Congressional Oversight and the Trump Gag Order

by John Lawrence

Oversight has long been a crucial, if irregularly utilized, obligation of the Congress. While most people know that subcommittees and full committees hold hearings on policy issues that necessitate examination and on specific pieces of legislation, they also are charged under House and Senate rules with scrutinizing whether the Executive Branch is implementing laws consistent with Congressional intent. “If any realm exists in which [Congress] can be autonomous and consequential, it is in the realm of investigation,” observed political scientist David Mayhew. Between 1947 and 2010, Congress conducted 1,137 investigations, with the House emerging as the more aggressive chamber after 1974.

Not surprisingly, an adversarial relationship often exists between the Legislative Branch that writes the laws and the Executive Branch that administers them. When Congress decides to probe the operations of the Executive Branch departments and agencies, calling officials to testify and subpoenaing documents, the bad blood between the branches can heat up quickly.

The frequency and tenor of oversight is frequently related to the partisan relationship between the White House and the Congress, particularly the House. When government is divided, the partisan probing is particularly aggressive: think Benghazi, Lewinski and Wall Street circa 2008. When the same party controls both branches, congressional interest in performing its oversight function has a way of fading dramatically. Republicans showed little interest in scrutinizing the decisions leading to the Iraq War when George W. Bush was president, and Democrats were unusually quiescent during the first two years of the Obama presidency, when they were in the majority. Only rarely, in the case of inescapable meltdown – Watergate comes to mind, as do the inquiries into the Titanic sinking and the Challenger explosion – is oversight largely bipartisan.

As with so many features of traditional Washington behavior, the rules of the game are changing under President Donald Trump. Not surprisingly, the Republican majority has been loathe to launch inquiries into innumerable peccadillos (and worse) committed by the Trump Administration, any one of which, if committed by the Obama Administration, would have sent GOP inquisitors into paroxysms of sleuthing.

House and Senate Democrats are losing their patience with the Republicans’ meager deployment of oversight, and they are sending their own detailed inquiries to agencies demanding information and answers. Lacking the ability to issue a subpoena (the power to do so rests with the committee’s majority and sometimes, just the chairman), Democrats have to count on the good will of the Executive Branch to honor their request for data.

Fat chance. Now, to be fair, Bill Clinton and Barack Obama slow-walked the informational requests of Republican minorities. Mitch McConnell and other GOP senators often obstructed confirmation votes in response to the unresponsiveness of Obama bureaucrats. But now the Trump Administration has issued explicit instructions to departmental officials to decline to comply with requests for information from Democratic lawmakers. According to recent reports, Uttam Dhillon, a lawyer on the White House staff, directed agencies “not to cooperate with such requests from Democrats.” The source of this revelation: “Republican sources,” who affirmed that the goal is “to choke off the Democratic congressional minorities from gaining new information that could be used to attack the president.”

It probably should not come as a huge surprise that, in response to the criticism this directive has unleashed, the civics-challenged Trump White House sought to assure critics that the Administration would respond to “the requests of chairmen, regardless of their political party.”

Note to Trump White House: there are no Democratic chairmen. Yet.

It is easy to get up on a partisan high horse on this issue, but the truth is that all administrations are loathe to turn over documentation to political adversaries who sometimes are on fishing expeditions. But the Trump clan seems to have elevated common practice to formal White House policy, and the damage done by this unresponsiveness compounds the circle-the-wagons paranoia prevalent in the embattled White House.

Refusing to hold the Administration accountable is far from the only example of the Republican leadership backtracking on pledges in their administration of the House. During their 2010 to regain the majority, House Republicans promised to return to “regular order”: committees, where debate is open and amendments are unrestricted, would develop legislation instead of having it dictated by the leadership. (This promise was a response to a bogus charge about the way Democrats had written the 2009 stimulus, health care and Wall Street reform laws. In fact, all were developed in committees, subjected to extensive hearings and mark-up sessions in which Republicans were fully engaged.) No legislation, John Boehner promised, would come to the floor without having been open for scrutiny for at least 72 hours. No Member would have to vote on a bill they had no had the time to read.

Of course, all these promises have been broken. Committees now are largely inactive; hearings on policy development are few and far between; bills, like the atrocious ACA revision never endured a minute of hearings, testimony, or committee debate or mark-up. In the case of the ACA revision, virtually no one knew what was in the constantly morphing bill, and absolutely no one knew what it would do, or how much it would cost when they voted on it. So much for the promised “regular order” which often is dispensed with when vote margins are tight.

Now Speaker Paul Ryan and his Republican majority must decide whether they will kowtow to an Administration that displays open defiance to their Democratic colleagues’ requests for information. After all, there is more than partisan politics at stake; the interests of the institution of Congress are also on the line.

If the Republicans refuse to stand up for the minority, and the tens of millions of Americans they represent, at least Ryan should clearly affirm the right, and responsibility, of Congress to conduct oversight, a crucial and hard-won power of the Legislative Branch. This week’s Senate hearing with James Comey stands in sharp contrast to the continued stonewalling by House investigators who are protecting Trump and his hapless team. Unfortunately, Ryan and a substantial portion of his Caucus are content to ignore Mayhew’s standards of being “autonomous and consequential” by conducting serious oversight. As with their abysmal record of non-legislating, if this inaction elevates public disdain towards government, they have achieved their goal, and the Congress and the country are the worse for it.