Donald Trump will be a private citizen in January. But Republicans and Democrats on Capitol Hill are poised to carry on the investigations and legal battles that helped define his presidency.
In the House, Democrats are still in court fighting to obtain Trump’s financial records and testimony from his first White House counsel Don McGahn, a key figure in the obstruction of justice case against Trump.
In the Senate, where GOP control hinges on two Jan. 5 runoffs in Georgia, Republican lawmakers are plotting ways to expand and intensify their investigations targeting the former Obama administration and President-elect Joe Biden and his son Hunter, with Senate Republicans saying they will use the lame duck period to ramp up their probes.
“We’re not going to stop,” Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) said as he concluded a hearing this week on the FBI’s handling of its investigation of the 2016 Trump campaign’s ties to Russia — a probe the president has railed against for four years. “Because this is fundamental to democracy that the law enforcement community acts based on evidence, not based on bias.”
Although Trump will soon exit the White House, the legal warfare between his outgoing administration and both chambers of Congress is likely to continue reshaping the balance of power between lawmakers and the Executive Branch for generations. As court cases arising from his defiance of House subpoenas progress — and as Senate Republicans accelerate investigations into Biden — little-tested notions about Congress’ ability to investigate presidents are playing out in real-time, with a crowded calendar of appeals court and Supreme Court decisions already slated for early next year.
Biden will wield significant influence on the course of these probes. His Department of Justice will decide whether to continue defending against the House’s subpoenas, for example. But he faces a tricky calculus: rolling back Trump’s defiance of congressional authority without ceding too much ground to the Republicans hoping to draw blood.
Some House aides suggested Speaker Nancy Pelosi would ultimately decide which probes to continue or phase out, in consultation with Biden’s transition and administration. One of the tensions facing Democrats is the fact that Biden ran as a unity candidate, promising to turn the page on Trump-era scandal and bring the country together. Investigations of his predecessor, whether by Democrats in Congress or by DOJ, could cut against that healing message. However, Trump is still a powerful motivating force for Democrats and — much as Trump made Barack Obama and Hillary Clinton a foil for his entire term — Democrats are unlikely to sheathe their swords for Trump, particularly as voices in his orbit whisper about the prospect of a 2024 bid.
Pelosi and Biden’s decisions will also have no bearing on the criminal exposure Trump and his company may face from investigations underway by Manhattan and New York state prosecutors, who are looking into whether the Trump Organization committed bank or tax fraud, as well as whether Trump inflated the value of his assets to obtain loans. Whether or not Congress and the Biden Justice Department pursue Trump-focused inquiries, Trump is still facing a post-presidency thicket of litigation.
In any case, they say, Biden’s selections for attorney general and White House counsel will be the clearest indication of his posture toward congressional oversight.
Regardless of how House Democrats proceed, Republicans in the Senate — who are favored to retain control of the chamber after the Georgia runoffs — have signaled they intend to continue the Trump-era investigations that drew criticisms from Democrats as baseless efforts to placate the president as he ran for reelection.
Even before Biden takes office in January, Senate Republicans say they will step up their investigations — possibly boosted by a new round of declassifications from the Trump-aligned intelligence chief, John Ratcliffe, who released several secret documents about the 2016-era Russia probe to Senate Republicans during the run-up to the Nov. 3 election.
In fact, the GOP committee chairmen running these investigations, like Sen. Ron Johnson (R-Wis.), have an incentive to escalate them before Jan. 3, when those lawmakers will be forced to give up their gavels in accordance with party rules that limit their terms as chairman.
“We’re going to find somebody accountable for something when it comes to Crossfire Hurricane,” Graham vowed at the hearing this week, referring to the official name for the investigation into the Trump campaign’s ties to Russia.
“My goal is to not let them get away with it,” Graham said after the hearing.
Graham is set to turn his gavel over to Sen. Chuck Grassley (R-Iowa), who is certain to continue that probe in the new Congress. Just this week, Grassley sent a letter to Attorney General William Barr requesting information about Biden’s son Hunter’s foreign business dealings, though there’s no evidence the former vice president has done anything improper. The Iowa Republican has been deeply involved in the Trump-backed inquiries targeting the president’s political opponents.
But Johnson, another key Republican, will give up his chairmanship of the Senate Homeland Security and Governmental Affairs Committee, where he has been investigating the origins of the Russia probe in addition to spurious claims about Hunter Biden.
“We’ll continue to investigate the corruption that led to the Crossfire Hurricane investigation, and we’ll get into all of these things,” Johnson said, though he hinted that his successor as chairman, Sen. Rob Portman (R-Ohio), might not be interested in keeping them up. Indeed, Portman has never been enthusiastic about those investigations.
When asked if he thinks his investigations will continue when Portman takes over as chairman, Johnson said the probes would be housed under the panel’s permanent subcommittee on investigations, which he is likely to chair come January.
A subcommittee perch is not nearly as powerful of a position, so Johnson will find it difficult to issue subpoenas and take over investigative steps.
But Democrats worry that even with the diminished role, Johnson could try to undermine the Biden administration and the presidential transition period. “We don’t want it to become a Benghazi thing,” a Democratic aide said, referring to the years-long GOP-led investigation into the 2012 terror attack in Libya.
The House’s battle will largely be won or lost in court.
The Judiciary Committee, chaired by Rep. Jerry Nadler (D-N.Y.), has been fighting since August 2019 to enforce a subpoena for testimony from McGahn, the star witness in former special counsel Robert Mueller’s investigation. And Nadler has made clear he intends to pursue that testimony even without Trump in office. That means potentially months of legal battles in 2021.
“The chairman still has every intention of interviewing Don McGahn and other administration officials who have ignored our subpoenas, and continues to believe it’s important to do it,” said a Judiciary Committee aide, speaking on condition of anonymity to discuss the chairman’s thinking, “not only for the institutional consideration, but also because we are going to begin — whether they like it or not — the very difficult process of rebuilding the institutions these guys have degraded over the past four years,
The case is slated to come before the full U.S. Court of Appeals in Washington, D.C., on Feb. 23, with briefs due throughout the transition.
The Judiciary Committee is also fighting in court to obtain the grand jury evidence collected by Mueller’s team, a case that has wound its way to the Supreme Court. The justices are due to hear arguments on the matter — which will determine if the House’s impeachment power entitles it to access typically secret grand jury material — on Dec. 2.
The House Oversight Committee, meanwhile, has been fighting since early 2019 to access Trump’s financial records from his accounting firm, Mazars USA. The Supreme Court has already adjudicated the case, determining that lower courts — who ruled in favor of the House — hadn’t conducted enough scrutiny of Democrats’ demands. So the case is working its way back through the courts again, this time as the House argues its efforts to obtain Trump’s finances easily satisfies the heightened scrutiny the Supreme Court has demanded.
Even without Trump in office, the case may determine how much power Congress has to investigate a sitting president’s personal dealings.
There may be areas of mutual agreement for House Democrats — frustrated by years of Trump stonewalling — and Republicans, who filed their own raft of bills to strengthen Congress’ hand during the Obama administration. One of the leaders of those GOP efforts, Rep. Darrell Issa (R-Calif.) is returning to Congress in January two years after retiring.
The Judiciary aide noted that Issa has previously proposed legislation that would expedite court cases involving congressional subpoenas, a policy shift that Democrats have recently embraced as well, after seeing Trump run out the clock on several of their investigations.
“That’s a place where there really could be a confluence of interests here,” the aide said.
Just three days after Biden clinched the presidency, the Senate Judiciary Committee convened a hearing to revisit the origins of the FBI’s investigation of Trump’s 2016 campaign and its links to Russia — a probe that later morphed into the Mueller investigation. Trump has leveled unsubstantiated claims that Biden played a central role in orchestrating the investigation, though Senate Republicans, as well as a U.S. attorney tasked to review the matter by Attorney General William Barr, have not turned up any evidence to support his claims.
Nevertheless, Graham convened the hearing to obtain testimony from former FBI deputy director Andrew McCabe, who played a key role in determining whether to investigate Trump and signing off on surveillance warrants against former campaign adviser Carter Page.
After the hearing, Graham made clear that Biden’s election won’t deter him from conducting his investigation.
“To be continued,” he said.
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