requests and demands.

Even if Cipollone opts to resist the probes and slow-walk the White House’s response, those who have taken part in both sides of the oversight process say the executive branch’s luck will eventually run out.

“I don’t think there’s a way for them to gain control of this process,” said W. Neil Eggleston, who helped Congress investigate the Iran-Contra affair during the Reagan administration and later served as White House counsel for Obama from 2014 to 2017.

To what end?

To date, Trump has remained relatively unharmed by the probes that have resulted in indictments and convictions of multiple deputies and former campaign officials, and has been remarkably resilient to the myriad public scandals plaguing him. His poll numbers hold steady. His staunchest supporters are distrustful of the institutions investigating him and have made it clear they aren’t likely to abandon him.

And Trump himself has gone a long way in trying to undermine confidence in the institutions investigating him: Mueller, the FBI and the Justice Department.

“We have a lot of phony stuff, like the Russian witch hunt garbage,” Trump told an audience of supporters in Mississippi on Nov. 26.

This raises questions about what effect investigations into his administration’s conduct could have, short of actual removal of office through impeachment, which is a long shot while Republicans control the Senate and would seemingly vote to acquit Trump in almost any trial.

Democrats calling for Trump’s impeachment argue that he has already misused his power for personal gain. In 2017, dozens of House Democrats backed an effort to force consideration of articles of impeachment. But they never gained the backing of key caucus leaders like Nadler and Pelosi.

Nadler has said any effort to impeach Trump would need to be bipartisan.

“If evidence arises that is of sufficient gravity to justify impeaching the president, and of sufficient persuasiveness to persuade people, at least by the end of the process, some of the people who voted on the other side, then you consider an impeachment, but not before,” he told MSNBC in February.

Short of impeachment or any serious legal trouble for Trump, the oversight battle could come down to who wins in the court of public opinion. Trump is a master manipulator, but the steady drip of revelations wrought by House Democrats will test his skills of distraction.

“The powers that you have to compel the other branch to do anything are somewhat limited and intentionally vague,” Rood of the Project on Government Oversight said. “So compliance by the executive branch is reliant heavily on public perception of what compliance or noncompliance may be.”

In today’s hyperpartisan atmosphere, it remains to be seen whether the results of investigations into Trump will have the power to change how voters feel about him.

“We may be at a point where people who sympathize with Trump aren’t going to accept anything as legitimate” grounds for impeachment, Aberbach said. “And people on the other side will accept almost anything.”

The White House’s response could end up the result of a political calculation aimed at elevating Trump’s chances in the 2020 presidential election.

While Trump’s “warlike posture” excites his most fervent supporters, it could also cost him in key swing states.

“They’re going to have to calibrate all the time how it’s playing not just with their base,” said Eggleston, the former Obama White House counsel, “but with independents and swing voters that either party is going to need to win.”

John T. Bennett, Andrew Clevenger, Jeremy Dillon, Lindsey McPherson, Gopal Ratnam and Todd Ruger contributed to this report.

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