I. Executive Summary

Since at least the Clinton Administration, the House of Representatives has approached congressional investigations differently depending on the party of the president and the party in control of the House. Leading House Republicans used aggressive investigative approaches during Democratic administrations, while opposing the same tactics during Republican ones. In contrast, some leading Democratic investigators surrendered investigative powers that they considered excessive when they took the gavel under Republican presidents.

Republicans controlled the U.S. House of Representatives for most of the Clinton and Obama administrations and led numerous oversight investigations, using tools such as subpoenas and depositions. When Democrats employed the same tools to investigate the Trump Administration, Republican congressional leaders reversed their stances, opposing rules and practices that they followed during their time in the majority in virtually every part of the oversight process. For example:

Use of Subpoenas: Republican Oversight Committee Chair Dan Burton issued over 1,000 unilateral subpoenas to investigate alleged Clinton Administration and Democratic Party misconduct, including subpoenas to senior White House officials. Republican Oversight Committee Chair Darryl Issa issued over 100 unilateral subpoenas to investigate the Obama Administration. But when Democratic chairs issued subpoenas to investigate the Trump Administration, a leading House Republican asserted, “a fishing expedition that would offer subpoenas for high-ranking executive officials is not something that Congress has ever expected in the past nor should it.”

Use of Depositions: During the Clinton and Obama administrations, House Republicans frequently used depositions to gather evidence. The Burton investigation, for example, deposed over 140 Clinton Administration officials. They also insisted on the confidentiality of these depositions during the investigative phase and excluded participation from agency counsels to avoid conflicts of interest. During the Trump Administration, House Republicans objected to the use of depositions to gather evidence, objected to maintaining confidentiality during the investigative phase, and called the practice of excluding agency counsels “completely devoid of any merit or legitimacy.”

Testimony by Senior White House Aides: During the Clinton and Obama administrations, House Republicans demanded and obtained testimony from top White House officials. During the Trump Administration, House Republicans supported President Trump’s efforts to claim absolute immunity for testimony from senior White House aides.
Testimony from Other Federal Officials: During the Clinton and Obama administrations, House Republicans regularly demanded and obtained testimony from a wide range of federal officials, including career civil servants. In the Benghazi inquiry alone, House Republicans took testimony from over 60 career employees. During the Trump Administration, House Republicans supported Trump Administration efforts to order federal officials, including career civil servants, not to testify before Congress in violation of multiple federal statutes, calling these congressional requests “strong arm tactics.”
Presidential Financial Records: During previous administrations, congressional committees sought and obtained financial information from the IRS and from banks, accountants, and other private institutions regarding presidents’ financial dealings. When House committees subpoenaed this information from President Trump’s banks and accounting firms, Republican ranking members opposed the subpoenas, calling them an “astonishing abuse” and a “disgraceful departure from … fair and legitimate oversight.”

Two leading Democratic investigators took a more restrained approach toward their oversight authorities during Republican administrations. When Democratic Rep. Henry Waxman became the Chairman of the Oversight Committee in 2007 during the George W. Bush Administration, he announced he would not issue any unilateral subpoenas as chairman, but would instead seek the consent of the ranking member or a committee vote before issuing subpoenas. Similarly, Democratic Rep. Elijah Cummings committed to seeking approval from the ranking member or full committee for any subpoenas when he became the Oversight Chair in 2017 during the Trump Administration.

II. Use of Subpoenas

‍Historically, House and Senate investigative committee chairs exercised subpoena power judiciously, issuing subpoenas only with agreement between the chair and ranking member or by committee vote. However, in 1997, after Republicans took control of the House of Representatives, Rep. Dan Burton, the Chairman of the House Committee on Government Reform and Oversight, adopted a different approach and abandoned the process of seeking ranking member concurrence or committee approval before issuing a subpoena. Between 1997 and 2003, Chairman Burton unilaterally issued 1,052 subpoenas targeting officials of the Clinton Administration and the Democratic Party.

When Democrats regained control of the House in 2007 and Republican George W. Bush was President, Democrat Henry Waxman served as chair of the Oversight Committee. He renounced unilateral subpoenas and adopted the policy of calling for a committee vote if the ranking member objected to the issuance of a subpoena. In contrast to the over 1,000 subpoenas Chairman Burton issued to investigate Democrats, Chairman Waxman issued just 40 subpoenas to investigate the Bush Administration, obtaining ranking member consent on all but three, which were then put to a committee vote.

When Republicans took control of Congress in 2011 and Democrat Barack Obama was President, Republicans reinstated the practice of unilateral subpoenas. By 2015, House Republicans had given unilateral subpoena authority to the chairs of 16 committees. Darrell Issa, who was Chairman of the House Oversight Committee from 2011 to 2015, issued over 100 unilateral subpoenas.

In 2019, when the House was again under Democratic control and the President was Republican Donald Trump, a key Democrat once again sought to reinstate the traditional practice of issuing subpoenas only with support of the ranking member or a committee vote. Rep. Elijah Cummings, the Chair of the House Oversight Committee, announced at the start of the Congress that he would refrain from issuing unilateral subpoenas. He stuck to this policy despite the consistent refusal of the Ranking Member, Rep. Jim Jordan, to support proposed subpoenas, which forced the Committee to convene four times in 2019 (in February, April, June, and July) to vote to approve subpoenas. Among the subpoenas that Ranking Member Jordan objected to were those seeking records on the Trump Administration’s migrant child separation policy, security clearance process, and decision to include a citizenship question on the 2020 Census.

When Democratic chairs did resort to subpoenas for documents from the Trump Administration, they were criticized by Republican leaders. Rep. Mark Meadows, who later became President Trump’s Chief of Staff, asserted, “a fishing expedition that would offer subpoenas for high-ranking executive officials is not something that Congress has ever expected in the past nor should it expect now.” In one case, House Education and Labor Committee Chairman Bobby Scott subpoenaed the National Labor Relations Board for internal ethics memos addressing a Board member’s conflicts of interest after 18 months of attempting to secure the records voluntarily. Even so, Committee Ranking Member Virginia Foxx criticized the subpoena: “This politically motivated subpoena is a fishing expedition masquerading as legitimate Congressional oversight.” When Rep. Carolyn Maloney became Chair of the House Oversight Committee in October 2019, she adopted the Republican policy of issuing unilateral subpoenas due to the opposition of Committee Republicans to all subpoenas of the Trump Administration.

When Republicans regained control of the House of Representatives in 2023, House Oversight Committee Chairman James Comer continued the use of unilateral subpoenas, and in some cases ignored the Committee rule that requires advance notice to the minority on subpoena issuance.

III. Use of Depositions

A. Deposition Authority

Historically, a special resolution was required to give deposition authority to a specific committee for a specific investigation. Examples from the 1990s include the deposition rules for the House Committee on Government Reform and Oversight inquiry into the Clinton Administration and the deposition rules for the House Committee on Education and the Workforce inquiry into the administration of labor laws. In 2007, House Democrats gave the Committee on Oversight and Government Reform standing deposition authority in the House rules. In 2014, House Republicans gave deposition authority to the Select Committee on the Events Surrounding the 2012 Terrorist Attack in Benghazi (“Benghazi Committee”). In 2015, the House rules adopted by the Republican majority gave standing deposition authority to four committees in addition to the Committee on Oversight and Government Reform.

In 2016, several House Republicans, including then-Rep. Mike Pompeo and Rep. Jim Jordan, recommended extending deposition authority to all House committees, saying, “The ability to interview witnesses in private allows committees to gather information confidentially and in more depth than is possible under the five-minute rule governing committee hearings. This ability is often critical to conducting an effective and thorough investigation.”

In 2017, during the first part of the Trump Administration, Republican leaders followed this advice. The 2017 House rules provided all standing committees (other than the Rules Committee and the House Administration Committee) and the House Permanent Select Committee on Intelligence with deposition authority.

Republican chairs made extensive use of deposition authority. In the 1990s, the Committee on Government Reform and Oversight under Republican Chairman Dan Burton took 141 depositions of individuals who worked in the Clinton Administration, including White House chiefs of staff, White House counsels, and other officials at the most senior levels of government. The Benghazi Committee also used the deposition authority as part of its investigation into Secretary of State Hillary Clinton, taking the deposition of Clinton advisor Sidney Blumenthal. The House Committee on Oversight and Government Reform under Chairman Darrell Issa took depositions during its inquiries into the attack in Benghazi and alleged targeting of political groups by the Internal Revenue Service.

When Democrats were in the majority for the last two years of the Trump Administration, the House rules continued the Republican approach and granted standing committees deposition authority. This authority was also used during the first impeachment inquiry. Notwithstanding their previous support for the use of depositions, however, Republican leaders criticized the use of committee depositions to investigate the Trump Administration. In fact, Republican opposition to depositions grew so intense during the first impeachment inquiry of President Trump that over 30 Republican members forced their way into a witness deposition that they were not authorized to attend, causing a five-hour delay in the proceeding while authorities investigated whether security had been compromised. Rep. Jordan asserted, “The American people understand fairness and they instinctively know that what is happening here is not fair.” House Minority Leader Kevin McCarthy claimed, “this process is … something that this Congress has never done.”

B. Maintenance of the Confidentiality of Depositions

When House Republicans gave the Committee on Government Reform and Oversight deposition authority in 1997 for its investigation of the Clinton Administration, the resolution giving the Committee deposition authority provided that depositions would be “considered as taken in executive session,” which meant that deposition evidence obtained was subject to the House rules requiring committee authorization for any public release. As an additional safeguard of confidentiality, the Committee rules limited attendance to committee members and committee staff.

When House Democrats gave the Committee on Oversight and Government Reform standing deposition authority in 2007, the Committee rules incorporated the substance of these confidentiality protections, providing that a committee vote or the concurrence of both the chair and ranking member was required to release a deposition or portion thereof and that only committee members and staff could attend. When House Republicans gave the Benghazi Committee deposition authority in 2014, the deposition procedures they approved contained the same confidentiality provisions, as did the deposition regulations established by House Republicans in 2017 when they gave nearly all committees deposition authority. The deposition regulations issued in 2019 by the Democratic Chairman of the Rules Committee likewise adopted the same approach to confidentiality.

During Democratic administrations, House Republican chairs used their authority to withhold the release of deposition transcripts for extended periods of time. In 1997, the House Government Reform and Oversight Committee kept depositions confidential for months during its inquiry into the Clinton Administration. In 2015, over a year into the investigation by the Benghazi Committee, Chairman Trey Gowdy stated, “the Committee does not plan to release the transcript of any witnesses. ... Releasing transcripts can impact the recollections of other witnesses, jeopardize the efficacy of the investigation, alert witnesses to lines of inquiry best not made public, and publicize personal information.” Chairman Gowdy also prevented Oversight Committee Chairman Darrell Issa from attending one of the Select Committee’s depositions, explaining: “I’m a prosecutor, we always follow the rules. [Issa] is not a committee member and non-committee members are not allowed in the room during the deposition. Those are the rules and we have to follow them, no exceptions made.”

Republican leaders took a different position during the Trump Administration when committees took depositions as part of the Ukraine impeachment investigation. House Republican Whip Steve Scalise called the depositions “a Soviet-style process” that “should not be allowed in the United States of America” and said, “Every member of Congress ought to be allowed in that room. The press ought to be allowed in that room.” Even House Minority Leader Kevin McCarthy led a protest against what he called a “closed system” and unsuccessfully tried to attend a deposition in progress.

C. Exclusion of Agency Counsel

When Rep. Dan Burton investigated the Clinton Administration, the House Committee on Government Reform and Oversight adopted committee rules that expressly provided that “counsel … for agencies under investigation may not attend.” The rationale for the rule was to preserve the integrity of the investigation, to avoid providing a roadmap of the investigation to the agency being investigated, and to prevent the agency counsel from obstructing the proceeding. As a result of this rule, the 141 Clinton Administration officials deposed by the Committee had to obtain private counsel, often at significant personal expense. One career government official incurred $50,000 in legal fees.

When Democratic Rep. Henry Waxman became chair of the House Oversight Committee in 2007 during the George W. Bush Administration, he retained the prohibition of agency counsel in depositions. To protect government officials from unnecessary legal fees, he developed an alternative procedure for “transcribed interviews,” which were not subject to the deposition rules and at which agency counsel could attend and represent the government witness. Agency witnesses were typically given the option of appearing at transcribed interviews instead of depositions.

When Republicans took control of the House in 2011, they preserved the prohibition on agency counsel in depositions. Republican chairs of the House Oversight and Government Reform Committee repeatedly implemented rules that barred agency counsel attendance (rules of the Committee on Oversight and Government Reform for the 112th, 113th, 114th, and 115th Congresses). The Republican rule for the Benghazi investigation likewise expressly provided that “counsel … for agencies under investigation may not attend.” When the House Republicans extended standing deposition authority to additional committees in 2015 and 2017, the deposition rules issued by the House Rules Committee chair also incorporated this bar (deposition regulations for the 114th and 115th Congresses).

The prohibition on agency counsel participation in the deposition regulations issued by the Democratic Rules Committee chair in 2019 was identical to those previously issued by the Republican Rules Committee chair. Nevertheless, House Minority Leader Kevin McCarthy wrote that failure to allow White House Counsel to attend impeachment depositions “would create a process completely devoid of any merit or legitimacy.”

IV. Testimony by White House Aides

Congress has regularly demanded and obtained testimony from White House aides. When the House Government Reform and Oversight Committee was investigating the Clinton Administration under Republican Chairman Dan Burton, the most senior officials in the Clinton White House testified before the Committee in depositions and hearings, including White House chiefs of staff and White House counsels.

When Democrats took control of the House in 2007, they sought testimony and interviews from White House officials in the George W. Bush Administration. The White House allowed interviews in some investigations, such as the House Oversight Committee’s investigations into the influence of lobbyist Jack Abramoff and the fratricide of former NFL football player Pat Tillman. In other investigations, such as the House Judiciary Committee’s investigation of the firing of U.S. Attorneys, President Bush asserted absolute immunity over key witnesses, such as White House Counsel Harriet Miers and Chief of Staff Joshua Bolten, leading to a House contempt resolution, a court case, and an ultimate settlement during the Obama Administration.

When Republicans regained the House majority during the Obama Administration, they continued to demand and receive testimony from White House officials. For example, the House Benghazi Committee under Republican Chairman Trey Gowdy heard testimony from Susan Rice, the National Security Advisor, and Benjamin Rhodes, her deputy, and conducted interviews of other White House officials. President Obama asserted absolute immunity to prevent the testimony of only one official, David Simas, an Assistant to the President and Director of the Office of Political Strategy and Outreach.

During the Trump Administration, however, President Trump repeatedly directed White House officials not to testify before Congress. In the investigation of Russia’s interference in the 2016 elections, he asserted that his former White House Counsel Donald McGahn was absolutely immune from testimony. In an investigation of Hatch Act violations, he asserted that his Senior Advisor Kellyanne Conway was likewise absolutely immune. The most prominent example occurred during the first impeachment investigation, where the White House Counsel wrote House congressional leaders that “President Trump and his Administration cannot participate in your partisan and unconstitutional inquiry.” As a result of this directive, multiple White House officials, including the Acting White House Chief of Staff, a former National Security Advisor, and lawyers in the White House Counsel’s office, refused to testify, as did other senior officials across the government.

Despite the long history of Republican-controlled committees insisting upon and receiving testimony from top officials in Democratic administrations, Republican leaders in the House supported the Trump White House’s refusal to cooperate in the investigations. When the Judiciary Committee sought to compel the testimony of Mr. McGahn, Judiciary Committee Ranking Member Doug Collins said that Democrats were “only interested in the fight and spectacle of an investigation, but not actually obtaining any real information.” When the House Oversight Committee sought to compel the testimony of Ms. Conway, Ranking Member Jim Jordan accused the Committee of “creating political theater” and said she was “being targeted because she is good at what she does, and this is why this should not stand.”

In the investigation preceding then-President Trump's first impeachment, some federal officials decided to testify despite the President’s directive not to cooperate. When this happened, House Republicans criticized the process and sought to disrupt the depositions, as described above.

V. Testimony from Career Employees

As a Co-Equal precedent report recounts, Congress has routinely demanded and obtained testimony from career civil servants. In the Benghazi inquiry alone, the Committee conducted interviews with over 60 career officials in the Department of State, Central Intelligence Agency, and Department of Defense. These communications are protected by at least seven federal statutes. In fact, federal officials who seek to prevent career employees from communicating with Congress face significant potential administrative, civil, and criminal penalties.

When Democratic committee chairs sought testimony from career civil servants during the first impeachment investigation of then-President Trump, the White House Counsel called attempts to secure their testimony “strong-arm tactics” that lack “any regard for due process and the rights of individuals and of the Executive Branch.” Career officials asked to testify before Congress were instructed that there is an “Administration-wide direction that Executive Branch personnel ‘cannot participate in the impeachment inquiry under these circumstances.’” Despite their prior practices, House Republicans supported these White House efforts to block testimony by career officials. For example, then-Rep. Mark Meadows argued Democrats were trying to “bully, intimidate, and make demands of State Department employees who have done nothing wrong.”

VI. Testimony from Career Employees

As a Co-Equal precedent report documents, congressional committees have a long record of seeking and obtaining information about presidents’ financial arrangements from the IRS and from banks, accountants, and other private institutions. During the Clinton Administration, for example, the Senate Special Committee to Investigate the Whitewater Development Corporation and Related Matters deposed three accountants who had worked for President Clinton. During the Carter Administration, the Senate Judiciary Committee obtained President Carter’s brother’s tax records from the IRS as well as bank records and other financial information.

During the Trump Administration, however, Republican leaders opposed inquiries into President Trump’s financial records, notwithstanding the fact that he was the first president in 40 years to refuse to release any tax returns. When the Treasury Department failed to provide Mr. Trump’s tax returns to the Ways and Means Committee despite a statutory obligation to do so, the Committee’s Ranking Member Kevin Brady commented: ”[T]his request from House Democrats to weaponize the tax code for purely political reasons is illegitimate and should be treated as such. This politically motivated abuse of the law violates our Constitution – and serves no legislative purpose. Abusing the tax writing Committee’s authority to go after a political enemy sets a dangerous precedent, and the Administration is right not to go along with it.”

House Democratic chairs also sought financial information from private firms relating to the Trump family’s alleged financial improprieties and abuses. Following a determination by the Office of Government Ethics that President Trump filed an erroneous financial disclosure form and testimony by Michael Cohen, President Trump’s former lawyer, that President Trump routinely altered the values of his assets on financial statements, the House Committee on Oversight and Reform subpoenaed President Trump’s private accounting firm for records concerning Trump’s tax preparation. The House Committee on Financial Services subpoenaed Deutsche Bank and Capital One Bank for records relating to purchases of Trump properties by Russian oligarchs engaged in money laundering. And the House Intelligence Committee subpoenaed financial records from Deutsche Bank to evaluate leverage that foreign actors potentially had over President Trump, his family, and his businesses.

Despite the history of congressional investigations into presidents’ financial dealings, Republicans opposed these actions. In response to the subpoena for President Trump’s accounting firm, House Oversight Committee Ranking Member Jim Jordan said, “Chairman Cummings’s announcement of a subpoena to a private company to pry into the President’s personal finances is an astonishing abuse of this Committee’s authority and a disgraceful departure from the fair and legitimate oversight he promised to the American people.” In response to the subpoena of Deutsche Bank and Capital One, Committee Ranking Member Patrick McHenry said the Committee was “moving away from the shared goals of oversight towards bending to the political whims of others. ... Oversight should not be partisan."

When Republicans regained control of the House in 2023, however, House Oversight Committee Chairman James Comer issued subpoenas to financial institutions to demand financial information concerning President Biden’s brother and his son.

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