Five ways congressional investigations could change in the next Congress and beyond
The future of congressional investigations could be defined by Republican eagerness to probe private industry and less willingness to defer to the Justice Department, experts say.
House Republicans promised an avalanche of investigations when they took over the House after the 2022 midterms, which included an impeachment inquiry into President Biden based in large part on his son Hunter Biden’s foreign business activities; an investigation on the COVID-19 pandemic; probes into how Facebook and Twitter, now known as X, suppressed distribution of certain information; and into how top universities handled antisemitism on campus.
Former counsels for President Biden and former Speaker Kevin McCarthy (R-Calif.) say that the results of the last two years of House GOP investigations — combined with the Supreme Court changing the investigatory landscape — will inform how Congress approaches oversight not only in the upcoming 119th Congress, but beyond.
Impeachment could become more common
Prospects for another impeachment inquiry in the next two years is highly unlikely since Republicans will control both chambers of Congress and are poised to work with President-elect Trump.
But looking beyond the next two years, Richard “Dick” Sauber, a former special counsel to President Biden in the White House, speculated that impeachment inquiries could become more common due to this year’s Supreme Court ruling that largely shields presidents from criminal prosecution for actions they take while in office.
“I suspect that [impeachment] may even be more part of the landscape going forward, because the Supreme Court's immunity decision, for a number of reasons, probably is the death knell to the special counsel investigation by the Department of Justice,” Sauber, now a partner at Kramer Levin, said in an interview.
Sauber said congressional investigators who might investigate presidential wrongdoing would often defer to a special counsel probe before pursuing impeachment.
“The use of a special counsel to investigate allegations of wrongdoing by a sitting president, was sort of a pressure valve in the system … Well, the immunity decision, I think, has probably killed the use of special counsels forever,” Sauber said.
Rep. Jamie Raskin (D-Md.), the outgoing ranking member on the House Oversight Committee and incoming ranking member on the House Judiciary Committee, said that reasoning made sense, noting that outgoing Senate Minority Leader Mitch McConnell (R-Ky.) voted against impeaching Trump after Jan. 6 in part because he said Trump would be subject to the criminal justice system.
“Well, that escape valve doesn't really exist anymore because of the Supreme Court decision. The Supreme Court has said that if a president is at least nominally acting under the core functions of his presidential duties, then he can commit felony crimes and not be prosecuted for them,” Raskin said.
“So I think that that supports, in some sense, this idea that impeachment is the only consequence …. It does remove that particular exit ramp from people who don't want to face actually impeachable and convictable conduct,” Raskin said.
Republicans turn an eye on private sector
Congressional investigations led by both Democrats in the Senate and Republicans in the House focused on private industries and companies, such as those into content moderation policies on social media platforms and investigations into antisemitism on college campuses.
“I expect with full Republican control of both houses of Congress that the trend of private sector scrutiny, and continued investigations into universities, will continue,” said Kim Hamm, formerly general counsel to Speaker Kevin McCarthy (R-Calif.) who now leads the congressional investigations practice at Mayer Brown.
Committees are also getting more public and timely on how they share information, Hamm noted. House Judiciary Committee Chair Jim Jordan (R-Ohio), for instance, released several threads highlighting key excerpts from documents and testimony they obtained regarding Facebook.
“Some committees see that as really powerful to provide this almost like, real-time transparency of the public about what you're doing and the information that you're getting — and you just see these sort of Twitter threads with documents,” Hamm said.
End of Chevron deference could affect investigations
Hamm also said that the end of Chevron deference could heighten the role of congressional investigations. The Supreme Court this year overruled precedent that gave federal agencies great authority to interpret ambiguous laws.
Congress now is grappling how to handle the change in precedent as they write laws. Hamm said that while lawmakers could write deference into statutes, they could also aim to be a lot more specific in their laws — which could lead to a flurry of investigatory activity.
“All congressional investigations are supposed to be a furtherance of a legislative purpose. And so you could see, ‘Well, okay, I'm a committee. I'm thinking of new legislation. I'm no longer going to be able to assume that, that a court will give deference to agencies. I need to write this legislation much more specifically. I need the information to do that,’” Hamm said.
Increased use of National Archives
The National Archives — which holds records from previous administrations — rose in prominence over the past two years. Not only was it at the center of a prosecution into Trump in the now-dismissed classified documents case, it held records from Biden’s time as vice president that Republicans were interested in as they investigated him.
“One I did sort of notice, is that Congress sort of discovered, I think — because I didn't really see previously the exercise of this power — their right to get information from the Archives,” Sauber said.
And if the balance of power in Congress flips in the midterm elections, it is likely that Democrats try to seek records from Trump’s first term in the White House.
“I think you'll see the opposing party to whoever sits in the White House using the archives more going forward, to get some of the historical records that they think might be relevant to whatever it is they're investigating,” Sauber said.
The challenge, though, is if the president exerts executive privilege to prevent release of the documents — a dynamic that frustrated Republicans this congress as they sought Biden records.
“They were of no use to me,” said Rep. James Comer (R-Ky.), chair of the House Oversight Committee. “They could be very useful. They should be very useful.”
“I wanted to cut their budget, but unfortunately, I couldn't get the House Appropriations Committee to go along with me,” Comer said.
Republicans will try to tie up loose ends
Republicans are likely to continue pursuing documents they were not able to obtain in this Congress when the balance of power shifts in the White House.
“Congressional investigators will also push for greater access to agency materials that may have previously been withheld from them, including communications between the private sector and the Biden Administration,” Hamm said. “Some areas that will be of interest include ESG [environmental, social, and governance principles], corporate DEI [diversity, equity, and inclusion] initiatives, and allegations of politically motivated debanking of certain industries (such as crypto, energy) or against conservative-leaning organizations.”