Democrats take cautious view of subpoena powers as they ready investigations

As they prepare to take over the House majority, top Democrats warn that the powerful tool is not a magic wand.
Image: Jerrold Nadler
Jerrold Nadler (D-NY) will oversee investigations of the Trump administration as the likely incoming chairman of the House Judiciary Committee.Alex Wong / Getty Images

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By Mike Memoli

WASHINGTON — Democrats poised to take control of the House in January are building a strategy for investigating the Trump administration on a range of domestic and foreign policy issues and how they may intersect with the president’s business empire. Yet the most powerful tool at their disposal — a congressional subpoena — is being held in reserve for the short term, multiple Democratic congressional officials involved in the decision-making tell NBC News.

Top lawmakers, aides and former congressional officials warn that subpoena power, while potentially a valuable tool for extracting information, is hardly a magic wand. That’s likely to be especially true now, if the Trump administration challenges Democratic-led inquiries as is widely expected.

Rather than begin with what one congressional aide referred to as a “T-shirt cannon” approach of firing off multiple subpoenas immediately, key committees are planning a more deliberate approach, the officials involved say. It will start with targeted requests for information from Trump officials, in some cases directed at lower-level bureaucrats who might be more likely to comply.

Senior aides on the House Oversight and Government Reform Committee, for instance, are combing through dozens of requests already made of the Trump administration to determine what they might seek again. They include issues often pressed by committee members of both parties, like the use of chartered aircraft by cabinet officials, how security clearances are issued to White House staff, and the use of private email by senior officials.

And Democrats remain mindful that because of constitutional questions like executive authority and the separation of powers, subpoena showdowns between previous administrations and opposition Congresses often took years to litigate, in some cases resolving only after the White House had already changed hands.

“The question is, how do you enforce these subpoenas?” said Irvin Nathan, who served as the top lawyer for House Democrats the last time they controlled the chamber. “You have to pick your targets. You have to prioritize and focus on the ones you really need, and where you can win public approval.”

Democrats eager to move forward with what they consider a long-overdue examination of President Donald Trump’s policies on issues like immigration, Russia and the administration’s implementation of the Affordable Care Act also want to take advantage of a perhaps brief window to move forward with legislation the president might support.

“What we are interested in is meeting the needs of America’s working families, to spend our time lowering healthcare costs by reducing the cost of prescription drugs, increasing paychecks by building infrastructure of America — both of those things are things the president said he wanted to do,” incoming House Speaker Nancy Pelosi said Thursday.

But progressive activists are eager for a showdown, hoping that with Democrats wielding power to try and compel documents and witness testimony, they can get immediate answers to questions about the intersection of policy decisions with Trump’s personal finances.

The House Judiciary Committee has identified five priority areas for oversight that will probably initially take the form of multiple hearings in which administration officials are invited to testify. And the House Intelligence Committee is expected to resume the probe of Russia’s interference in the 2016 election to include areas that the current GOP majority declined to explore, including a deeper examination of what financial leverage Russian entities may have had over Trump.

“The president has wanted to draw a red line and say you can't look at my business, but if the business is trying to curry favor with the Kremlin, we can't ignore that,” incoming chairman Adam Schiff, D-Calif., said Sunday on “Meet the Press.”

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Still, Democrats describe subpoenas as a tool of last resort. And the last major clash between a Democratic-led House and a Republican White House offers a cautionary note.

In June 2007, during George W. Bush’s second term, then-House Judiciary Committee Chairman John Conyers, a Democrat, subpoenaed former White House counsel Harriet Miers for records and testimony related to the resignation of U.S. attorneys. The Bush administration asserted executive privilege in informing the committee it would not comply, leading the House to vote a month later to hold both Miers and then-chief of staff Josh Bolten in contempt of Congress and to initiate a civil lawsuit.

It took a year for a federal court to side with the House in the matter. The administration appealed, but the case was ultimately settled in March 2009 — after Bush had left office.

A GOP-led House took a similar approach in 2012 against President Barack Obama’s then-attorney general, Eric Holder, holding him in contempt for failing to fully comply with its subpoena related to the so-called failed Fast and Furious gun-running operation. As in the Miers case, years of litigation ensued until the matter was settled.

Rep. Trey Gowdy, R-S.C., the outgoing Oversight Committee chairman, told NBC News he had often denied Democrats’ requests for subpoenas because there was no guarantee they would be effective. Often, Gowdy said, negotiating a private briefing from administration officials would give lawmakers greater insight into the issue in question without the political showboating that can come from public hearings.

“If you are dying for media attention you send a subpoena,” Gowdy said in an interview. “If you’re sending a subpoena to someone you know is not going to comply with it or you know does not have to comply with it, then it’s all showmanship.”

He said there’s also inherent risk in going to court to enforce a subpoena, an effort that can be both time-consuming and unpredictable.

“Neither side is going to want a lot of case law about the limits of congressional subpoena power. It’s just bad for the institution if you lose,” he said.

Gowdy issued just one subpoena after Trump became president, concerning mismanagement at the Transportation Security Administration.

Other Republican committee chairs have used subpoena power to target the Justice Department as part of their inquiries into the origins of the Russia investigation.

The House Judiciary Committee has issued seven subpoenas, including one compelling testimony from former FBI Director James Comey, who will return for a closed-door grilling Monday. The House Intelligence Committee under current Chairman Devin Nunes, R-Calif., issued 20 subpoenas during the course of its Russia probe.

Democrats believe they are on firm legal ground in the Ways and Means Committee, which can request Trump’s tax returns from the Internal Revenue Service under a power specifically granted to the committee by law. But that doesn’t mean the IRS in the Trump administration is likely to quickly honor the request.

Pelosi said Thursday that obtaining the tax returns “is little more challenging than you might think.”

“I'm sure the White House will resist, so the question is how do we go — where do we go from there?” she told reporters.

As for issues related to Russia, Pelosi indicated Democrats may initially defer to special counsel Robert Mueller and other federal investigators.

Nathan, the former general counsel to the House, said lawmakers needed to think strategically in seeking cooperation from the Trump administration on investigations.

“You would want to start at levels where you’re going to get cooperation and not hostility,” Nathan said. “In order to get to court and be effective there, you have to show that you’ve exhausted your other remedies.”

But, Nathan added, “Because it can be a lengthy drawn-out process and you have less than two years to make your points, you’ve got to move with some dispatch.”

The Democrats’ strategy bears politics in mind, as the White House and congressional Republicans are already warning Democrats about overreaching with non-stop investigations, calling it "presidential harassment."

“My advice would be: Legislate, don't investigate, if you want to be rewarded with the continued opportunity to be in control of the House of Representatives,” Sen. Roy Blunt, R-Mo., said on “Meet the Press” Sunday.

But Matthew Miller, who served as a Justice Department spokesman under Holder, pushed back on the idea that Democrats could pay a price politically if they are seen as being too aggressive in investigating the administration.

“If you find big scandals, the big scandals will be the thing that makes the news, not your over-aggressiveness,” he said. “And I wouldn’t be worried about [it] if I were them because there’s enough evidence of wrongdoing all over the administration that they don’t need to waste their time on fishing expeditions. There are a lot of fish.”

Alex Moe contributed.