The midterm elections are Tuesday, but many in D.C. and across the country are already looking past that and gearing up for what they expect to come next: a flood of investigations launched by a Democratic Congress.
Lawmakers are laying the groundwork for an array of inquiries into President Donald Trump, his family and his administration. Companies are scrambling to figure out how to handle subpoenas. Attorneys say they are being inundated with calls from clients trying to game out where Democrats, expected to win control of at least one chamber of Congress, would focus their attention if they take control of committees and get subpoena power.
“This is an unprecedented level of activity in advance of an anticipated change in control,” said Michael Bopp, who chairs the congressional investigations group for the law firm Gibson Dunn. He previously led and worked on numerous congressional investigations. “At least in my experience over the last three decades, I haven’t seen this much investigative activity in anticipation of a change in control of a house of Congress ever.”
But what actually happens if Democrats win control and launch these probes is a much more knotty question.
The investigations would face significant headwinds, according to interviews with attorneys and former officials who have worked in the White House or Congress during such probes. These hurdles include a rapidly ticking clock, an administration armed with tools for pushing back on investigative efforts and the potential for high-stakes, drawn-out court battles, particularly with Congress expected to focus more than usual on the private sector.
“The ability of an administration to resist oversight is pretty profound, and I think we’ve seen this over multiple administrations,” said Nicholas McQuaid, who was deputy White House counsel under President Barack Obama and now co-leads the congressional investigations practice at the firm Latham & Watkins.
Democrats are favored to retake the House, but the fight for the Senate is projected as a toss-up. Lauren Bis, a White House spokeswoman, dismissed what she called “fake polls” showing “Republicans losing control of the Senate and House.” She said the election is a choice between Trump’s “winning, commonsense agenda or the Democrats’ obstruction.”
“Democrats have no agenda to improve the lives of Americans — their only agenda is to continue their decade long witch hunt against President Trump,” Bis said in a statement.
Congressional investigations that scrutinize an administration’s actions and policies tend to follow the same rough blueprint, according to former officials who have been involved in such efforts, some of whom spoke on the condition of anonymity to talk freely about their internal processes and tactics.
Committees send letters asking questions or requesting records, and depending on how administrations respond, lawmakers can escalate to issuing subpoenas.
Administrations can hand over some or all of the requested materials, the ex-officials said, or push back by invoking privileges meant to shield internal communications and executive branch records.
Or an administration can use what one attorney called “the informal inertia response,” otherwise known as dragging out the process.
Under this strategy, ex-officials say, an administration getting a letter requesting records takes a long time to reply, then asks to schedule a meeting on the matter down the line. If the meeting ends with the administration declining to comply, committees may turn to subpoenas. The administration could then ask for further meetings and fight the subpoenas in court, which takes more time.
“The executive branch has every reason to want to draw things out, until the term runs out for Congress, or until they lose interest and move onto something else, or until the next election is coming up,” said a former official who previously worked on congressional investigations. “So time is really on the side of the executive branch.”
During Trump’s first term, when Democrats took power in the House in the midterm elections and launched investigations, people on Capitol Hill were unprepared for just how many ways the administration could stymie oversight, the ex-official said.
“I think there was a little bit of a fantasy that you get the gavel, you fire off these subpoenas, and they’re going to have no choice but to testify or hand over the documents you’re asking for,” the person said. “And that ended up being not at all how it worked.”
In response to questions for this article, the White House said in a statement that officials are always ready to respond to oversight requests regardless of the party controlling Congress.
While January theoretically opens a two-year window for investigations, that period is shorter than it appears, because public attention may shift elsewhere much sooner, according to veterans of these probes.
“The White House is going to be very focused on anything that can slow down the process, because it isn’t even, frankly, a two-year clock,” said Ed Siskel, who was White House counsel under President Joe Biden and is now a partner at the firm Latham & Watkins. “Almost immediately after the midterm election results, people are going to start talking about the presidential election.”
Legal observers said they expected that Democrats — some of whom have already sent out investigative letters while in the minority — would try to speed up the usual process and not spend as long waiting for responses or taking time before voting to hold people in contempt.
While this does not mean lawmakers will instantly start firing off subpoenas, Siskel said, “they’re not going to take their time and go through a back-and-forth with this White House before moving to that level.”
Should Democrats win control of at least one chamber, the wave of expected investigations is likely to be distinct in one key way from previous times one party controlled Congress and investigated an administration led by the other party, veterans of these probes said.
This time around, they say, Democratic lawmakers would focus much more scrutiny on outside companies and people that had dealings with the administration.
“That is kind of a softer underbelly for Congress to get presidential communications,” said Michael Edney, who worked at the Justice Department and White House during President George W. Bush’s administration. “Because in some instances, private businesses or individuals may be more rattled by congressional inquiries than the executive branch is.”
Typically, if power in Congress changed hands and lawmakers launched investigations, “you would expect a healthy back-and-forth” between an administration and Capitol Hill, said Joel Green, a partner at WilmerHale. “Private entities would really be a little off to the side; they wouldn’t be the initial focus.”
But starting next year, there will likely be an intense, early focus “on private companies and corporations that intersected with President Trump and the executive branch agencies,” Green said.
With this in mind, companies have embarked on a flurry of activity in the run-up to the midterms, attorneys say, scrutinizing their internal records to figure out where they interacted with the administration and calling up lawyers to try to game out where Democrats will focus.
“The presumption is that the administration is going to go slower, have more ways to stonewall and leave the companies in a position of needing to respond to subpoenas or show up and provide testimony,” even on matters where the administration would know more, said Adam B. Schwartz, a partner at the firm A&O Shearman who has represented clients in high-profile congressional investigations.
This will be a “very uncomfortable position for companies,” said Schwartz, a former federal prosecutor. “This is the last place they want to be, stuck in the middle of partisan fight between Congress and the White House.”
McQuaid, the former White House official, said companies that draw congressional scrutiny next year will also have to manage a balancing act by figuring out how much to coordinate with the administration before responding.
Private businesses can always negotiate with lawmakers, attorneys said, including sometimes by providing partial responses that may satisfy a committee’s requests. But for many business leaders, the coming scrutiny will be new for them.
“Some large institutions have maybe done this before, but a lot have not,” said Giancarlo Pellegrini, a partner at Squire Patton Boggs who previously worked on Capitol Hill on congressional investigations. “For most companies out there, it’s not that often that Congress takes an interest in you.”
Adding to the uncertainty looming over the process is a Justice Department legal opinion released over the summer.
The department’s Office of Legal Counsel, which provides legal guidance to the executive branch, said in an opinion that certain communications Trump “or his direct advisers” have with figures outside the government could be covered by executive privilege.
Many legal observers said they expect the opinion’s conclusions will be fiercely debated amid congressional investigations next year and probably will wind up tested in court. Congressional committees and the White House probably will strategize about which legal challenges to mount regarding the issue, the observers said.
“This is an area where I personally believe the courts will not say, ‘There’s nothing to this,’” Bopp, the attorney, said of applying executive privilege to outside advisers. But, he said, “there are stronger and weaker cases.”
A court may agree, for instance, that communications between Trump and someone outside the government should be shielded, but it may be less inclined to say the same applies to a lower-level administration official’s contacts, Bopp said.
“Fortunately or unfortunately, the courts are going to have to deal with that,” Bopp said.
In theory, attorneys said, if a business or a private figure receives a request to disclose communications with the Trump administration, the Justice Department could go to court seeking to block that from happening, arguing that the request runs afoul of executive privilege. Even if the business or person wants to comply, lawyers said, the issue would be tied up in court, chewing up still more time.
Bis, the White House spokeswoman, said that the OLC memo did not expand executive privilege and added that presidents have long relied on outside advisers.
Limiting executive privilege to conversations only within an administration “would make it impossible for the President to rely on important outside sources,” she said.
Alyssa DaCunha, a partner at WilmerHale, said she believes the Trump administration will only rarely step in to try to quash a subpoena to outside businesses.
“More often, companies would be having conversations with Congress on the one hand and the White House counsel’s office on the other,” she said.
But lawmakers will also not try to pursue every possible investigative angle or fight every battle in court, she said.
“At the end of the day, congressional committees have a lot of resources, but they don’t have unlimited resources,” DaCunha said. “So they’ll have to pick battles.”
Mariana Alfaro contributed to this report.
The post Democrats plan big Trump probes if they win Congress. Then the real fights begin. appeared first on Washington Post.
