The Trump administration has gone to extremes to prevent Congress and the public from investigating its actions, a matter that has been well-documented. President Donald Trump himself has fought subpoenas issued to third parties for information about his businesses all the way to the Supreme Court. Equally extreme, though perhaps less apparent to the public, were the Trump administration’s escalations of the push and pull between the executive and legislative branches regarding congressional oversight. This dynamic exists in every administration, but like so many things, Trump exacerbated it by stonewalling Congress, belittling the very idea of oversight, and seeking to actively diminish the role of the legislature as a co-equal branch of government. For its part, Congress largely failed in its attempts to push back.
Congress can and should expect more responsible behavior from the incoming Biden administration. It will not be sufficient for executive branch agencies and Congress to return to their old ways, and there is no question that the country will need a full and complete accounting of the scope of the Trump administration’s policies and the details of the Trump administration’s misdeeds. While some Trump officials will need to face a congressional and perhaps even criminal reckoning for their actions, it is likely that, for other officials, a public accounting of these misdeeds will be the only accountability they will face. A thorough and accurate accounting is vital to identify failings in our democracy that require legislative fixes and unsupported policies that need reversal, as well as for the American people to have their faith restored that corruption and abuses will not go unaddressed. As James Fallows recently noted in The Atlantic, “Modern history is replete with instances of societies that were hampered and distorted by their refusal to face difficult truths” — those truths, however difficult, must form the basis of our shared understanding of what happened during the Trump administration. That is why Congress and the Biden administration must treat this public accounting as an integral part of their actions to move the country forward.
A full release of information and a complete reckoning with the problems of the Trump administration will take time and effort. Even in a world where agencies overcome their traditional, sometimes understandable reticence to expose their inner workings to Congress, the sheer volume of information and issues to be addressed would demand organization. Below we suggest three categories of information that Congress should pursue; while each may not necessarily be of equal priority at all times, all will be absolutely necessary for a full accounting. It is worth noting that much information in these categories has already been requested by Congress, and the committee chairs in the House of Representatives recently reaffirmed their continued interest in the information they have already requested — and to which they are entitled.
Category 1: Information about potential corruption of Trump officials who are still in office or harmful policies still in effect.
While the transition to a new presidential administration means turnover in many important positions, some Trump officials with unresolved corruption issues will continue to work in the federal government – whether by the terms of their position or by “burrowing” into career jobs before the end of the administration.
Perhaps the most noteworthy administration holdover is Postmaster General Louis DeJoy, a Trump megadonor who, as postmaster general, serves no fixed term and can’t be removed by the president, meaning that with continued backing from the Postal Service Board of Governors, he could continue to undermine voting by mail and the other crucial functions of the Postal Service for years to come. The House Oversight committee has actively investigated a number of issues relating to DeJoy’s tenure as Postmaster General, as well as questions about DeJoy’s contacts with officials associated with the Trump campaign before the 2020 election. Rep. Carolyn Maloney, in her statement upon being re-elected to serve as chair of the committee, indicated her intention to continue to prioritize this work.
The season for political appointees to “burrow” into career positions is also now, and Congress must give due attention to the propriety of these hires as well as the ongoing conduct of the agencies where they work. The national security apparatus is the most high profile of the areas where we have seen this burrowing so far; Congress should examine, for example, how Michael Ellis came to be the General Counsel of the National Security Agency. But other agencies are not immune. For example, Congress should also examine how White House lawyer Trent Benishek was hired by Administrator Emily Murphy to be General Counsel of the General Services Administration (GSA). The GSA will continue to be Trump’s landlord after he leaves office, and consequential decisions like the future use of the FBI headquarters building across the street from Trump’s Washington, D.C. hotel could have an impact on Trump’s bottom line.
Congress will also need to prioritize addressing harmful policies that may continue to be in effect after the end of the Trump administration. This would include, for example, obtaining any documents or other policy memoranda related to the Trump administration’s family separation policy, and other abuses perpetrated by the Department of Homeland Security and Immigration and Customs Enforcement. Congress should also examine whether recent decisions by Attorney General Barr, newly-appointed Defense Department officials, and others have a proper basis in law and are understood by the public.
This category also includes any internal discussions or policies relating to the Trump administration’s coronavirus crisis response. Potential corruption in the coronavirus response must be examined as part of this investigation, but broader transparency is also critical. The public should be allowed to see and analyze any data that the Trump administration, through its deeply misguided attempts to downplay the scope of the threat, has kept out of public scrutiny. Releasing this information will help the public to assess the Trump administration’s response, but also to understand and then assess the Biden administration’s response: the basic role of government transparency.
Category 2: Documents that bear on potential criminal activity, corruption, or intentional mismanagement by officials who have left government and need to be held accountable, including Trump himself.
Several Trump administration officials are implicated in serious unresolved corruption issues that Congress should investigate. While not exhaustive, consider this list of issues meriting investigation: Treasury Secretary Wilbur Ross for potential conflicts of interest; Secretary of the Interior David Bernhardt for illegal destruction of records; EPA Administrator Scott Pruitt for numerous potential ethics violations; EPA Administrator Andrew Wheeler for potential violation of his ethics pledge.
Of particular concern are AG Barr’s interference with the Ukraine whistleblower investigation and his conflict of interest and interference in the Mueller investigation and in related prosecutions of Trump allies. Senior White House Advisors Jared Kushner and Ivanka Trump (President Trump’s son-in-law and daughter) also have unresolved ethics issues, such as Kushner’s planned divestiture of holdings in a real estate company after potentially receiving non-public information about COVID-19, , and Ivanka Trump’s participation in the Opportunity Zones program, which substantially benefited Kushner’s real estate company.
Trump himself, of course, has numerous corruption issues that have not been fully explored. These include the tax issues raised by The New York Times’ detailed reporting (particularly with respect to the large deduction that Congress’s Joint Committee on Taxation is, apparently, still reviewing), a wide array of actions constituting potential obstruction of justice, Ukraine-related misconduct, conflicts of interest and unconstitutional receipt of emoluments, potential campaign finance violations, and more.
Category 3: All other documents that were validly subpoenaed by Congress.
The Biden administration should reaffirm the executive branch’s duty to submit to Congressional oversight, starting by complying with all validly issued Congressional subpoenas — no matter whether the administration agrees with Congress’s assessment of the importance of the information. This does not necessarily mean handing over any and all information requested previously and in the future – but at the very minimum, it means restoring the time-honored accommodations process through which the executive branch acknowledges and seeks to vindicate the legitimate prerogatives of the legislative branch while upholding its own obligations. If the Biden administration does take these steps, it should be clear that it is not seeking to politicize transparency by releasing information about the actions of its predecessors, but rather to redress the harms from the Trump administration’s unprecedented secrecy.
Similarly, Congress must appropriately assert its oversight prerogatives, and seriously consider how to prevent itself from being in this untenable situation in the future. We at CREW have developed comprehensive proposals for how to do this, including by Congress using its power of the purse and establishing an independent counsel to pursue criminal contempt or obstruction of Congress. But however it is done, this issue critically requires Congress’s attention — the public should never be in the dark like this at the end of a presidential administration again.