What Would National Security Oversight Look Like in a Democratic House?

If Democrats assume control of the House of Representatives after the midterm elections, what should we expect in terms over congressional oversight? There is a wide range of potential items that could be investigated by committees with substantial oversight jurisdiction in matters of national security, foreign affairs and homeland security. One thing is sure though, if the Democrats take over, there will be a torrent of oversight activity.

Here, I outline what shape the Democratic oversight agenda could take, noting that this exercise is by nature speculative, starting with a wholly uncertain election outcome—House Democrats are assiduously avoiding acts that could be construed as drape-measuring during this hard-fought midterm campaign season. And, of course, any speculative piece cannot account for new issues that may arise, especially in the blistering pace of news cycles in the Trump era. For example, in just the past week, new questions have arisen about what U.S. intelligence knew when about the disappearance and alleged murder of Saudi journalist Jamal Khashoggi, an area of inquiry that House Democrats may add to their already long list.

For this analysis, I have assumed that, absent an announced retirement, a committee’s current Democratic ranking member will assume the chair, and that is not always the case during the hungry hippos phase of leadership votes and committee assignments. (Two examples: Rep. Henry Waxman (D-Calif.) staged a committee leadership coup in 2009 to displace Rep. John Dingell (D-Mich.) as chair of the House Energy and Commerce Committee, and Rep. Elijah Cummings (D-Md.) rose to lead the Democrats in the minority in 2011 after Rep. Ed Towns (D-N.Y.) had chaired the House Oversight and Government Reform.) And, the House Permanent Select Committee on Intelligence (HPSCI) is entirely a creature of appointment by the Speaker of the House, so if someone other than Rep. Nancy Pelosi (D-Calif.) ascends, that could materially alter those dynamics. I have organized this preview by committee, with references to jurisdiction, personnel and potential agenda items.

House Oversight and Government Reform Committee (HOGR)

While it has some limited legislative authority, HOGR is the principal investigative committee in the House, designed to conduct penetrating, interdisciplinary oversight. House Rule X provides that HOGR has authority to investigate the subjects within its legislative jurisdiction as well as “any matter” within the jurisdiction of any other standing committee of the House. While there may be informal constraints on that jurisdictional scope that flow from House leadership’s jurisdiction refereeing of other committees’ claimed turf, the only formal limitation on it is HPSCI’s exclusive jurisdiction related to oversight of intelligence sources and methods.

HOGR’s unique jurisdiction allows it to look at issues that cut across agencies of the government in a way committees with narrower jurisdiction might not. This can be particularly important in the area of national security and foreign affairs, where many U.S. overseas operations hinge on bringing the full complement of diplomatic, military, intelligence and foreign development power to bear.

In addition, HOGR jurisdiction provides a hedge against the risk of “clientitis.” Some agencies end up in a symbiotic relationship with their authorizing or appropriating committees due to regular, even yearly, legislative authorization cycles. Natural incentives to cooperate on the legislative side can dampen the investigative zeal on the oversight side. Thus, HOGR’s jurisdiction was established in order to provide the House with some additional institutional independence from the executive branch agencies.

Cummings is in line to become chair should the Democrats win back the House in November. He has an experienced staff led by alumni of former congressman Waxman, who was an oversight juggernaut when he was in office. I would anticipate a gush of activity from this committee early in the new Congress.

Based on the HOGR Democrats’ publicly released press releases, staff reports and correspondence, one could expect national security and rule of law investigative activity to commence on:

  • Hurricane Maria response: During a Brookings Institution panel on congressional oversight in October, Cummings lamented, at length, about his Republican colleagues’ lack of willingness to investigate the disaster response to Hurricane Maria and its devastating effects on Puerto Rico. He compared the hundreds of thousands of Bush administration documents reviewed under then-chair Rep. Tom Davis (R-Va.) after Hurricane Katrina ravaged New Orleans in 2005. I anticipate that will be one of his major priorities should he become chairman.
  • Russian interference in the 2016 election: A congressional investigation into Russian interference in the election that would have HOGR’s interagency perspective.
  • Insulation of the Russia investigation from political interference: As news spread that Rod Rosenstein could be ousted as deputy attorney general, Cummings called for an emergency hearing. Cummings, along with Rep. Jerrold Nadler (D-N.Y.) who serves as ranking member of the House Judiciary Committee, denounced President Donald Trump’s decision to declassify information related to the Russia investigation.
  • Executive branch corruption: Trump administration ethics and conflicts of interest, including issues related to national security personnel appointments.
  • Executive branch record keeping: HOGR has traditionally conducted oversight of White House compliance with the Presidential Records Act and agencies’ compliance with the Federal Records Act. There have been reports of potential PRA violations, and Democrats are sure to seek to obtain insight into record keeping practices at the Trump White House.
  • Security clearance processes at the White House and beyond: Democrats called for subpoenas for documents related to the revocation of the security clearance held by former CIA director John Brennan, as well as the granting of a clearance to National Security Advisor John Bolton in light of his apparent connections to Mariia Butina, who was indicted recently as a Russian intelligence agent.
  • Political retaliation at State: Allegations of political retaliation against State Department career employees for involvement in policies associated with the Obama administration, including the Iran nuclear deal negotiations.
  • Safeguarding democracy: Election protection, including threats posed by foreign adversaries like Russia.

House Permanent Select Committee on Intelligence (HPSCI)

The Democrats have been ably led by Rep. Adam Schiff (D-Calif.), and I anticipate he would be a strong HPSCI chair. However, HPSCI has been beset with partisan acrimony under Rep. Devin Nunes (R-Calif.), an unfortunate trend that would likely continue should Nunes become Ranking Member. House Rule X, clause 3(m) charges that HPSCI “shall review and study on a continuing basis laws, programs, and activities of the intelligence community and shall review and study on an exclusive basis the sources and methods” of intelligence operations. (Emphasis added).

HPSCI is such a secretive committee that there will be a lot of oversight activity that occurs behind the scenes, so we will not get a full accounting of the Democrats’ agenda. But based on the HPSCI Democrats’ publicly released press releases, staff reports and correspondence, one could expect national security and rule of law investigative activity on:

  • Intensifying the HPSCI Russia investigation: Committee Republicans have sharply circumscribed the scope of the inquiry, blocking evidence collection and refusing to use subpoenas and contempt powers—to compel recalcitrant witnesses from providing information or defending unsupported claims of privilege. With subpoena power, Democrats will likely return to refusals to answer questions during committee appearances by Trump advisers Hope Hicks, Corey Lewandowski, and others. Schiff also complained that the committee failed to subpoena phone records of a blocked call to Donald Trump, Jr. around the June 2016 meeting with Russians promising to deliver dirt on Hillary Clinton.
  • Protecting the Mueller investigationLike HOGR, HPSCI will likely seek to ensure Special Counsel Robert Mueller’s team has the insulation necessary to conduct its investigation without undue political interference. For example, Schiff will likely shine a light on Trump’s use of declassification authority to undermine the investigation.
  • The president’s decertification of compliance with the Iran nuclear dealOne of the oversight issues here is whether the president’s message to Congress included misrepresentations about the status of Iran’s compliance with the Joint Comprehensive Plan of Action (JCPOA).
  • IC oversight: The utility and abuse of Intelligence Community surveillance authorities, including pressure on the president to fully resource and staff the Privacy and Civil Liberties Oversight Board (PCLOB).
  • Cybersecurity: Foreign state-sponsored cyberattacks on American public and private infrastructure and organizations.
  • Other foreign election interference: HPSCI Democrats asked for a briefing on any intelligence to support Trump’s claim that China has attempted to influence the midterm election. There is also room for responsible inquiry into the Obama administration’s failure to identify the magnitude of Russian active measures early enough or effectively combat them during the 2016 election cycle.

Other issues worthy of oversight if they have not otherwise been addressed behind closed doors:

  • The compromise of a U.S. intelligence network in China that led to a death and disappearances of numerous human sources.

House Armed Services Committee (HASC)

Rep. Adam Smith (D-Wash.) leads the HASC Democrats. House Rule X(1)(c) defines HASC’s jurisdiction. Under HASC rules, the committee claims “exclusive jurisdiction” of a number of big ticket items, including:

defense policy generally, ongoing military operations, the organization and reform of the Department of Defense and Department of Energy, counter-drug programs, security and humanitarian assistance (except special operations-related activities) of the Department of Defense, acquisition and industrial base policy, technology transfer and export controls, joint interoperability, detainee affairs and policy, force protection policy and inter-agency reform as it pertains to the Department of Defense and the nuclear weapons programs of the Department of Energy.

HASC also has some concurrent jurisdiction with HPSCI’s non-exclusive jurisdiction over military intelligence matters, described as “intelligence policy (including coordination of military intelligence programs), national intelligence programs, and Department of Defense elements that are part of the Intelligence Community.”

Based on publicly available information, I anticipate these areas of oversight emphasis:

  • Overseas combat operations: The U.S. military is engaged in active combat operations around the world—Afghanistan, Syria, Yemen, the Horn of Africa—largely pursuant to the nearly unbounded 2001 AUMF. These operations give rise host of oversight issues related to the use of force, law of armed conflict, resource strain, wartime contracts, and military health. I anticipate the U.S. military nexus to the humanitarian crisis in Yemen will be a particular area of emphasis.
  • Today’s national security threats: The Democrats will surely explore geopolitical military threats posed by Russia and China, as well as NATO’s role as a hedge. I anticipate HASC Democrats will scrutinize Trump’s perplexing posture on these issues.
  • Nuclear powers: The nuclear threats posed by Iran and North Korea, and related issues related to Trump’s repudiation of the Iran nuclear deal, as well as his embrace of North Korean leader Kim Jong Un.
  • Detainee and interrogation matters: The Department of Defense continues to hold executive wartime detainees at Guantanamo and other facilities. Expect Democrats to make this a focus of oversight.
  • Military nexus to border security and immigration policy: HASC Democrats would likely have a sustained focus on Trump’s efforts to divert military resources to his hardline border policies, including the infamous “wall,” as well as using Department of Defense facilities to house immigrant children.
  • Space Force: Smith opposes Trump’s Space Force proposal, along with other Democratic and Republican lawmakers, so that would likely be dead on arrival with Smith as chair. One would also anticipate he would wield the oversight tools in support of that policy position by convening hearings designed to highlight the proposal’s high costs, added bureaucracy and limited utility.

House Foreign Affairs Committee (HFAC)

Under House Rules, HFAC has primary jurisdiction over the State Department, U.S. Agency for International Development (USAID), the Peace Corps, and other entities with diplomatic or foreign assistance authorities. It is also the primary committee for purposes of war powers, sanctions, treaties, international organizations, arms control and arms sales. Rep. Eliot Engel (D-N.Y.) leads the HFAC Democrats. This would be his first time as full committee chair because Rep. Howard Berman (D-Calif.) led the Democrats until he lost reelection in 2012.

HFAC is always a critical forum for foreign policy issues, and it conducts routine oversight hearings. But it has not always made investigative oversight a priority. Should the Democrats assume control of the committee, I would like to see HFAC build out its oversight capacity. One concrete step it could take immediately would be to reconstitute its oversight and investigations subcommittee like other full committees such as HASC have established. In addition, Engel should hire some additional oversight specialists—such as former prosecutors, internal investigations lawyers, and investigative journalists—to enhance HFAC’s in-house investigative capacity.

Engel has long been a supporter of recognizing Jerusalem as the capital of Israel, so Trump’s actions on that front will likely not be a line of tension even with HFAC under Democratic control.

  • Russian aggression: Engel called for an investigation into Trump’s summit with Russian President Vladimir in Helsinki in July to find out what exactly was said behind closed doors, a conversation shrouded in mystery several months later.
  • Genocide in Myanmar: The Rohingya humanitarian crisis will be an area of oversight focus.
  • The international order: The Trump administration’s retreat from international treaties and agreements as well as hostility to international legal regimes.
  • Sanctions policy: Engel has been critical of the Trump administration for indiscriminate use of sanctions without a larger strategy. As for Russia sanctions, Engel called them a “band-aid on a bullet wound.”
  • Going to war: The legal basis for use of force in Syria, Yemen and other theaters of combat.
  • Khashoggi fallout: The U.S. policy ramifications of allegations that Saudi Arabia assassinated journalist and regime critic Jamal Khashoggi, a lawful permanent resident of the United States, in the Saudi consulate in Istanbul, Turkey.
  • Consular services in relation to Trump’s anti-immigrant policies: Issues such as groups from El Salvador, Honduras and Haiti for whom Trump has revoked Temporary Protected Status. HFAC can also investigate the child separations through the State Department lens.
  • Citizenship controversies: There have been disturbing reports that the State Department is denying U.S. citizens passports along the U.S. border with Mexico. Democrats will surely follow up on their suspicions that President Trump is discriminating against Hispanic-Americans.

House Homeland Security Committee (HHSC)

Created in the wake of 9/11 and the establishment of the Department of Homeland Security (DHS), HHSC is the newest permanent standing committee in the House. Its legislative and oversight jurisdiction spans all of the disparate agencies that were cobbled together to create DHS. As such, it also shares a lot of jurisdictional overlap with other committees, so there may be parallel investigations as well as some committee turf tensions. Rep. Bennie Thompson (D-Miss.) continues to lead the Democrats after having served as HHSC chair during the Pelosi speakership.

In many ways, HHSC is on the front lines of the most controversial Trump administration policies. It will be busy. Here are a few of its likely oversight priorities under Democratic control:

  • Trump’s immigration policies: Trump’s proposed border wall, the travel ban, the Dreamers, dragnet immigration enforcement, and family separations and other consequences of the Trump administration’s “zero tolerance” policy at the border. The administration’s shifting of appropriated funds to pay for that policy without specific congressional authorization will be included in that inquiry.
  • Election securityThis will continue to be a priority for HHSC Democrats.
  • Disaster response: HHSC, like HOGR, will likely bring a sustained oversight focus to disaster response in the aftermath of Hurricane Maria.
  • Spying on reporters: The committee will also likely focus on various DHS surveillance
  • Politics at DHS: HHSC Democrats will likely investigate reports of undue political interference in law enforcement decisions by agencies housed at DHS.

House Judiciary Committee (HJC)

Under the House Rules, HJC has oversight jurisdiction over federal courts, the Department of Justice and other enforcement mechanisms of federal criminal law, and immigration policy (including “non-border enforcement”). Nadler assumed the ranking member role after Rep. John Conyers (D-Mich.) stepped down amid a #MeToo scandal. Nadler has promised a robust oversight agenda should he become chair.

Under Nadler, I anticipate HJC will aggressively pursue these lines of oversight:

  • Political interference with the Department of Justice: While that inquiry would naturally begin with White House (and Republican HJC members’) efforts to undercut the Russia investigation, in HJC it would extend to Trump’s public commentary on high-profile antitrust matters. This legislative inquiry could be done in the service of legislation protecting the special counsel.
  • Immigration: The Trump administration’s zero-tolerance immigration policies, including family separations and the travel ban.
  • Trump’s pardons: Trump’s use of the pardon power to benefit political allies and influence investigations in which he has equities.
  • Civil rights:The Trump administration’s about-face on civil rights, including police brutality and affirmative action.
  • Revisiting Kavanaugh: Nadler has promised an investigation of Justice Brett Kavanaugh’s alleged sexual misconduct, as well as his lack of candor during Senate confirmation hearings.

A special note about impeachment:Under the Democrats, it is possible that oversight investigations—particularly those related to Kavanaugh and Trump—could transition into impeachment inquiries. House Judiciary would be the likely forum.

The Constitution provides the House the power of impeachment and the Senate the power of conviction and removal from office An impeachment resolution can be introduced by an individual member as a privileged motion, but impeachment resolutions with momentum have traditionally been reported out of the committee with relevant jurisdiction over the position at issue, as either privileged business or as a special rule passed out of the House Rules Committee. Some Republicans in the House have been pushing for an impeachment of Deputy Attorney General Rod Rosenstein, which would implicate the HJC, and at least one Democratic member’s impeachment resolution targeting Trump was referred by Republicans from the House floor to the HJC as a defensive procedural move. HJC considered the Nixon impeachment, and the committee’s jurisdiction over federal courts has also made it the traditional forum for judicial impeachment inquiries.

#          #          #

Other committees—such as those that deal with appropriations, science and technology policy, and energy— will also touch on national security and foreign affairs issues. But the national security committees listed above will be where most of the oversight and investigative activity is likely to take place. And those oversight cups runneth over.

Photo by Mark Wilson/Getty Images

 

About the Author(s)

Andy Wright

Senior Fellow and Founding Editor of Just Security, former Associate Counsel to the President in the White House Counsel’s Office. You can follow him on Twitter @AndyMcCanse.