Have Democrats Forgotten How to Do Oversight?

August has arrived, and not a moment too soon for the Democrats of the House of Representatives. Imagine them making the most of it. Picture this recess as their chance to examine past mistakes and present circumstances and to ask themselves, now that their dream of a deus-ex-Mueller has been dashed, how they might finally begin to use their own powers—the powers of the unit of government they control—to illuminate the crimes, misdeeds, and maladministration of Donald Trump, his family, his campaign, and his gang of appointees and accomplices.

Let us certainly hope that question is on their minds. Meanwhile, I have posed it to a range of experts on congressional oversight, and their answers add up to something like a consensus judgment on how the Democrats should and shouldn’t proceed.

One key shouldn’t: They should not see their task simply as one of picking up the package of evidence handed to them by Robert Mueller and continuing to pursue the case he was either unable to nail or unwilling to state. Mueller felt bound to define his investigation narrowly, sticking to the trail of a potential Trump-Russia plot to meddle in the 2016 elections and adjacent offenses. The House, my panel of authorities agrees, needs to define its investigation broadly, as an inquiry into the bigger and more basic problem of kleptocratic corruption—of self-enrichment, crony enrichment, and betrayal of the public trust.

That rich realm encompasses three sub-territories. The first consists of all the areas where the Trumps have tried to turn the presidency to personal profit, whether by sneaking a $60 million real-estate developers’ tax break into the Republican tax package; getting government entities, contractors, and supplicants to purchase overpriced lodgings at Trump properties; or doing whatever they did with the $100 million supposedly raised for the inauguration ceremonies. In the second zone lie the various members of the president’s circle who, following his lead, have taken financial advantage of official positions or Trump ties. That domain blurs over into a third, in which we find the galaxy of federal departments and agencies that, thanks to the strategic placement of industry lobbyists and corporate insiders in the decision-making ranks, now routinely bow down to corporate interests at everybody else’s expense.

Plain old money corruption is the recurring theme everywhere in Trumpworld, his dealings with Russia included. He signaled as much in July 2017 when he warned the newly named special prosecutor (via an interview with The New York Times) that the Russia probe would cross a red line if it touched on Trump’s finances. That was surely the concern behind the “I’m fucked” rant memorialized in the Mueller report: Trump had every reason to expect a Russia inquiry to morph into a financial inquiry because, of course, he drew no such line himself. Although Mueller wound up chronicling acts that bordered on subversion, any loyalty to a foreign power was incidental: The real goal for Trump and the aides, agents, and hangers-on in contact with shady Russians during the campaign and transition was to make money.

In Trump’s case, the immediate loot was supposed to come from a real-estate boondoggle in Moscow. But he had also developed a taste for Russian financing when past sources had run dry. “After multiple bankruptcies in the 1980s and ’90s, Trump turned to Russian oligarchs and crime figures for a ready supply of cash,” Representative Jamie Raskin pointed out to me. “They were looking for ways to launder and safeguard money looted from the former Soviet Union.” Those transactions and thoughts of more like them appear to have been the original source of Trump’s desire to cozy up to Vladimir Putin, and in that sense, they drive U.S. Russia policy today.

Democrats, Raskin and others say, should rethink the aim as well as the subject matter of their inquiry. A scholar of constitutional law by trade (a former professor of same at American University’s law school), Raskin has no doubts about the impeachment-worthiness of credible allegations already on record. But regardless of what the House decides about impeachment or how long it takes to decide, it is time, he says, to concentrate on points of fact rather than law, and to lay out the facts to “tell a coherent and digestible story to the American people about how the president’s campaign and administration have both been money-making operations from top to bottom.”

Storytelling must be the mission. And the story has to go beyond the act of corruption, says Paul C. Light, an oversight specialist and professor of public service at New York University; it needs to include the injury to government’s ability to do right by everyday people. “There’s a lot of outrage in the Democratic bloodstream,” Light says. “Unfortunately the House has not paid much attention so far to the effects of Trump’s corruption. Why does it matter to the American people? How does it affect your pocketbook or your children’s future? Who’s he robbing?”

Eight years in the minority have sapped the Democrats’ supply of oversight know-how. One of the party’s past masters of the art, former Representative Henry Waxman, counsels persistence and a willingness to “hit the same point over and over again.” The Democrats, he says, should borrow a page from Trump’s “No collusion, no obstruction” playbook. They should be willing to keep pounding away at a concise (in their case, true) message about crooked government and innocent people being shafted. “Sometimes it’s hard to get something across except in a cumulative way,” Waxman says.

Members of Congress are prone to attention-seeking behavior, and the attention is sometimes gained at the expense of credibility or respect. House Republicans happily accepted that trade-off throughout their two-and-a-half-year investigation of the Benghazi terrorist attacks. The Democrats, having lived through a number of such partisan score-settling exercises, could be tempted to respond in kind. That is a temptation to be resisted, in the opinion of party elders with oversight experience.

One of them, former Michigan Senator Carl Levin, heads a nonprofit based at the law school of Wayne State University in Detroit. The Levin Center, dedicated to “oversight as an instrument of change,” champions a bipartisan approach, and in partnership with the Lugar Center and the Project on Government Oversight (POGO) has taken more than 200 House and Senate staffers through oversight-training boot camps built around hypothetical scandals. Literal bipartisanship is, of course, impossible in the age of Trump and Mitch McConnell. Nevertheless, says Elise Bean, co-director of the Levin Center’s Washington office and a former top Levin aide, House chairs and inquisitors would do well to rein in their instincts for invective and blame-setting. For the House’s hearings to stand a chance of stirring anyone beyond the base—any of the estimated 13 percent of Trump’s 2016 voters who had supported Barack Obama in 2012, for example—committee chairs will have to work extra hard to coordinate questioning and discourage grandstanding. “These inquiries need to be fact-based,” Bean says. “They can’t just come across as one group of people railing at another group of people.”

Grandstanding can be especially tempting in House committees with dozens of members coveting their five minutes of glory. The chairs themselves can be greedy for attention, a concern that may cause them to prioritize what are known as “fire alarm investigations” built around matters of immediate news interest. The alternative—the “police patrol investigation” of a systemic problem with a backstory—may look like too much work for too little gain. But it’s far more likely to be impactful, Light says, based on a review of 31 House investigations between the years 1945 and 2012. And the Democrats can afford to be comparatively subdued on the subject of Trump corruption, because the facts themselves are so appalling.

Most hearings, as a matter of cold statistical fact, draw little media or public notice. What gets noticed is the occasional riveting image of, say, a gang of tobacco executives swearing that nicotine is nonaddictive, in front of a committee with evidence of long-standing corporate knowledge to the contrary. But it is generally a mistake to aim for a knockout punch; moments of high drama are serendipitous and not to be counted on, says Waxman, who chaired that particular hearing back in 1994. While the tobacco execs’ robotic denials of the obvious got lots of play, Waxman points out that nobody remembers the long slog of investigations and hearings leading up to that climax.

On top of the usual challenges, Democrats must now deal with a president and an attorney general telling everyone under their authority (and quite a few people who aren’t) to withhold cooperation. “Lots of norms are being thrown out the window,” says Molly Claflin, a former Senate Judiciary staffer now employed at American Oversight, an anti-corruption nonprofit that files lawsuits and surfaces official documents to compensate for the recent neglect and underfunding of Congress’s investigative work.

To get over the Trump stonewall, House committee staffers will have to cast a wide and imaginative net for witnesses, what with all the Trump-dependent people likely to resist testifying. One place to look, Light suggests, is in the middle ranks of corrupted entities, private or public. The Financial Services Committee, for example, might bring in some of the Deutsche Bank financial-crime watchdogs who tried to warn their superiors against continued lending to Trump family interests. The Natural Resources Committee could question some of the career employees at the Environmental Protection Agency who have been blocked from going after polluters. If such people feel skittish about testifying, they can be offered the option of wearing masks and having their voices distorted—a nice touch, perhaps, for the committee’s attention-getting purposes as well as the witnesses’ job-security purposes.

The ultimate victims of crooked government—everyday people—can also be called in. A Department of Education in the clutches of for-profit college companies and private student lenders is one unlikely to implement a loan forgiveness program for holders of student debt who commit themselves to public service. Light points to that program as a neglected and ripe target for oversight. “You have tens of thousands of people,” he says, “who have made their payments on time and are working as police officers, nurses, medical professionals and can’t get a dollar of forgiveness.” The testimony of a carefully chosen sample of those people could be the perfect prologue to a round of student-loan hearings.

Powerful stories can be aired more than once in forums with different frames of reference. The House Education and Labor Committee could hold a stand-alone hearing on the loan forgiveness program, for example; but that problem could also be examined by the Oversight and Reform Committee, under the spirited leadership of Elijah Cummings of Maryland, as part of a multi-agency investigation of the role of the former corporate lobbyists and executives now littered across the federal government. They’re all over: David Bernhardt, the fossil fuel lobbyist turned interior secretary, proud of his readiness to hand out oil-drilling leases in Alaska’s Arctic National Wildlife Refuge; Daniel Elwell, the former airline guy running the FAA while it slow-walked its response to the safety issues of the Boeing 737 MAX; Jay Clayton, the ex–Goldman Sachs lawyer (married to an ex–Goldman Sachs executive) presiding over the Securities and Exchange Commission, and on and on. “Trump has found a fox for every henhouse in Washington,” Raskin says. That point could be effectively dramatized not only by the testimony of career public servants trying to do their jobs, but by an electronic map of the Trump administration with one agency after another lighting up as its conflicted leaders are identified.

Tax policy and tax enforcement is an obvious hearing topic. The Ways and Means Committee, under the cautious chairmanship of Richard Neal, took a woefully long time to sue for Trump’s tax returns, and it is unclear whether or how soon that litigation will bear fruit. The practical consequences of a New York law intended to force the release of Trump’s state tax returns are also up in the air. But Neal’s committee should have plenty of fodder for investigation, including an “opportunity zone” tax break with potentially large benefits for Jared and Ivanka, the disposition of a $7 million back-tax debt owed by the hedge fund manager and Republican donor Robert Mercer, and the strangely fast-tracked Senate confirmation of an Internal Revenue Service general counsel who had previously helped the Trump Organization with its taxes.

Trump hotels and resorts present another fertile area of inquiry. It is easy to imagine a hearing devoted to the parade of foreign dignitaries and business promoters feeding the coffers of the Trump International Hotel in downtown Washington en route to meetings with Trump-appointed public officials. The Emoluments Clause, widely associated with favors from foreigners, has a domestic dimension as well, Raskin points out. Article II, Section 1 of the Constitution tells us that the president is paid a fixed salary and “shall not receive … any other Emolument from the United States, or any of them.” That language could be hard to square with, say, military personnel being housed at Trump-related properties in Las Vegas, Hawaii, and elsewhere, and not always when the president was there with them.

The issue of Russian money laundering will be a tough nut to crack—but worth cracking. Hearings on that topic could strain the patience of that segment of the public already inclined to tune out matters related to Trump and Russia, while others may have trouble understanding why a rich Russian’s money is any dirtier than a rich non-Russian’s money. The Intelligence Committee could help clarify that point by introducing us to some of the thugs in the Trump orbit and to the practical meaning of the term “oligarch” in Putin’s Russia.

House Democrats could hold nonstop hearings from now until November 2020 without exhausting the supply of worthy targets. So far, however, they have not shown much appetite for oversight. Since the delivery of the Mueller report they have issued subpoenas, filed lawsuits, argued about jurisdiction and privilege and prerogative, and endlessly debated the pros and cons of impeachment, but they have done very little to call public notice to the rampant criminality of the Trump regime.

Some in their ranks seem content to soft-pedal the issue. If Mueller couldn’t come up with a Trump-busting scandal, they seem to believe, there is no point in carrying on with the hunt. On that theory, the Democrats should lay off the attacks, put on a smiley face, and just talk about “what we plan to do for the country,” says one such Democrat, the centrist Massachusetts Congressman (and pretend presidential candidate) Seth Moulton. But the experience of the past several months suggests just where that formula is likely to lead. If lawmakers and candidates lose interest in Trump’s crimes, so will the country at large, and a wide swath of the media will feel more liberated than ever to follow its natural impulse to normalize.

The country needs Congress to do more oversight, not less. It’s time for the Democrats to map out a coordinated and thoughtfully sequenced series of hearings and investigations designed both to expose new information and to stir more awareness and outrage over what is already known and half-known. Old stories, vividly told, can have fresh impact; that is true even if they have a sketchy basis in reality, as the House Republicans proved with their endless claims about Benghazi and Hillary Clinton’s emails. The Democrats can proceed, moreover, with confidence that more dirt will surface, even if they cannot say exactly what it will be or where it will be found. Elected by fraud and fluke, Donald Trump has given us the crookedest presidency in our national memory, if not our history. Never has anyone with so much to hide occupied such a central and visible place. That is a formula guaranteed to keep the flow of ugly information coming as long as anyone keeps looking.

Mueller and his team, in the course of not quite finding an actionable Trump-Russia conspiracy, unearthed evidence of a multitude of other offenses, and that haul helped the Democrats retake the House of Representatives last year. By Election Day next year, Trump’s crimes could be his undoing, and they could pose an impossible burden for his Republican partners in Congress as well. The Democrats cannot be sure of that—but it would be a terrible mistake to discount the possibility. Donald Trump himself is clearly troubled by the prospect of renewed scrutiny. We caught a recent glimpse of that fear in his racist fulminations against Elijah Cummings—a crazed preemptive effort to undermine one of the senior House members and committee chairs most bent on pressing ahead with aggressive oversight. If the president doesn’t think he’s home free, the Democrats had better not make that assumption either.

(Originally published by The American Prospect)


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