In a sign of their increasing confidence about the upcoming midterm elections, Democrats in the House and Senate have reportedly begun strategizing about an investigative agenda for the 120th Congress. They are well served by doing so. If they win back the gavel this November, Democrats are guaranteed no more than two years to pursue investigations of the Trump administration and private sector. To maximize that two-year runway, Congress needs to hit the ground running with a ready-made oversight agenda that accounts for the tactics investigative targets will use when responding—particularly the executive branch, which will vigorously contest investigations by Democratic committee chairs.
Congressional Democrats are reportedly clear-eyed about the difficulties they will encounter trying to pry information loose from the Trump administration. Their realism is warranted, for multiple reasons. First, under the time-worn principle that possession is nine-tenths of the law, Congress starts every investigation at a disadvantage: the executive branch possesses the information Congress wants, generally knows more about it, and can control the pace and substance of what Congress receives. Second, if the first Trump administration is any indication, committees should expect muscular assertions of executive privilege, testimonial immunity, and other theories for withholding information from Congress.
Congressional Democrats can’t eliminate the executive branch’s structural advantage or prevent it from asserting executive privilege. Nevertheless, the choices Congress makes when deciding what and how to investigate can reduce—or, conversely, enable—executive branch stalling and stonewalling. I saw this firsthand as a Justice Department official who responded to dozens of contentious congressional investigations during the 118th Congress. Based on that experience, here are several steps congressional Democrats can take—some starting now—to counter executive branch stonewalling next Congress.
Lay the Groundwork Now
Every congressional investigator knows their work is limited by two-year election cycles. When control of Congress changes, pending investigations become legally and politically moot: congressional subpoenas are generally understood to expire when Congress adjourns for the final time, and changes in party control moot congressional inquiries as a political matter. What’s more, in the summer of an election year, committee members typically turn their attention to campaigning and away from legislating and investigating, further compressing the window for Congress to investigate.
The upshot? It’s essential for Democrats to hit the ground running on Jan. 3, 2027, which in turn requires them to lay the groundwork now. This includes identifying the issues committees will investigate, which Democrats are by many accounts already doing—but it shouldn’t stop there. Ideally, Democrats should also be pursuing investigations into those same issues now, through letters to executive branch agencies and other investigative targets.
The executive branch will take the position that the clock to respond to Democratic requests starts only when, and if, Democrats renew those requests in their capacity as committee chairs. But sending oversight requests now will give a rhetorical edge to future Democratic committee chairs, who can point to their prior unanswered demands as evidence of Trump administration stonewalling and use them to justify aggressive deadlines and expedited enforcement. For example, if House Judiciary Committee Democrats pursue an investigation into FBI Director Kash Patel’s lavish travel spending as reports suggest, they can point to letters like this one from Ranking Member Jamie Raskin as evidence they’ve been waiting over a year for answers.
Prioritize, Focus, and Follow Up
When investigating the executive branch, it’s essential for Congress to prioritize, focus, and relentlessly follow up on its requests. Why? The executive branch components responsible for fielding and responding to congressional requests—typically, agency offices of legislative affairs and general counsel—are nowhere near sufficiently staffed to keep pace with the volume of requests Congress sends.
To understand why this matters, it’s helpful to start with the process a congressional oversight demand sets in motion. When Congress sends a letter requesting documents, the recipient needs to determine where the documents reside and how to obtain them; collect and review documents to determine whether they’re responsive to the request; and evaluate whether they contain privileged or otherwise sensitive information. When Congress investigates the private sector, these steps are likely handled by a dedicated team of law firm associates and partners with access to sophisticated document review technology. In the executive branch, they likely fall to a small group of lawyers who are simultaneously responsible for responding to dozens of other document requests from the same and other committees, preparing principals to testify at hearings, and preparing other employees for closed-door briefings and interviews. There simply aren’t enough legislative affairs lawyers to keep pace with this workload, as evidenced by the hundreds of prosecutors and FBI agents who have been pulled away from their day jobs in recent months to review and process documents in response to Epstein Files-related demands.
Given this reality, the executive branch necessarily prioritizes among oversight requests—and this is where choices by Congress matter. The executive branch responds to most congressional investigations by starting with low-hanging fruit and deferring fights over sensitive information as long as possible. If a committee articulates a clear, focused set of priorities, it becomes more difficult for the executive branch to run the clock by producing documents that are technically responsive but substantively innocuous. A kitchen sink approach has the opposite effect. A multiplicity of overbroad, unfocused investigative requests enables executive branch delay and invites the executive branch to prioritize for Congress.
As one example, when House Republicans reclaimed committee gavels in the 118th Congress, the House Judiciary Committee immediately sent letters to the Justice Department and FBI renewing various requests committee Republicans had made when they were in the minority. The letters requested testimony from more than 20 officials and contained well over 100 distinct requests for documents and information, many with additional subparts. Absent further prioritization by Congress, the executive branch responds to this type of sweeping request by choosing its own priorities.
Prioritizing and focusing is easier said than done when investigating an administration that uses a flood-the-zone strategy, and the best approach will vary by committee and issue. Still, Democrats can follow a few basic rules of thumb. First, identify a discrete set of topics to investigate and don’t try to cover the waterfront. Second, make investigative requests as targeted as possible. And finally, leverage knowledge from insiders—whistleblowers, former employees, or both—who can provide valuable insight about the most important information to ask for.
Congressional prioritizing and focusing won’t prevent the Trump administration from asserting executive privilege and using other aggressive legal arguments to withhold information from Democratic committee chairs. But in cases where executive privilege-based disputes are inevitable, prioritizing enables Congress to call the question sooner, giving itself more time to pursue subpoena enforcement measures before the two-year clock expires.
In addition to prioritizing their requests, congressional Democrats should prepare to relentlessly follow up on them. Because of the resource constraints I’ve described, the executive branch generally takes a sharks-closest-to-the-boat approach to its work. A committee should not assume the executive branch is methodically working behind the scenes to fulfill its request just because the committee sent a focused letter with a deadline. It probably isn’t. Absent persistent outreach to legislative affairs staff and threats to escalate, an oversight request will stay at the bottom of the executive branch’s pile.
Prepare Now for a Battle of Precedents
Over the years, the executive branch has amassed a large arsenal of legal arguments it deploys to withhold information from Congress. This collection includes various theories of executive privilege, only some of which Congress recognizes. It also includes Office of Legal Counsel (OLC)-authored doctrines that purport to immunize high-ranking White House officials from congressional testimony and insulate other executive branch employees from testimony outside the presence of agency lawyers.
These doctrines are largely unvalidated by the courts, in part because congressional-executive branch oversight litigation is rare. Instead, the law of congressional oversight forms primarily through interbranch custom, with Congress and the executive branch alike citing their longstanding practices as precedent in oversight disputes. For example, take any Justice Department response to Congress, and there’s a good chance it cites the “Linder Letter”—decades-old correspondence laying out the Department’s longstanding position against providing certain types of information to Congress.
As it turns out, these executive branch doctrines are somewhat situational, and not as ironclad as the Trump administration is likely to argue in response to Democratic investigations. As I document in a forthcoming article, the executive branch has repeatedly deviated from supposedly longstanding positions during unified-government investigations into prior administrations. For example, the 119th Congress has seen significant executive branch cooperation with Republican investigations into the Biden administration—often contrary to doctrines the executive branch relies on to withhold information from Congress during divided-government confrontations. At the Justice Department, this has included allowing employees to appear for congressional interviews without agency lawyers present, authorizing testimony by line attorneys, and sharing information with the House and Senate Judiciary Committees about criminal charging decisions in Biden-era prosecutions.
Congressional Democrats should carefully document and track these precedents now so they can deploy them during interbranch negotiations and litigation next Congress. The executive branch will undoubtedly argue its prior concessions were voluntary accommodations that don’t prevent it from withholding information from Congress in future disputes. But as OLC itself has long acknowledged, factual precedents can drive the outcome of congressional-executive branch oversight disputes, during which “the difficulty in resisting congressional demands for information increases almost geometrically if similar information has been produced in the past.”
In addition to documenting executive branch concessions, congressional Democrats should share them across committees, which—at least in my experience as a Senate investigator—do not track these types of precedents in a centralized way. The organization Co-Equal is a good resource for some precedents, but this work should also be done by congressional committees themselves, which have more access than outside groups to relevant precedents.
Understand What Leverage Works, and What Doesn’t
During divided government, Congress needs to play hardball if it wants the executive branch to respond to its investigative demands. But not all hardball tactics are created equal. Before launching an investigation, congressional Democrats should understand the available escalation path, likely executive branch countermoves, and what tactics offer the most leverage against the administration.
When the executive branch doesn’t respond to an investigative request, a committee’s next step is generally to issue a subpoena. In some cases the executive branch may be motivated to avoid a subpoena, but in my experience the threat of a subpoena alone is unlikely to force an intransigent executive branch to give Congress what it wants. The low barriers to compulsory process in the House, where unilateral subpoenas by committee chairs are permitted and increasingly common, reduce the leverage subpoenas provide against an executive branch that has come to expect them as a routine part of the oversight process.
The threat of civil subpoena enforcement litigation is similarly baked into the executive branch’s calculus in most oversight confrontations. In theory, the prospect of an adverse judicial opinion undermining long-held institutional positions on executive privilege or testimonial immunity should motivate the executive branch to avoid litigation. In practice, the amount of time it takes to litigate, and the fact that delay benefits the executive branch in oversight disputes, means the executive branch is rarely motivated to avoid litigation at all costs. To be clear, this doesn’t mean Congress shouldn’t sue to vindicate its institutional interests, especially when an unreasonable executive branch position is ripe for challenge. But it means litigation should not be the only lever congressional Democrats pull.
Neither should criminal contempt. Contempt has played an increasing role in congressional-executive branch confrontations ever since the House held Attorney General Eric Holder in contempt during its long-running Fast and Furious investigation. The denouement of that process illustrates why even the threat of criminal sanctions provides limited leverage over the executive branch: citing its longstanding position that an executive branch official cannot be constitutionally prosecuted for contempt of Congress when the president has asserted executive privilege, the Justice Department quickly informed the House that it would not prosecute Holder. The same process played out following subsequent contempt citations during the first Trump administration and Biden administration, and is all but guaranteed to occur should congressional Democrats cite Trump administration officials for contempt.
If subpoenas and civil litigation are baked into the executive branch’s oversight strategy and the outcome of criminal contempt a foregone conclusion, what tools should Congress use to actually force compliance with its investigations? Ones that deprive the executive branch of something it wants.
For starters, Senate Democrats can leverage their advice-and-consent role. If they win back control of the Senate, Democrats can delay or block hearings and floor consideration for President Donald Trump’s nominees, as Senate Republicans did the last time control of the White House and Senate was divided. If Democrats remain in the minority, their ability to use the nominations process as leverage will be more limited: Senators have historically used holds on executive nominees to exact oversight concessions, but Republicans effectively removed this tactic from the minority’s playbook when they changed Senate rules to allow streamlined consideration of most executive branch nominees.
Congressional Democrats should also wield their power of the purse in response to executive branch stonewalling. Threats to withhold appropriations from agency programs in response to oversight noncompliance tend to make executive branch officials take notice, especially when they target operational priorities. For example, the Intelligence and Armed Services Committees periodically “fence off” an agency’s ability to access appropriated funds pending the sharing of information with Congress—a tactic exemplified by language in the most recent National Defense Authorization Act preventing Defense Secretary Pete Hegseth from accessing 25 percent of appropriated travel expenses until he disclosed unedited video of Caribbean boat strikes with the House and Senate Armed Services Committees. In my experience, threatened or actual fences and funding cuts to programs can create internal pressure within an agency that moves the dial in favor of disclosure.
Congress can also threaten the salary of agency legislative affairs personnel under the so-called “713 rider,” a recurring appropriations rider that prohibits the use of appropriated funds to pay the salary of executive branch officials who prevent other executive branch employees from communicating with Congress. In my experience, 713 rider threats are less effective than threats to programmatic funding at combatting executive branch stonewalling. In theory, the rider allows the Government Accountability Office (GAO) to direct an agency to claw back the salary of an official who interferes with Congress’s ability to obtain information. In practice, the executive branch is unlikely to follow GAO’s direction because it takes the position that the rider cannot interfere with the president’s ability to control the dissemination of confidential and potentially privileged information.
The benefit of leveraging nominations and program funding isn’t just that doing so targets things the executive branch wants—it’s that unlike civil litigation or criminal contempt, these tactics require no support from courts or the executive branch. At first glance, the same could be said for inherent congressional contempt, a long-dormant process under which Congress asserts inherent constitutional authority to fine or imprison an executive branch official. House members of both parties have attempted to reinvigorate inherent contempt in recent years, but this tool is unlikely to provide congressional Democrats much leverage. Given the executive branch’s position that inherent contempt cannot be used to punish officials who withhold information based on an executive privilege claim, any attempt to arrest or fine a Trump administration official is virtually guaranteed to end up in court.
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Congressional Democrats aren’t guaranteed to win back committee gavels next Congress, but if they do, they will need to hit the ground running with an oversight agenda that accounts for the myriad ways the Trump administration will delay and stonewall their requests. By taking steps now to prioritize and focus their investigations, marshal helpful precedents, and identify what tools give them the most leverage, Democrats can maximize their chance of success.
