• Congressional Democrats are chomping at the bit to subpoena the Trump administration now that they control the House of Representatives.
  • Likely subjects of investigation include Trump’s tax returns, his family’s business ties, the travel ban, and the military transgender ban.
  • Due to the lengthy and unreliable process of procuring information through subpoenas, Democratic sources say House committee leaders are planning a more restrained strategy of investigating Trump.

From day one, Democrat activists and lawmakers have said that President Donald J. Trump’s administration is ripe for congressional scrutiny, but with the president’s party controlling both chambers of Congress, they were unable to make significant headway on many issues. This week, however, Democrats have assumed control of the House of Representatives, and with it they now have an important new tool for exercising oversight of the executive branch: the subpoena.

The power of the subpoena has long had a constitutional basis as a salutary check stemming from the “legislative powers” granted to Congress in Article I. Over time the Supreme Court has gradually determined that it is constitutionally acceptable for Congress to seek information related to overseeing laws and federal programs — however it has taken care to specify that Congress must keep these inquires limited to “legislative purposes” rather than purely private issues.

With an administration riddled by controversy and numerous alleged scandals, the congressional subpoena is poised to take on new and unprecedented significance in the 116th Congress. As one senior Democratic source put it last year, the “subpoena cannon” is loaded and ready for action.

Issues on the table

It isn’t only Democrats that see the potential areas for embarrassment or controversy that could be unearthed by prying lawmakers. Last summer Axios obtained a spreadsheet circulated among Republican offices that meticulously listed all the investigations Democrats would likely launch if they were able to flip the House in the midterms. It included “requests for administration officials to be grilled by committee staff, requests for hearings to obtain sworn testimony, efforts to seize communications about controversial policies and personnel decisions, and subpoena threats.”

These demands, Axios concluded, “would turn the Trump White House into a 24/7 legal defense operation.”

Public sources, combined with subsequent reporting by Axios featuring intel from senior Democratic sources, tallied 85 potential Trump-related subpoena targets (click here to read the full “hit list” of Democratic targets). Of these, some of the issues most likely to see action in 2019, according to Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute, include the following:

  • Trump’s tax returns — Democrats want to find out if President Trump has had unseemly financial involvements with Russia or is hiding conflicts of interest.
  • The Trump family’s businesses ties — specifically, do they comply with the Constitution’s emoluments clause? One questionable example would be the Chinese trademark grant to the Trump Organization.
  • The travel ban — even though the substance of the ban has already been litigated and ultimately approved by the Supreme Court, Democrats will still be keen to demonstrate it was motivated by anti-Muslim animus.
  • Transgender ban for the military — currently this ban is being hashed out in court over whether the administration followed proper procedures in enacting it.

Other hot subjects, such as Trump’s alleged collusion with Russia in the 2016 election and the firing of FBI Director James Comey, are part of Robert Mueller’s Special Counsel investigation into Trump. Democrats have signaled that on these issues they are waiting on the findings of Mueller’s team.

Incoming chairs of the House Judiciary Committee (Rep. Jerrold Nadler, D-N.Y.), Intelligence Committee (Rep. Adam Schiff, D-Calif.), Ways and Means Committee (Richard Neal, D-Mass.), Oversight and Government Reform (Rep. Elijah Cummings, D-Md.), and Financial Services (Rep. Maxine Waters, D-Calif.) are all poised to make governing much more difficult for Trump, according to a recent report from CNN. Though some of these members tend to be more soft-spoken and have a record of focusing on deal-making, all have announced intentions of pressing the president for information, whether it be the release of his tax returns or his team’s ties to Russia. Some have even raised the prospect of impeachment.

The president’s key shield against congressional investigations is invoking executive privilege, which takes the form of either deliberative-process or presidential-communications. Both of these help ensure the executive branch can continue to operate effectively. This is because the president’s ability to make decisions would be hamstrung if aides and Cabinet officials avoided saying or writing something to the president out of fear it might eventually be disclosed and make them look bad.

So much to do, but so little time

Unsurprisingly, the Trump administration is expected to make use of every possible defense against Democrats’ subpoenas. As such, the greatest impediment to House Speaker Nancy Pelosi, D-Calif., and House Democrats’ subpoena assaults on the White House is time. With only two more years until Trump is up for reelection, Democratic leaders are wary of wielding their subpoena powers so aggressively that the administration claims executive privilege and tries to evade and deflect congressional inquiries while running down the clock of Trump’s time in office — even if he does win reelection.

When past administrations have refused to comply with subpoena requests, it can take years of litigation in the courts before a final ruling is reached due to constitutional questions over executive authority and the separation of powers. Sometimes these cases can drag out so long that the president or key administration officials are no longer in office, such as in 2007 when a subpoena from then-House Judiciary Committee Chairman John Conyers demanding records and testimony related to the resignation of U.S. attorneys from former White House counsel Harriet Miers. The Bush administration asserted executive privilege, and the case was not settled until after 2009 — when Bush was no longer in office.

This leaves House Democrats with difficult decisions to make about their newfound investigative powers.

“The question is, how do you enforce these subpoenas?” Irvin Nathan, who served as the top lawyer for House Democrats the last time they controlled the chamber, told NBC News last month. “You have to pick your targets. You have to prioritize and focus on the ones you really need, and where you can win public approval.”

Experts and reporters are divided over how aggressive Democrats will actually be, particularly with a seasoned lawmaker at the helm in Pelosi.

“I think (Republicans) are certainly not prepared for the death by a thousand cuts that is almost undoubtedly coming from Nancy Pelosi and House Democrats,” one source close to the administration told the Washington Examiner last month. “They are going to take every little thing they can take and use it against the president and the administration.

Around the same time, an in-depth report from NBC News suggested that rather than taking a “T-shirt cannon” approach of firing off subpoenas right off the bat, key House committees are planning a more restrained, deliberate strategy. Officials involved said they will start with specific requests for information from lower-level bureaucrats and Trump officials that may be more prone to comply.

Republican lawmakers, who have largely shielded the White House from subpoenas during the first two years of Trump’s presidency, have been calling for Democrats to work with the president to pass legislation rather than bogging down the process — and the news cycle — with investigations of Trump and his affiliates.

“My advice would be: Legislate, don’t investigate, if you want to be rewarded with the continued opportunity to be in control of the House of Representatives,” Sen. Roy Blunt, R-Mo., said on “Meet the Press” last month.

“If (Pelosi) wants to spend two years in investigations and possibly an impeachment proceeding, that’s going to make it very, very difficult to get anything done, other than what we absolutely have to get done like the debt limit and passing a budget,” Sen. Rob Portman, R-Ohio, told the Washington Examiner last month. Portman added that though Pelosi may have more of an instinct to look for opportunities to find common ground, compromise, and pass legislation with Republicans, her party’s freshman class of enthusiastically anti-Trump lawmakers could make such dealmaking difficult.

Should Democrats take a subpoena-heavy approach, the partisan gridlock in Washington could get even more intense, as Trump has vowed to go blow for blow with any investigations launched against his administration.

“If the Democrats think they are going to waste Taxpayer Money investigating us at the House level, then we will likewise be forced to consider investigating them for all of the leaks of Classified Information, and much else, at the Senate level. Two can play that game!” the president tweeted in November.

Image Credit: “Nancy Pelosi” by Gage Skidmore is licensed under CC BY-SA 2.0

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