Democrats in Congress are still intent on investigating President Donald Trump and his administration after he leaves office, including a pursuit of Trump’s tax returns, a drive that threatens to complicate President-elect Joe Biden’s pledges of bipartisan unity since he won the election.
Democratic lawmakers and aides tell CNN they don’t intend to delve into all of Trump’s personal scandals once Biden is in the White House, in a nod to the President-elect’s desire to move forward. But they argue they have an obligation to scrutinize the actions of Trump and his administration that they charge violated constitutional norms and eroded the separation of powers — particularly in areas that can help efforts to pass legislative reforms to curb the powers of future presidents.
Democrats also have multiple lawsuits being waged against Trump in the courts — including efforts to obtain Trump’s tax returns, key financial documents, testimony from a former White House counsel and grand jury material from the Mueller report — which they say will continue into the new Congress.
“I would want to investigate things that are profoundly damaging to our system of government and are capable of repetition by a future executive or administration,” said Rep. Jamie Raskin, a Maryland Democrat on the House Judiciary and Oversight Committees. “Trump paying off mistresses or engaging in real estate fraud in New York — that doesn’t really implicate a federal interest. But then we have the whole series of actions by Trump and his administration that shake the foundations of our government to the core.”
Democrats say specific decisions about investigations next year have not yet been made.
But any oversight of the soon-to-be-former President will pose a challenging balancing act for both House Democrats and Biden, with Republicans sure to point to any Trump probes as evidence that the Democrats’ promises to reach across the aisle are hollow. The potential for Trump to run again in 2024 will also factor into Democrats’ calculations.
People close to the Biden transition say the incoming administration wants to avoid becoming mired in probes of the Trump era, which will distract from Biden’s own agenda. A Democratic leadership aide said House leadership has made clear that investigations should be about “institutional and governmental issues, consistent with the House’s Constitutional responsibility to conduct oversight, and not score settling.”
“Given the deadly nature of the pandemic, we have to look forward with the leadership of Joe Biden,” said New York Rep. Hakeem Jeffries, a member of House Democratic leadership.
‘Repairing the damage’ or time to move on?
The new administration will offer a new set of opportunities to pass legislation on key Democratic priorities, some of which will require the full attention of committees that have worked — in some capacity– for two years chasing down documents and investigating every aspect of Trump’s presidency, from his personal finances to the administration’s handling of security clearances to his immigration policies.
The challenge for the House Democratic chairs will be deciding which investigations are worth continuing even after Trump has left office. Democratic sources say their goal is to straddle both a robust legislative agenda on behalf of Biden on infrastructure and economic recovery, while still chipping away at investigations that they say will inform how they can write legislation to curtail future presidents from abusing the powers of their office.
Trump’s early flirtation with a presidential run again in 2024 is also likely to encourage Democrats not to ignore Trump’s actions.
“A lot of this goes to the imperative of repairing the damage done to the legislative branch and its powers in the last four years,” said Gerry Connolly, a Virginia Democrat on the Oversight Committee. “We know how he behaves — we have a record — and one can only imagine in one’s worst nightmares what it would be like if he were to regain the White House in four years. And that means to me, it’s absolutely imperative we address these issues now.”
But for some members, there is an appetite to move on as fully as possible. After a tougher-than-expected election for House Democrats, Democratic front-liners are ready to reorient the House’s focus to one of legislating with Biden rather than looking backward. It’s a similar divide inside the Democratic caucus that played out over the investigations that consumed the early days of 2019 and eventually morphed into Trump’s impeachment.
“My gravest concern is about the unity of our country and I recognize the challenge between the principle of law and accountability with increasing division. As we’ve seen with this administration trying to do a retrospective on the past can be more deconstructive than constructive,” Rep. Dean Phillips, a Minnesota Democrat, told CNN. “With that said, people have to be held accountable, but I will say this right now: The stimulus is a perfect example of what is more important.”
Democratic sources say that no decisions have been made about investigations in the new Congress, something that Biden’s team and House Speaker Nancy Pelosi will play a key role in deciding. Democrats on the key committees, such as the Judiciary and Intelligence Committees, have been discussing in recent days their priorities next year, including their investigations, according to sources familiar with the conversations.
When Barack Obama won the White House in 2008, a clear message was sent to Democrats in Congress not to dwell on the problems of the George W. Bush administration. While Biden has said he wishes to move on, a similar directive has not yet come from the Biden team, lawmakers and aides say.
Dems await Senate races and AG pick
There are two potential developments that could signal how aggressively Democrats go back to probe episodes from the Trump administration, which House Democrats are likely to wait for before making major decisions on their investigations strategy next year.
The first is whether Democrats win the two Senate races in Georgia, which would give them control of the upper chamber. Should that occur, the committees that would conduct oversight of the Trump administration are likely to have a much heavier focus on legislation because it would have a much greater chance of becoming law with a Democratic Senate, congressional sources say.
The second variable is who Biden appoints as attorney general, and whether the Justice Department takes up any Trump-related investigations. Congress tends to defer to the Justice Department when an investigation is underway, and lawmakers say they wouldn’t likely duplicate any of those efforts.
Biden told CNN’s Jake Tapper on Thursday he wouldn’t tell his Justice Department who they should investigate. “I’m not going to be telling them what they have to do and don’t have to do. I’m not going to be saying go prosecute A, B or C,” Biden said.
The Trump Organization is already facing scrutiny from the New York state attorney general and the Manhattan district attorney, who is also seeking Trump’s tax returns through the court. Trump’s daughter Ivanka Trump sat for a deposition last week with investigators from the Washington, DC, attorney general’s office as part of its lawsuit alleging the misuse of inaugural funds, according to a court filing.
But House Democrats are interested in accountability that goes well beyond Trump’s businesses.
In two years, the House Judiciary Committee investigated the Justice Department’s firing of US attorneys, the politicization of cases involving Trump’s allies and Trump’s use of pardons. The Intelligence Committee investigated the politicization of intelligence from the Department of Homeland Security. And the House Oversight Committee investigated everything from how the US Census was conducted and potential violations of the Constitution’s Emoluments Clause to security clearances at the White House and the mismanagement of the administration’s coronavirus contract negotiations.
Not all of the dozens of investigations will continue. But aides say the goal is to keep working on those that could help investigators write legislation to prevent future abuses.
“There are things that are worth knowing that we don’t know and that will be helpful in crafting legislation to fix the loopholes that Trump exploited,” Rep. Tom Malinowski, a New Jersey Democrat, told CNN. “We are not the prosecutorial body. If we find evidence of wrongdoing, we should refer it to the Justice Department.”
Dems seek Trump’s records in court
In court, Democrats say their cases against the Trump administration will continue. They are currently fighting for documents from Trump’s accounting firm Mazars, bank records from Deutsche Bank, a subpoena for testimony from former White House counsel Don McGahn, grand jury information from the Mueller investigation — and Trump’s tax returns.
One key argument in the Democrats’ cases is they need the information not just because they subpoenaed it, but because the information would serve a legislative purpose. But the White House and Justice Department under Trump have blocked nearly every request from the House sensitive to the President, claiming the executive branch has broad immunity to deny subpoenas and requests — and sometimes saying in court Congress must find other ways to get what they need, such as by impeaching the President.
“This is about oversight,” said House Ways and Means Chairman Richard Neal, who filed suit for Trump’s taxes. “I said this was going to be a long and grinding court case. I was never naive about this. We expect this is going to make its way all the way to the Supreme Court.”
The House requested a delay in arguments before the Supreme Court in the special counsel material case that were set for this month, which could mean the case will be taken back up next year when the subpoenas are officially reauthorized — or could lead to an agreement being struck with the Biden DOJ, too.
Patrick Boland, a spokesman for House Intelligence Chairman Adam Schiff, said in addition to the Deutsche Bank court case, the committee plans to continue oversight of the politicization of intelligence, and will also focus on legislation introduced just before the election to “protect against future presidential abuses.”
Looking at legislative fixes
That bill, which was introduced before the election by Schiff and the Democratic chairs who led many of the Trump investigations, would address everything from government spending at Trump’s properties to the President’s targeting of whistleblowers and firings of inspectors general. It would also strengthen Congress’ subpoena power after the White House ignored numerous Democratic subpoenas over the past two years.
There’s another investigative body that’s also likely to examine actions from the Trump administration regardless of the political winds: the federal government’s inspectors general.
There are dozens of open inspector general investigations across the federal government, including how Treasury handled the House’s request for Trump’s tax returns, the Pentagon’s award of the border wall contract and Secretary of State Mike Pompeo’s use of government resources and overseas appearance at the Republican National Convention. While the Trump administration often stifled IG investigations, the incoming administration may be more willing to share documents about how the Trump administration made certain decisions.
For some politically sensitive matters at the Justice Department, the inspector general may become the preferred route, such as reviewing Barr’s actions related to the cases of Trump associates Roger Stone and Michael Flynn, as well as his handling of Trump’s July 2019 Ukraine call that led to the President’s impeachment.
Democrats say Trump’s actions in the waning days of his presidency could also change their calculus — particularly if he issues pre-emptive pardons to his family or even himself, as some of his allies have been urging him to do recently.
“I appreciate and applaud the President-elect’s desire to move forward in a healing nature, and I agree,” said Mike Quigley, an Illinois Democrat on the Intelligence Committee. “But I think that dynamic changes if the President pardons himself and his family.”