January 01, 2018 Investigating the Executive Branch

Investigating the Executive Branch

by Douglas Kriner

The textbook view of separation of powers is abidingly simple: Congress enacts the laws while presidents faithfully execute them. However, reality is not so straightforward. Presidents have long chafed against constitutional limits on their power; and in perhaps the most direct challenge to cherished notions of checks and balances, presidents since the dawn of the Republic have claimed the power to effect policy change unilaterally. From Washington’s Proclamation of Neutrality to Donald Trump’s travel ban, presidents have repeatedly ordered major changes in policy without seeking any prior congressional approval.

Congress has considerable constitutional tools to combat presidential power grabs. It can enact new legislation overturning executive actions. The legislature also retains the power of the purse on which virtually all presidential initiatives ultimately depend. However, when trying to rein in a wayward president, a fragmented Congress often proves no match for the unity and energy of the executive. The inherent difficulty of collective action coupled with a legislative process riddled with procedural hurdles and super-majoritarian requirements place Congress at a distinct institutional disadvantage vis-à-vis the executive. These deficits are only magnified in an era of intense partisan polarization in which partisan loyalties routinely overwhelm institutional ones. Congress’ repeated failures to check presidential overreach legislatively have fueled jeremiads lamenting the rise (or return) of an “imperial presidency.”

While the pendulum of power has undoubtedly swung from one end of Pennsylvania Avenue to the other, Congress is not powerless to push back against presidential aggrandizement. However, Congress routinely relies on its ability to check the president through more informal means. Central among these non-legislative powers is Congress’ ability to investigate alleged misconduct by the executive branch. Investigations are a particularly valuable tool precisely because Congress can often investigate even when it cannot legislate. Commencing an investigation does not require administration critics to assemble majorities, and often supermajorities, across two chambers of Congress to pass legislation that must then survive a presidential veto. Rather, even individual members, if suitably motivated, can provide the impetus for a high profile investigation.

Of course, investigations in and of themselves cannot compel presidents to change course. However, from McCarthy and the Red Scare to the Fulbright hearings, from Watergate to Russiagate, congressional investigations of the executive branch have produced some of the most dramatic and consequential moments in American political history. By shining a light on alleged executive misconduct and battling the administration in the court of public opinion, investigators can bring popular pressure to bear on the White House in ways that materially affect politics and policy.

Three Pathways of Investigative Influence

Over the past century, congressional investigators have held more than 10,000 days of hearings into alleged misconduct by actors within the executive branch. These investigations span the gamut from sensational probes that rattled the very foundations of presidential administrations—for example, Watergate, Iran-Contra, and the Whitewater/Lewinsky scandal—to more targeted investigations focused on allegations of misconduct in more narrow policy areas—such as conflicts of interest in government contracting or improper influence over regulatory agencies. Many congressional investigations are consciously designed to play to the TV cameras and generate headlines. But are most investigations mere political theater? Or do investigations routinely produce significant changes in policy outcomes?

Although investigations by themselves cannot compel presidents to change their behavior, there are three pathways through which investigations routinely prompt significant change. The first two pathways illustrate how investigations can produce significant policy change in the policy area targeted by investigators. The final pathway is more indirect and describes how investigations can have broad consequences for policymaking in areas unconnected to the inquest itself because they shape presidents’ calculation of the costs they stand to incur should they push policy too far from congressional preferences.

Spurring Legislation

One way in which investigations can produce tangible changes in public policy is by spurring the passage of legislation that would never have passed in the absence of the political pressure generated by the congressional probe. Congress faces a number of institutional barriers when trying to enact legislation checking presidential overreach. First, for many legislators partisan loyalties trump institutional ones. As a result, the president’s co-partisans often act aggressively to block any effort to push back against their party leader in the White House. Second, the cumbersome legislative process with its many veto points makes it difficult for administration opponents to pass legislation checking the president even when there is majority support for doing so. And ultimately, any successful legislation must confront a president wielding the veto pen.

In normal conditions, these barriers all but preclude effective legislative redress. However, a high profile investigation can transform the political environment in ways that make it much easier for administration opponents to move legislation through the process. Perhaps most importantly, investigations can significantly erode public support for the administration and stoke popular demands for legislative action to rein in the executive branch. In so doing, investigations can change the strategic calculations in play for many members of Congress. For example, many of the president’s co-partisans, who previously judged that their electoral interests were best served by standing behind their party leader in the White House, may come to conclude that they are better off distancing themselves from the president and supporting legislative reform. The public scrutiny and political pressure generated by a successful investigation may also affect the president’s decision of whether or not to veto any legislation that successfully passes both chambers of Congress. Vetoing legislation that enjoys significant public support is politically costly. As a result, an investigation may encourage presidents to reluctantly sign legislation that they oppose—even if the veto would almost certainly be sustained—because the political costs of vetoing it are simply too high.

Consider the legislative legacy of the Church Committee’s investigation into the intelligence apparatus. While 1974 may be best remembered for the culmination of the Watergate scandal and the resignation of President Nixon, it also yielded sensational headlines alleging systematic abuses by American intelligence agencies. In response, the Senate created a special committee headed by Idaho Democrat Frank Church to investigate. Over the next year and a half, the Church Committee delved into a dark world of CIA-sponsored assassinations, poisoned dart guns, and domestic spying on American citizens, including Martin Luther King Jr.

The committee’s work did not win universal plaudits. Many on the right accused Church and colleagues of endangering national security by publicly airing the CIA’s dirty laundry. However, the high profile hearings and public outrage they produced transformed the political climate and spurred legislative action to rein in future abuses. Most directly, the investigation led to the creation of permanent select intelligence committees in both chambers charged with exerting greater oversight over the intelligence apparatus—a move to bolster Congress’ institutional capacity that was first proposed and defeated more than twenty years prior. But the political pressure generated by the investigation also contributed to the passage of other legislation including the Foreign Intelligence and Surveillance Act (FISA) of 1978, which placed clear statutory limits on domestic electronic surveillance. FISA’s influence was both immediate and long-lasting as President George W. Bush’s later authorization of warrantless wiretaps on electronic communications involving American citizens during the war on terror proved controversial precisely because it violated provisions of the 1978 act.

Preemptive Presidential Action

Leading to the passage of new legislation is not the only way in which investigations can produce important changes in public policy. Rather, investigations may also prompt presidents to make policy concessions on their own initiative. Presidents may make unilateral concessions for at least two reasons. First, presidents may anticipate that the public pressure for action generated by an investigation will make legislation more likely. With Congress poised to enact dramatic shifts in policy, presidents can act unilaterally to make concessions in the hopes of sapping energy for more sweeping legislative changes.

This is precisely what happened in President Ford’s initial response to the Church Committee investigation. Sensing the momentum building on Capitol Hill for major change, Ford acted swiftly in February 1976, issuing an executive order, dubbed “a preemptive end-run on the Congress” by the press—making concrete, but somewhat limited changes by reorganizing the intelligence agencies and banning political assassinations. Ford’s gambit mollified many Republican critics and sapped support for more robust legislation on this front.

Investigations may also encourage preemptive action by the White House even when new legislation on Capitol Hill is unlikely.

Rather than seeking to preempt legislation, presidents may make unilateral policy concessions in the hopes of shielding the administration from further political costs. Investigations of alleged misconduct cast the administration in a bad light. Lengthy investigations can seriously erode public support for the president and diminish the administration’s stock of political capital. As a result, presidents may determine that their interests are best served by making policy concessions or changing course in the hope of forestalling additional hearings and minimizing the political fallout from an investigation.

In the early 1980s, congressional investigators began to explore the Reagan administration’s lax enforcement of environmental regulations, particularly those relating to Superfund toxic waste sites, and its cozy relationships with industrial polluters. In addition to documenting the snail’s paste of cleanup activity, investigators also brought to light multiple allegations of cronyism, conflicts of interest, perjury, obstruction of justice, and abuse of power. Opinion surveys showed the tide of public opinion turning against the White House on the issue, and a letter from House Republicans to the president warned that the scandal—which some in the press had started calling “sewergate”—could cause significant damage to the party brand name if allowed to fester. To staunch the bleeding, President Reagan executed a quick about-face. He fired the EPA administrator and assistant administrator in charge of the Superfund program, and tapped William Ruckelshaus, who was the agency’s first administrator and enjoyed much stronger pro-environment credentials, to take the helm. With the president’s blessing, Ruckelshaus oversaw a quick surge in environmental enforcement, reversing the lax policies of his predecessor.

Indirect Influence

There is a third, indirect pathway through which investigations in one policy area may affect politics and policy more broadly. Investigations may not simply affect presidential calculations in the policy venue of the investigation itself. Rather, they may also affect presidential behavior more broadly in policy areas unrelated to the immediate focus of an investigation. Presidents who have paid the political costs of a high profile investigation are keen to avoid incurring them again in the future. This may encourage presidents not to stray too far from congressional preferences lest they risk provoking a new bout of investigative fervor on Capitol Hill. Moreover, by weakening the president politically an investigation may embolden his political opponents in Congress and elsewhere, thus reducing the president’s prospects of securing favorable action on other policy priorities.

For example, the direct legislative legacy of the Iran-Contra investigation was exceedingly modest. However, the investigation significantly weakened Reagan’s political position and contributed to a series of important defeats. Most immediately, as the hearings unfolded, Reagan lost two key veto battles over the Clean Water Act and a highway reauthorization bill, and the Senate rejected one of Reagan’s Supreme Court nominees and forced another to withdraw. Without the cloud of Iran-Contra hanging over his head, Reagan may have prevailed in some or even all of these contests with Congress. Instead, the investigation energized administration opponents and undermined Reagan’s efforts to rally congressional support.

Similarly, the years-long inquest into the Obama administration’s culpability for the fiasco in Benghazi accomplished precious little in legislative terms. However, its political consequences, particularly for Secretary of State Hillary Clinton, were almost incalculable. Not only did investigators insure that Benghazi continued to hover over Clinton throughout her campaign for the presidency, but it also led to a discovery of little relevance to the investigation itself but one that ultimately sunk Clinton’s presidential fortunes: the secretary’s use of a private email server during her tenure at the State Department.

Investigations in the Age of Trump

To the surprise of pollsters and much of the political elite, in 2016 the political neophyte Donald J. Trump pulled off one of the most unexpected wins since the 1948 election of “Dewey Defeats Truman” fame. However, the new president immediately found himself under siege as reports of Russian interference in the election—and possible collusion by some on the Trump team with the Russians—threatened to undermine the legitimacy of his presidency before it began. While Republican committee chairs largely resisted early calls to investigate myriad allegations of conflicts of interest and other improprieties, the demand for an investigation into the Russia matter proved impossible to resist. Matters turned from bad to worse for the president when on May 9, 2017 he fired FBI Director James Comey, who was then-overseeing the Bureau’s own inquiry into Russian interference. Congressional investigators lambasted the move and promised to expand their inquiries into the motives behind Comey’s firing. The intense pressure from congressional investigators played a key role in convincing Deputy Attorney General Rod Rosenstein (the Attorney General Jeff Sessions was forced to recuse himself from all matters relating to Russia because he had failed to disclose meetings with Russian officials during the campaign) to appoint former FBI Director Robert Mueller as Special Counsel to oversee the investigation into Russian influence begun by the FBI.

The end result of both Mueller’s and Congress’ own investigations are impossible to predict. However, the investigation has already precipitated one direct defeat for the president. In a surprising rebuke to a co-partisan president, the Republican controlled House and Senate passed legislation imposing new sanctions on Russia and barring the president from lifting them unilaterally. Trump’s defeat is even more ironic given that this remains one of the few major legislative accomplishments of the 114th Congress thus far.

The Russia investigation, an omni-present sword of Damocles hovering over Trump’s head, has also significantly weakened the president’s political position. Within his first 100 days in office, President Trump earned the dubious distinction of becoming the most unpopular president in history at such an early stage of his presidency. With his poll numbers in the doldrums, President Trump has found it increasingly difficult to cajole other actors to move forward on key priorities from repealing and replacing the Affordable Care Act to building his long-promised wall along the Mexican border. It is impossible to quantify exactly how much of Trump’s frustrations to date are attributable to the political damage caused by the Russian investigation; nevertheless, it has undoubtedly played a complicating factor.

Throughout American history investigations have been an important tool through which administration opponents in Congress have pushed back against an ascendant executive. Investigations afford an admittedly imperfect and conditional check on presidential overreach; they are far from a panacea for an interinstitutional balance of power that often seems dangerously tilted toward the president. However, they do provide the president’s opponents with a tool that is available when other constitutional mechanisms, such as the power of the purse or the power to enact new legislation, are not.