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Congressional Oversight in the Trump Era: Strategic Choices

Republican congressional leaders face stark strategic choices as Donald Trump assumes control of the White House. A period of acrimonious divided government will be supplanted by unitary Republican control. And the political salience of casting President Barack Obama and Secretary Hillary Clinton as the cause of real and imagined government failures will evaporate as Republicans control both ends of Pennsylvania Avenue. One of the great open questions is how Congress will use its oversight power in the Trump era. Will congressional oversight institutionally check an unprincipled executive, shape the policy environment for a presidential partner, or double down on cultural resentments and division?

Strategic Choices

It is difficult to predict the tenor of relations between the White House and Congress at the outset of an institutional Republican’s or Democrat’s administration. Predicting congressional-executive dynamics at the onset of the Trump era is fraught with variables unique to him. Trump is a volatile disruptor. He has no government or governing experience at any level. Beyond the fundraising circuit and his campaign, Trump is an outsider without working relationships in Washington. As for policy, he is notoriously opaque, comprised of equal parts blank slate, self-contradiction, and bluster. Even his signature issues—say, The Wall or the Muslim ban— rhetorically shift across news cycles. Without benefit of traditional news conferences and press access, members of Congress and other members of the policy community have limited ability to nail down Trump’s positions. That kind of uncertainty will increase anxiety on the Hill. 

Trump also regularly demonstrates contempt for political norms. This could create new lines of friction with Congress. In addition, certain types of controversies—such as Trump administration conflicts of interest or foreign infiltration into executive branch operations—would call for congressional investigation.

Congress, too, presents difficulties. Congress is defined by its multipolarity. It contains multitudes and rarely acts as a single body in matters of oversight. Rather, Committee chairs will have latitude to deploy oversight powers to pursue parochial interests. However, leadership will surely be involved whenever there is significant daylight between the GOP Congress and the Trump White House.

With those limitations in mind, here are a few potential approaches Congress could take with its oversight power:

  • Promote Trump’s Agenda: Congress could use its oversight powers to help build a case for the Trump Administration’s agenda, holding hearings designed to bolster arguments for a border wall, immigration restrictions, trade restrictions, or other agenda items. The X factor here, however, is that some of Trump’s rhetorical proposals contradict Republican policy orthodoxy (e.g., free trade and Russian antagonism).
  • Promote Ryan’s Agenda: The House will likely use oversight hearings and investigations to promote Speaker Paul Ryan’s agenda of tax cuts, regulatory repeal, and social safety net rollbacks.
  • Defend Republican Orthodoxy: Republican committee chairs may wield their gavels in an effort to defend traditional policy positions where Trump has shown hostility to them. Free trade is the most obvious example, but there are others.
  • Check the Executive: Congress may reassert itself vis-à-vis the Executive in the face of Donald Trumps’ disruptive approach and out of fear of executive branch overreach. I am not optimistic that Congress will naturally adopt an antagonistic executive-checking posture in a period of single party rule. For example, the long-standing inaction on any congressional authorization to use force against ISIL suggests that principle alone—without political incentives— will not drive congressional action. Therefore, I would anticipate Congress’s willingness to act as a check on the Executive Branch will be directly proportional to the political toxicity of the Trump presidency for members of Congress.
  • Advance Parochial Causes: Speaker Tip O’Neill famously quipped that “all politics is local.” Congressional oversight is not readily associated with constituent politics, but the best oversight practitioners have managed to craft agendas that work well at home while creating a national profile. Oversight tailored to members’ local interests is a regular element of committees’ congressional oversight agendas.
  • Amplify Cultural Resentment: This approach is the opposite of executive branch oversight. I call it the “full Bannon.” It is one of the potential horribles of the Trump era that keeps me up at night. One way to deflect accountability for a government under monopoly Republican control is to scapegoat vulnerable populations. Rather than take responsibility for a bad jobs report, blame immigrants or labor unions. Rather than address intelligence failures in the face of a terror attack, blame Muslims. Rather than own up to a law enforcement failure, blame Black Lives Matter activists or fan the flames of racialized crime hysterias. Breitbart has created a playbook full of resentment-generating attacks. The question here is whether congressional committee chairs will use their investigative powers to amplify that kind of effort. Congress disgraced itself during the Red Scare. I hope that chapter is over, but I have grave concerns given the tenor of the 2016 election.

The 115th Congress will likely display some elements of all of these approaches. However, we will quickly get a sense of the overall oversight strategy.

Early Indicators

The House’s first act—de-clawing the Office of Congressional Ethics (OCE)—is a bad sign for congressional oversight and government accountability in the Trump era. In the wake of the Jack Abramoff scandal, Democrats created Office of Congressional Ethics when Nancy Pelosi became Speaker in 2008. (Before Trump appropriated it, Pelosi’s slogan that campaign cycle was “Drain the Swamp.”) Rep. Bob Goodlatte (R-Va.), Chairman of the House Judiciary Committee, introduced the proposal, which would allow the member-led House Ethics Committee to direct OCE to cease an investigation, would preclude OCE from publishing information about its investigations, and bar OCE from referring matters to the Department of Justice. It is difficult to imagine the House GOP will investigate the Trump administration’s myriad conflicts of interest as it removes the independence of the organization responsible for policing congressional conflicts of interest.

In addition, as it did in 2015, the House will go through a formal oversight planning process in January. That will be another early indication of the House leadership team’s choices.

For structural and political reasons, the Senate will be the most likely venue for antagonistic and penetrating oversight of the Executive Branch during the Trump era. Individual Senators have more institutional power than House members. In addition, the GOP’s margin of majority is much narrower: 52-48. A number of Republican Senators openly feuded with Trump during the last cycle (e.g., Senators Ben Sasse (R-Neb.) and Jeff Flake (R-Ariz.)). An additional number of Republican Senators ran against Trump in the primaries (e.g., Senators Ted Cruz (R-Tex.), Lindsey Graham (R-S.C.), Rand Paul (R-Ky.), and Marco Rubio (R-Fla.)). The lack of love lost between Trump and Senator John McCain (R-Ariz.) is well documented. Senator Susan Collins (R-Me.) did not vote for Trump, and will have political incentives to show independence from Trump to her Maine constituents. It is easy to imagine that a handful of Senators (or prominent House GOP members) will be contemplating contesting Trump in a Republican primary a few years from now. All of these lines of tension mean that there will likely be an appetite for aggressive oversight by some Senate Republicans if the situational politics create space for it. Very few GOP Senate seats are in play in 2018, which will insulate many Republicans from immediate backlash from Trump’s base but will also attenuate broader political incentives to stand up to an unpopular President.

Moreover, the Senate’s role in confirmation of presidential appointments creates a forum for oversight drama. It also gives the Senate significant oversight leverage. In other words, the Senate has greater ability to extract documents from nominees and the administration in the context of nominations than it could if the status quo benefited the Executive Branch.

This week, Senator McCain will chair an Armed Services hearing on Russian interference in the 2016 election. Witnesses include Director of National Intelligence James Clapper, National Security Agency and Cyber Command Chief Admiral Mike Rogers, and Undersecretary of Defense for Intelligence Marcel Lettre. It will be interesting to see how much information is publicly aired and whether this signals the beginning of a Senate investigation or merely a show hearing. The latter might involve a kabuki theater rather than the deep dive warranted.

In another era of political paranoia, Joseph Welch offered his famous takedown of the Sen. Joe McCarthy (R-Wisc.) on the thirtieth day of the Army-McCarthy hearings: “Have you no sense of decency, sir? At long last, have you left no sense of decency?” Will Congress choose decency? Check the Executive? Engage in business as usual? Aid and abet scapegoating? We’re about to find out.

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About the Author

Professor at Savannah Law School, Former Associate Counsel to the President in the White House Counsel’s Office Follow him on Twitter (@AndyMcCanse).