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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.
(Image: Chip Somod­ev­illa/Getty)