Real Congressional Oversight Means Sacrificing Egos for Answers

House Democrats should let experts ask questions of hostile Trump witnesses.

February 21, 2019

The House Judiciary Committee’s unenlightening confrontation with Acting Attorney General Matthew Whitaker earlier this month proves anew that meaningful congressional oversight over recalcitrant Trump officials will occur only when Democratic-controlled committees dramatically change the way they handle public hearings. No more hoary opening speeches by panel members. No more long-winded questions with feckless follow-ups. Instead, Trump witnesses must be questioned by outside counsel, experts hired for their cross-examination skills and the depth of their knowledge about the subject of the witnesses’ testimony.

Over and over again, House Democrats failed to pin down Whitaker on even the most basic facts about his unethical tenure at the Justice Department. Over and over again, the witness got away with contradictory testimony because those questioning him either didn’t listen to his answers or were too busy trying to make sure they got to the next question. Rep. David Cicilline of Rhode Island distinguished himself with his dogged questioning, and so did Rep. Pramila Jayapal of Washington, but too many of their colleagues did not. The same is true of virtually every congressional hearing, including (or perhaps especially) confirmation hearings for judges.

This is not an esoteric issue. House Democrats simply cannot afford to waste any more opportunities to hold Trump’s functionaries accountable when they testify before Congress. Bureaucrats like Whitaker aren’t coming to Capitol Hill to engage in good-faith explorations of pressing national issues. They are coming, if not to obstruct justice, then at least to obstruct the truth about the corruption and countless of the Trump administration. No rational person on either side of the Trump divide could have watched Whitaker’s testimony and come away with the belief that he testified fully and accurately despite being under oath.

This subpoena-infused partisan charade is going to keep happening unless House Democrats do something to stop it — and soon. The House Judiciary Committee, for example, is pushing to have Trump officials come to Capitol Hill, perhaps even this week, to try to explain the rationale behind Trump’s dubious “national emergency” declaration. Whoever the White House sends to defend or justify this unconstitutional action — my guess is that it will be someone smarter and slicker than Whitaker — cannot be allowed to duck and dodge and run out the clock on federal lawmakers as Whitaker did during his February testimony.

The same holds true for the next time Homeland Security Security Kirstjen Nielsen comes to Capitol Hill. She is scheduled to appear before the House Homeland Security Committee on March 6, and she cannot be allowed to dissemble (or lie) about the administration’s “family separation” policy the way she did the last time she appeared before Congress. She must be questioned by an expert in immigration law and policy who can develop a line of questioning and then pin down Nielsen when she tries to evade questions. The tactic cannot guarantee candor from a witness like her. But it can guarantee that a witness’s lack of candor will be fully exposed.

To combat the Trump administration’s lies and misdirection and arrogant refusal to respect legislative oversight, here’s my modest proposal to House Democrats (and also House Republicans, who can delegate their own questioning to their own experts). Brief opening statements by committee chairs followed by lengthy, detailed questioning by an expert who has coordinated subject areas in advance with committee members. No more five-minute question periods by individual representatives. Instead, an interrogation that generates its own momentum the way it does in a deposition or a cross-examination in open court.

“This is one of my mantras now to the new chairs,” American Enterprise Institute Scholar Norman Ornstein told me via email this past weekend. He’s been following congressional hearings for decades and agrees that Democratic lawmakers in the age of Trump must put aside their egos for the sake of their oversight functions. “For all investigative hearings,” Ornstein told me, “no opening statements except for chairs and ranking [members]. [Committee] counsel takes thirty minutes to set stage and frame the inquiry. Then rounds of ten minutes each. With majority members coordinating lines of questioning to keep it from being too disjointed.”  

I am willing to go further than Ornstein. Let’s use as an example Rep. Ted Lieu of California, who also did well questioning Whitaker. Let’s say he wants to focus with Nielsen on the news last week that federal immigration agents now are reportedly sending asylum seekers, who have committed no crimes, to private prisons in Mississippi. Rep. Lieu sends his questions to the expert who pieces them together with other questions from other lawmakers to form a cohesive line of inquiry. The whole of the questioning, in other words, becomes greater than the sum of its parts. The witness cannot hem and haw through a five-minute round.

There is famous precedent for the congressional delegation of questioning to those best suited to question effectively. For example, when Congress finally got around to investigating the Iran-Contra scandal during the Reagan administration, Senate Democrats called on Arthur Liman, a masterful lawyer, to aggressively question executive-branch witnesses. Some thought Liman heavy-handed and prosecutorial. Some thought his tactics didn’t play well on television. But he was brilliant in his pursuit of the truth. He repeatedly pressed recalcitrant executive-branch witnesses to share information they did not wish to share.

Which is precisely what House Democrats need now and precisely what they have proven unable to do by themselves. And so what if the questioning by these experts comes off on television as overly zealous? Who is going to complain? The witnesses who won’t answer the questions? Congressional Republicans, the ones who chased the Benghazi narrative on its tail and forced Hillary Clinton to endure 11 hours of questioning? Sean Hannity? I’ll tell you what doesn’t play well on television, at least for Democrats and independents: futile questioning of Trump witnesses by overmatched federal lawmakers.

There are plenty of other examples of counsel taking over questioning during committee hearings, and some offer delicious irony. Roy Cohn, Donald Trump’s hero and mentor, infamously questioned witnesses during the McCarthy hearings in the 1950s. Robert F. Kennedy, before he was U.S. attorney general, questioned mobbed-up union leader Jimmy Hoffa  a few years later. And as Brennan Center for Justice President Michael Waldman told me the other day, you can go back as far as 1932 and the case of Ferdinand Pecora and the Great Depression for an example of how vital strong counsel questioning can be on Capitol Hill.

And you need only go back to last fall for an example of how a committee counsel ought not to work. Remember Rachel Mitchell? She was the competent attorney hired by Senate Judiciary Committee Republicans not to help Americans get to the truth of the sex abuse allegations against Supreme Court nominee Brett Kavanaugh but rather to try to diffuse those allegations against him. You'll recall, if you recall Mitchell at all now, that as soon as her questions of Kavanaugh became sharper, as soon as she began to draw blood, she was replaced by the all-male team of Republican questioners.

There are plenty of strong candidates who could ask tough questions of witnesses if House members wisely stepped aside. Some are former federal prosecutors with extensive trial and legislative experience. Others are academics who have at the tips of their fingers the context necessary to catch these Trump witnesses when they offer deceptive answers. Many have written extensively about the issues raised by these hearings. There is simply no downside to this strategy for lawmakers. The only downside is to change nothing and continue to let key testimony, and thus key evidence of government malfeasance, simply slip away.

After two years of Republican collusion and obstruction in Congress, of monumental questions left unanswered, a clear and growing majority of American want and expect legitimate congressional oversight both to identify the extent of the administration’s corruption and then to remedy it. Most legislators just aren’t up to the job. Every minute spent on an opening speech by a member, every minute fumbling over a follow-up, is one minute less spent forcing Trump’s tribunes to try to answer for their policies and practices. Every failure to follow up on an incomplete or misleading answer is a lost opportunity to round out a more accurate story of this administration.

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.
 
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