How Republicans are likely to handle Democrat-led investigations 

How Republicans are likely to handle Democrat-led investigations 
© Greg Nash

Plenty of ink has been spilled about what the Trump Administration should expect now that the Democrats have wrested control of the House – subpoenas, subpoenas, and subpoenas.

This should surprise no one.

The President – and a long list of close aides – remain embroiled in one of the most consequential criminal probes in our nation’s history. The White House itself knows this, and has had difficulty staffing up their legal department with lawyers willing to put their own careers at risk given the scope and nature of the allegations.

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But that is not all.

The entire Executive branch has faced increased scrutiny for reportedly wasting taxpayer dollars and abusing authority.  Democrats – and Republicans alike – have been keeping track of the laundry list of items that could very much warrant Congressional inquiries for years.

Nevertheless, while Democrats have pledged to “check” this Administration, both parties know full well that Congressional investigations/inquiries are not just confined to “oversight” of the Executive branch.  

Congress has broad powers to conduct investigative inquiries, in keeping with its Constitutional power to legislate under Article I.

This is why, to the extent that Republicans have tenaciously blocked and tackled for the Trump Administration this Congress, we should expect House Republicans (now in the minority and without subpoena power), to try to push Democrats to divert their attention and resources away from the Trump Administration, and instead towards bipartisan, populist issues. 

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For example, legislators on both sides of the aisle have repeatedly called for a full accounting from social media companies for activity on their platforms. Lawmakers have complained that social media companies have over-aggressively monitored conservative voices on their platforms, while others have lambasted companies for not doing enough to curb hate speech and for being a fertile ground to radicalize domestic and foreign terrorists. 

Social media companies have also come under tremendous scrutiny due to the debate surrounding cybersecurity and privacy. They have been called out for the lack of transparency surrounding political advertisements, and bot activities that have collected personal data. One can easily imagine that if there is a data breach at a major company, bipartisan privacy hawks will call for a string of Congressional inquiries.  

Similarly, the pharmaceutical industry, which stands at the intersection of rising drug and health care costs, the ever-controversial Affordable Care Act, and the opioid epidemic, is increasingly facing loud, bipartisan scrutiny.

In the past, the pharmaceutical industry has had close ties with prominent Republicans, but recent moves by the Administration to curb rising drug prices reportedly “blindsided” the industry, causing suspicions to rise among the industry that the next Congress may pose some challenges.   

Other potential bipartisan inquiries are similarly hot-button topics – trade imbalances with China, inadequate election infrastructure within states, cybersecurity in the “Internet of Things,” states’ ability to implement marijuana legalization, or theft of trade secrets by foreign actors. Pick any of the above, and it would be hard not to find bipartisan lawmakers locking arms to call for hearings upon hearings upon hearings. 

Such a diversion approach would accomplish two things for Republicans.

First, it would put pressure on Democrats, in the lead-up to 2020, to frame themselves as either the “Anti-Trump” party or the party serious about bipartisan solutions. In the Democratic party, the last two years have seen a nonstop push to #resist, but there is a growing sentiment that the #resistance will only take you so far. How Democrats balance this growing tension between endorsing #resistance and/or #unity in this country will be a tall order.

Second, Congressional committees have limited time and resources. By pushing for bipartisan lines of inquiry, House Republicans know that the more they can run out the clock on oversight activities, the better they’ll be able to shield the President and this Administration from intensive Congressional inquiries.

If they then hammer the news cycle to talk about social media companies’ mistakes or pharmaceutical companies’ mistakes, rather than the President’s mistakes, it will be a diversionary tactic that Democrats will have to counter on a daily basis.  

Now, some may argue that this is a false choice, that House Democrats should be able to do both – keep the Administration in check and make inroads on bipartisan lines of inquiry. But given the breadth of possible investigations, there is a real risk that pursuing limitless inquiries will stifle effectiveness, rather than enhance it.

Ultimately, it is difficult to predict which direction the political headwinds will blow. For example, when the Mueller report becomes finalized, will it include startling revelations previously unknown? Will drug and oil prices soar to heights previously unseen, causing bipartisan fury? Will more domestic terrorists be found to have been radicalized online?   

These questions demonstrate that Congressional investigations will reach a fever pitch next Congress. The only question is: With Democrats now in control of the House, what exactly will they prioritize investigating? 

Peter S. Hyun is former chief counsel to Sen. Dianne FeinsteinDianne Emiel FeinsteinHarris introduces bill to prevent California wildfires Senate Democrats introduce Violence Against Women Act after bipartisan talks break down Harris shares video addressing staffers the night Trump was elected: 'This is some s---' MORE, Ranking Member on the Senate Judiciary Committee; he joined Wiley Rein LLP as a partner on October 8, 2018. Wiley Rein associate Madeline J. Cohen contributed.