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Partisan Use of Oversight Powers

I. Introduction

During the first of the two impeachment inquiries regarding President Trump, then-Attorney General William Barr made the extraordinary claim that Republican congressional oversight has reflected restraint and nonpartisanship compared to Democratic congressional oversight.  According to Barr, “conservatives tend to have more scruple over their political tactics and rarely feel that the ends justify the means,” whereas “the so-called progressives … are willing to use any means necessary to gain momentary advantage in achieving their end, regardless of collateral consequences.”  Further, he claimed that conservatives “naturally test the propriety and wisdom of action under a ‘rule of law’ standard,” while progressives “never ask whether the actions they take could be justified as a general rule of conduct, equally applicable to all sides.”

In fact, the record shows the opposite.  Whether measured by number of unilateral subpoenas issued, depositions taken, or investigations of the other party’s presidential candidate, Republican congressional leaders have repeatedly broken longstanding norms and used their oversight powers more aggressively and in a more partisan way than Democratic congressional leaders.

Two examples highlight the difference in the approach of the parties.

Investigations of Presidents

When President Clinton was in office and Republicans controlled the House, Republican Chairman Dan Burton of the House Government Reform and Oversight Committee broke longstanding precedent to issue over 1,000 unilateral subpoenas targeting the Clinton Administration.  When President George W. Bush was President and Democrats controlled the House, Democrats restored the practice of issuing subpoenas only with bipartisan support or after a committee vote.  When Republicans regained control of the House when President Obama was President, they again issued over 100 unilateral subpoenas to investigate the Obama Administration without bipartisan support or a committee vote.

Investigations of Presidential Candidates

Over the last 50 years, only Republicans have used the oversight powers of Congress to investigate a candidate of the opposite party running for president. The most egregious example is Republicans’ investigation of Hillary Clinton during her 2016 campaign, when Republican committees held nine hearings to investigate her conduct, including one hearing at which she was called to testify for over 11 hours. In 2020, two Republican committee chairs in the Senate are repeating this abuse of congressional oversight authority, having already launched two investigations into Joe Biden.

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 the 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, Democrats voluntarily renounced the practice of issuing unilateral subpoenas.  During that period, Democrat Henry Waxman served as chair of the Oversight Committee. In contrast to Burton’s approach, Waxman’s practice for issuing subpoenas was to seek ranking member concurrence or committee vote. In contrast to the over 1,000 subpoenas Burton issued to investigate Democrats, Waxman served 40 subpoenas to investigate the Bush Administration, and he obtained ranking member consent on all but three, which were then put to 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 chair of the House Oversight Committee from 2011 to 2015, issued over 100 unilateral subpoenas

In 2019, when the House was again in Democratic control and the President was Republican Donald Trump, some key Democrats once again sought to reinstate the traditional practice of issuing subpoenas only with support of the ranking member or a committee vote. 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, 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. In contrast to the over 1,000 subpoenas issued by Chairman Burton to investigate the Clinton Administration, the House Intelligence, Oversight and Reform, and Foreign Affairs Committees issued just 42 subpoenas in the impeachment inquiry of President Trump.

III. Use of Depositions

Subpoena authority is not the only investigative power congressional Republican leadership has used in a partisan manner to investigate Democratic presidents. Another major congressional oversight tool is deposition authority, which provides for transcribed witness testimony conducted by committee staff and members. When the Republicans controlled the House Oversight Committee during the Clinton Administration, the Committee took deposition testimony from 141 individuals who worked in the Clinton Administration. In an inquiry into whether President Clinton and the First Lady abused their holiday card list, the Committee took deposition testimony from 35 individuals.

In contrast, Democratic chairmen have employed this power judiciously. During the recent impeachment inquiry into President Trump’s effort to use his official powers to press Ukraine for political favors, the House Select Committee on Intelligence took a total of just 17 depositions.

IV. Investigations of Presidential Candidates

For at least 50 years prior to the 2016 presidential elections, an unspoken norm of congressional oversight was that congressional committees should not serve as an arm of the political parties by investigating the conduct of a candidate for president of the opposite party.  Although they controlled at least one House of Congress, Democrats refrained from investigating Richard Nixon when he ran for president in 1968, Ronald Reagan when he ran for president in 1980, John McCain when he ran for president in 2008, and Mitt Romney when he ran for president in 2012.  Likewise, Republicans did not investigate Walter Mondale in 1984 or John Kerry in 2004.  In fact, a review of congressional transcripts by Co-Equal revealed not a single hearing during the campaigns in which a member asked a question about the conduct of these candidates.  

Prior to the 2016 election, there were only two exceptions to this rule. First, a sitting president could appropriately be subject to oversight since Congress’ responsibility to oversee the executive branch does not cease during election years.  

Second, two sitting vice presidents running for president were the subject of congressional oversight. One, Vice President Gore, was investigated in nine Republican hearings on topics ranging from his role in communications with Russian politician Viktor Chernomyrdin, his interactions with Democratic donors during the 1996 presidential campaign, and his email system. [Note 1]. The other, then-Vice President George H.W. Bush, was the subject of a single hearing on the extent to which he had knowledge of Panamanian General Manuel Noreiga's drug trafficking activities.

In the 2016 election, the long-standing norm against investigating non-incumbent candidates for president was cast aside by Republicans in the House and Senate.  After Hillary Clinton announced her campaign on April 12, 2015, five Republican-led committees held nine hearings into her activities and five additional hearings at which Republican chairs asked questions about her activities. According to a tally by Rep. Elijah Cummings, House Republicans issued over 70 subpoenas and letters investigating Clinton in the last four months of the campaign. In September 2016 – less than two months before the election – Republicans held six separate days of hearings in which questions were asked about Clinton’s conduct:  one each on September 8, 12, 13, 22, 27, and 28.  

Prior to Hillary Clinton’s announcement of her candidacy, there had been seven congressional investigations into the attacks on U.S. diplomats in Benghazi, Libya.  In the House, these investigations were conducted by the Committee on Armed Services, 2012-2014; the Committee on Foreign Affairs, 2012-2013; the Select Committee on Intelligence, 2012-2014; the Committee on Judiciary, 2012-2013; and Committee on Oversight and Government Reform, 2012-2014.  In the Senate, parallel investigations were conducted by the Select Committee on Intelligence and the Committee on Homeland Security and Governmental Affairs. As John Dingell, the longest-serving member in the history of Congress, wrote, more congressional reports had been written about the Benghazi attacks that killed four Americans than the combined total of the congressional reports on the September 11 attacks that killed nearly 3,000 Americans, the embassy bombings in Kenya and Tanzania that killed 224, the Oklahoma City bombing that killed 168, the U.S.S. Cole bombing that killed 17 sailors, and the Boston Marathon bombing that killed three and injured 260. 

Despite the seven prior investigations, Republicans in the House created an additional select committee that conducted two more years of inquiry (Select Committee on the Events Surrounding the 2012 Terrorist Attack on Benghazi, 2014-2016).  The purpose of creating the select committee was overtly political.  Kevin McCarthy, who is currently the Republican leader in the House, stated the investigation was part of a “strategy to fight and win,” explaining: “Everybody thought Hillary Clinton was unbeatable, right? But we put together a Benghazi special committee, a select committee.  What are her numbers today? Her numbers are dropping.”  On October 22, 2015, this committee held an 11-hour hearing with Hillary Clinton as the sole witness.  

In addition to the Benghazi hearing, House and Senate Republicans held over a dozen other hearings in which questions were asked about Clinton-related topics, such as her emails or the Clinton Foundation.  Eight of these hearings were primarily about Clinton.  In these hearings, the Republican Committee chair focused on Clinton in both the opening statement and opening round of questions or Clinton’s name came up at least 100 times during the hearing:  

  • Hearing on Oversight of the Federal Bureau of Investigation, House Committee on the Judiciary (Oct. 22, 2015);
  • Hearing on Oversight of the United States Department of Justice, House Committee on the Judiciary (Nov. 17, 2015);
  • Hearing on Oversight of the State Department, House Committee on Oversight and Government Reform (July 7, 2016);
  • Hearing on Oversight of the Department of Justice, House Committee on the Judiciary (July 12, 2016);
  • Hearing on Examining FOIA Compliance at the Department of State, House Committee on Oversight and Government Reform (Sept. 8, 2016);
  • Hearing on Classifications and Redactions in FBI’s File, House Committee on Oversight and Government Reform (Sept. 12, 2016);
  • Hearing on Examining Preservation of State Department Federal Records, House Committee on Oversight and Government Reform (Sept. 13 and Sept. 22, 2016); and
  • Hearing on Oversight of the Federal Bureau of Investigation, House Committee on the Judiciary (Sept. 28, 2016).  

At five additional hearings during the 2016 presidential campaign, Republican committee chairs asked questions about Clinton’s e-mail server, the Clinton Foundation, or Clinton’s conduct regarding the Benghazi attacks, during their rounds of witness questioning:

  • Hearing on Merit Systems Protection Board, Office of Government Ethics and Office of Special Counsel Reauthorization, House Committee on Oversight and Government Reform (Dec. 16, 2015);
  • Hearing on State Department Reauthorization: A Chance to Strengthen and Streamline U.S. Diplomacy, Senate Committee on Foreign Relations (Mar. 8, 2016); 
  • Hearing on Worldwide Threats to the Homeland: ISIS and the New Wave of Terror, House Committee on Homeland Security (July 14, 2016);
  • Hearing on Fifteen Years After 9/11: Threats to the Homeland, Senate Committee on Homeland Security and Governmental Affairs (Sept. 27, 2016); and
  • Hearing on Document Production Status Update, House Committee on Oversight and Government Reform (Jan. 7, 2016).

The Republican practice of using committees to investigate presidential candidates is continuing.  In the 2020 elections, two Republican Senate leaders, Senate Homeland Security and Governmental Affairs Committee Chairman Ron Johnson and Senate Finance Committee Chairman Charles Grassley, are examining the debunked theory that Vice President Joe Biden, the leading Democratic candidate challenging President Trump, acted improperly in Ukraine. The two chairs requested and received from the Trump Administration’s Department of the Treasury confidential banking records relating to the Vice President’s son, Hunter Biden, and requested travel records for Hunter Biden held by the Secret Service. Additionally, in May 2020, on a party-line vote, the Senate Homeland Security Committee approved a subpoena to a DC lobbying firm for records regarding work done in Ukraine by Hunter Biden.  

This pattern of Republican norm-breaking in investigating Democratic presidents and presidential candidates demonstrates that Attorney General Barr got it backwards: it is congressional Republicans who led the way in using congressional oversight powers to pursue a partisan political agenda.

V. Footnotes

1. See Hearing on U.S. Policy Toward Russia, Part I: Warnings and Dissent, House Committee on International Relations (Oct. 6, 1999); Hearing on A Review of Gore-Chernomyrdin Diplomacy, Senate Committee on Foreign Relations (Oct. 25, 2000); Hearing on The Role of John Huang and the Riady Family in Political Fundraising, House Committee on Government Reform and Oversight (Dec. 15, 16, and 17, 1999); Hearing on Missing White House E-Mails: Mismanagement of Subpoenaed Records, House Committee on Government Reform (Mar. 23, 2000); Hearing on The 1996 Campaign Finance Investigations, Senate Committee on the Judiciary (May 24, June 6, and June 21, 2000); Hearing on The Justice Department’s Implementation of the Independent Counsel Act, House Committee on Government Reform (June 6, 2000); Hearing on The 1996 Campaign Finance Investigations, Senate Committee on the Judiciary (June 27, 2000); Hearing on Has the Department of Justice Given Preferential Treatment to the President and Vice President?, House Committee on Government Reform (July 20, 2000); and Hearing on Contacts Between Northrup Grumman Corporation and the White House Regarding Missing White House E-Mails (Sept. 26, 2000).