New York Times Magazine: These Democrats Will Soon Have the Power to Investigate the White House. How Far Will They Go?
At noon on Jan. 3, the 435 members of the House of Representatives of the 116th Congress will convene for the first time in the Capitol. The chaplain will offer a prayer, the clerk will lead the chamber in the Pledge of Allegiance and a roll-call vote will be held to elect Nancy Pelosi speaker of the House. Then the new speaker will grasp the gavel and swear in the representatives-elect — their right hands raised, some of them clutching Bibles or Torahs or Qurans in their left. There will be speeches and family photos and, among the Democrats, who will now be in the majority, much celebration. But before any of that happens, Representative Elijah Cummings will have sent out letters.
One letter will have been jointly addressed to Health and Human Services Secretary Alex Azar, Homeland Security Secretary Kirstjen Nielsen and acting Attorney General Matthew Whitaker, demanding the age, gender, country of origin and current location of every child who was separated from his or her parents under the Trump administration’s immigration policy. Another will have gone to Pat Cipollone, the White House counsel, asking for the identities of any senior White House officials who have used — as Hillary Clinton once did — nongovernment email accounts to conduct official business.
The White House chief of staff will have received a letter, also addressed to the heads of multiple federal agencies, requesting information and documents about the use of government-owned aircraft for personal travel and private aircraft for official travel. Outside the government, the Trump Organization will have received one asking for a complete accounting of all the payments it has received from foreign governments or foreign-government-owned entities since Donald Trump’s election. Each letter will have been written on stationery bearing the seal of the House of Representatives Committee on Oversight and Government Reform and signed with Cummings’s looping signature over the word: “Chairman-designate.”
Elected to the House in 1996, Cummings, 67, represents a majority-African-American district anchored in Baltimore. He is a son of two former sharecroppers turned Pentecostal ministers; his bald head and booming baritone project a ministerial — and authoritative — presence. Until now, Cummings’s greatest national renown came in 2015: During the riots that followed Freddie Gray’s death from injuries he sustained in a Baltimore police van, Fox News broadcast live coverage of the congressman walking through the city’s streets, bullhorn in hand, urging calm and shouting at protesters to go home.
“I’m not trying to do anything extraordinary,” Cummings told me of the letters. “I’m trying to do what the Constitution says I’m supposed to do.” It was election night, and he was at a small party in Baltimore, where he had just been informed by a colleague, Representative John Sarbanes of Maryland, that the networks were declaring that Democrats would have a majority in the House of Representatives for the first time since 2011. “Mr. Chairman!” Sarbanes said in breaking the news.
The midterm results effectively brought an end to Trump’s legislative agenda, or at least the parts of it that Democrats find objectionable. But the victory gives Democrats little legislative power of their own. If by some miracle any Democrat-authored House bill makes it through the Republican-controlled Senate, Trump’s veto pen awaits.
What the House Democrats will have, however, is oversight authority: the ability to hold hearings and request documents and, if necessary, issue subpoenas to uncover and expose all the incompetence and misconduct and outright corruption that they suspect permeates the executive branch under the current occupant of the White House. “Make no mistake, Democrats will honor our constitutional responsibility to exercise oversight of the Trump administration and get the American people the answers they deserve,” Pelosi said in a statement. “Voters delivered a check and balance on the president that will hold him and his administration accountable for the abuses of power and culture of corruption that have consumed Washington.” Trump is already besieged by the investigation led by Robert Mueller, the special counsel, into Russian interference in the 2016 elections and by multiple probes by the United States attorney’s office for the Southern District of New York into his family business. In January, he will face a Democratic-controlled House of Representatives that suddenly has the power to open a third investigative front against him — power that will reside, in large part, in Cummings’s office.
That power is both broad and subtle. The Oversight and Government Reform Committee’s mandate is investigation, across the whole range of federal government operations — and even into the private sector. (The three-year congressional investigation into the use of steroids in Major League Baseball in the 2000s was a House Oversight production.) Other committees have the power to investigate, too, but none have so expansive a remit. “Oversight,” says former Representative Henry Waxman of California, the Democratic chairman of the committee from 2007 to 2009, “has jurisdiction over the world.”
This has given Cummings’s predecessors a unique ability to shape the public perception of recent presidencies — particularly when, as will be the case in January, it is a president of the other party. Many of the familiar details of the George W. Bush administration’s outing of the covert C.I.A. agent Valerie Plame, emergency-response failures during Hurricane Katrina and disastrous reconstruction of Iraq were ferreted out by Waxman, who led the Oversight and Government Reform Committee for the last two years of Bush’s second term. The congressional investigations of the Obama administration — into claims that the Internal Revenue Service targeted Tea Party groups and that the Justice Department allowed guns to be illegally trafficked across the Mexican border — that dominated Fox News chyrons after Republicans took back the House in 2011 were started by Waxman’s Republican successor, Darrell Issa.
As a rule, the Oversight and Government Reform Committee is a sleepy place when the same party controls Congress and the White House. But even by these standards, the committee’s performance during the first two years of the Trump administration has been unusual. Under the chairmanship of Representative Jason Chaffetz of Utah and then, after Chaffetz resigned in June 2017 and took a job at Fox News, Representative Trey Gowdy of South Carolina, the committee essentially turned a blind eye toward the executive branch. On matters big (like the firing of the F.B.I. director, James Comey, or the administration’s botched response to Hurricane Maria) and comparatively small (like Trump’s decision to revoke the security clearance of the former C.I.A. director John Brennan), the Oversight Committee did not seem interested in doing much real oversight.
“If the president’s party on Capitol Hill becomes subservient to the executive branch and just becomes an appendage of that, then Congress basically loses its meaning,” Tom Davis, the Virginia Republican who was chairman of the committee during part of Bush’s presidency, from 2003 to 2007, told me. “We turn into a parliamentary operation.” Norman Ornstein, a congressional scholar at the American Enterprise Institute, puts it even more bluntly. “Looking back over the first two years of the administration,” he says, “I can’t point to a single example, House or Senate, where any committee or subcommittee actually fulfilled its role of doing oversight.”
Over the past two years, as the committee’s ranking member, Cummings issued 64 subpoena requests; they were requests because the minority party can’t issue subpoenas without the majority’s approval. Chaffetz and Gowdy rejected them all. And even when Chaffetz or Gowdy did ask the Trump administration for information, they didn’t push very hard. “I was able to get them to jointly request documents that we needed to do our job,” Cummings told me, “but when the administration basically said, ‘Screw you’ — and the administration basically said that to every request — they refused to back it up with a subpoena.” Indeed, the first requests Cummings will send out as the incoming Oversight chairman — the letters about family separation, nongovernment emails and government-owned aircraft for personal travel — will be those that Chaffetz and Gowdy jointly sent with him over the past two years and that the administration largely ignored.
At the time, Cummings counseled his Republican colleagues to put aside the politics of the moment and to think long-term. “I get in these guys’ ears, and I talk to them heart to heart,” Cummings says. “I told them, ‘Trump is 72. I’m 67. You all are still young guys. Why are you trying to carry this guy’s water? After he’s dead, you’re going to be living with this [expletive].’ ”
Congress’s oversight responsibilities originated from an incident on Nov. 4, 1791, when a 1,400-soldier military expedition led by Arthur St. Clair, then governor of the Northwest Territory and a former general officer in the Continental Army during the Revolutionary War, was routed in what is now Ohio by a confederacy of warriors from three Native American tribes. Nearly 700 soldiers were killed and 300 wounded. The House of Representatives established a select committee to investigate the defeat and authorized it to “call for such persons, papers and records as may be necessary to assist their inquiries.” President George Washington was initially concerned that Congress had overstepped its bounds. But after Washington’s cabinet — including Secretary of State Thomas Jefferson and Treasury Secretary Alexander Hamilton — unanimously counseled him otherwise, he agreed to cooperate with the investigation, turning over the documents that had been requested.
In the 226 years since the committee investigated — and ultimately absolved — St. Clair, Congress has performed its oversight and investigative functions with varying degrees of enthusiasm, competence and responsibility. For every Senate investigation into the Teapot Dome scandal — which brought down Albert Fall, Warren Harding’s secretary of the interior, in 1923 for accepting hundreds of thousands of dollars in bribes from oil barons — there’s Senator Joseph McCarthy’s use of his chairmanship of the Committee on Government Operations in the 1950s to search for Communists in the government.
In the decades after Watergate, both the Senate and the House conducted rigorous, and bipartisan, investigations into topics including intelligence-agency abuses and military-procurement fraud, producing meaningful reforms in the process. That heyday came to an end, however, when Republicans took back the House in 1995, giving them control of it for the first time in 40 years. Once Newt Gingrich was installed as House speaker, he merged several House committees with responsibilities to monitor government agencies into a single panel, naming it the Government Reform and Oversight Committee.
The new committee had the broadest oversight jurisdiction of any in Congress — a power Gingrich quickly weaponized against the Clinton administration. He filled over half the G.O.P.’s committee seats with freshmen who arrived on the wave of his Republican revolution, and in 1997 made Representative Dan Burton of Indiana its chairman. An ardent Clinton foe, Burton had already proposed investigating the suicide of the deputy White House counsel Vince Foster — Burton infamously conducted amateur forensics tests, reportedly by shooting melons in his backyard — and how much money the White House was spending on postage to respond to letters that children had written to the Clintons’ pet cat, Socks.
In his six years as chairman, Burton issued more than 1,000 unilateral subpoenas and demanded everything down to the White House holiday-card list. But his Javert act ultimately became too much even for Republicans. For all his exertions, Burton proved unable to find concrete evidence of serious wrongdoing on the part of the Clinton administration. He repeatedly undermined himself, as in 1998 when one of his top aides — Trump’s future deputy campaign manager David Bossie — released transcripts of the jailhouse phone conversations of Hillary Clinton’s old law partner and former Associate Attorney General Webb Hubbell, who was convicted of fraud for overbilling clients, that seemed to implicate Clinton in the overbilling. Democrats later showed that the transcripts had been misleadingly edited, and Bossie was pressured to resign. “We’d just put our foot out,” recalls Henry Waxman, who was the top Democrat on the committee during Burton’s chairmanship, “and he’d trip over it.” Gingrich eventually stopped giving sensitive investigative assignments to Burton’s Oversight Committee.
In 2003, Tom Davis took over as the Oversight Committee chairman and established what became the standard mode of low-key defense when the chairman’s own party is in the White House. “I had to show the party flag,” Davis says of fighting off some Democratic demands for investigations of the Bush administration. But when it came to big issues — like the Bush administration’s slow and poorly executed response to Hurricane Katrina in 2005 or the disgraced lobbyist Jack Abramoff’s contacts with President Bush and other White House officials — Davis, much to the consternation of some of his fellow Republicans, led rigorous investigations. “He had a concern about oversight,” Waxman says, “and he thought the questions we wanted to pursue were legitimate and worthwhile.”
After Democrats took back the House in the 2006 midterms, Waxman became Oversight Committee chairman. He was an aggressive but careful investigator; unlike Burton, he didn’t initiate an inquiry at the first whiff of scandal, nor did he succumb to some of his Democratic constituents’ blood lust. “I’d go to some of the Democratic clubs back home, and people would say, ‘Why haven’t you imprisoned George W. Bush?’ ” Waxman recalls. “I had to tell them we don’t have the power to imprison people. There was a widespread belief that there’s a prison right there in the Capitol.”
But Waxman’s investigations into the failures of the Coalition Provisional Authority in Iraq, profiteering by the military contractor Blackwater and the Federal Emergency Management Agency’s dangerous policy of housing families displaced by Hurricane Katrina in trailers with unhealthful levels of formaldehyde, among others, harked back to the heyday of post-Watergate oversight. His hearings calling executives from A.I.G. and Lehman Brothers to testify about their role in the 2008 financial crisis helped lay the groundwork for Congress’s most substantial attempt in decades to rein in the financial sector, the Dodd-Frank Wall Street Reform and Consumer Protection Act.
One of Waxman’s most trusted lieutenants on the Oversight Committee was Cummings, who proved so adept at political theater that Waxman and his staff often relied on him to ask the most crucial questions of hostile witnesses testifying before the committee. Even today, Oversight veterans speak in awed tones about a 2007 hearing when Cummings questioned the State Department’s inspector general, Howard Krongard, about claims that he impeded a federal investigation into Blackwater. During testimony, Cummings informed Krongard that committee staff had discovered that Krongard’s brother was at a Blackwater advisory board meeting in Williamsburg, Va.: “This meeting is taking place right now,” Cummings said, “as we speak.” Krongard resigned from the State Department a few weeks later. “It was like a Perry Mason moment,” Waxman says.
During their years in the minority, Cummings and his roughly 35-person committee staff, led by its director, David Rapallo, became skilled at conducting investigations without much political or legal leverage. In 2017, a Democratic investigator for the Oversight Committee, scrutinizing Michael Flynn, Trump’s first national-security adviser, reviewed Flynn’s 2016 security clearance renewal application and noticed that Flynn took a trip to Saudi Arabia in 2015 — during which he claimed to stay at a hotel that did not exist and to attend a conference that did not occur. Robert Mueller went on to investigate Flynn’s suspected efforts to broker a $100 billion energy deal between Saudi Arabia and Russia’s nuclear-power agency.
Combing through the unpublished supporting evidence of an inspector general’s report, Democratic committee staff found emails that appeared to show that Trump, in spite of his own denials, had ordered the reversal of plans to move the F.B.I. headquarters to a suburban location and off Pennsylvania Avenue, where it currently sits across from the Trump Hotel — a reversal that would benefit his hotel by preventing commercial developers from building a competing property across the street. “The Cummings people did a lot of great investigative work without formal tools,” says Phil Barnett, who was the staff director of the Oversight Committee under Waxman. “Now they will have formal tools.”
In September, Pelosi invited Cummings to her Capitol office, along with two other Democratic congressmen who, if the party won the House in November, would become chairmen of committees with powerful investigative mandates: New York’s Jerrold Nadler, of the Judiciary Committee, and California’s Adam Schiff, of the Intelligence Committee. There they were joined by several Democratic representatives who worked previously as prosecutors: Joe Kennedy of Massachusetts, Dutch Ruppersberger of Maryland and Eric Swalwell of California. Pelosi told the group that they shouldn’t take the outcome of the midterms for granted. At the same time, she said, the Democrats needed to begin thinking about how they would conduct oversight of the Trump administration — and the strategizing needed to start now.
Like Cummings, Nadler and Schiff chafed at their committees’ Republican chairmen’s lack of interest and outright interference during the Trump presidency. Mueller’s investigators have spent months building an increasingly sweeping case about Russian meddling in the 2016 elections, implicating and indicting several of Trump’s closest associates to date. But under the chairmanship of the Republican Devin Nunes of California, the House Intelligence Committee — which has a clear constitutional authority to conduct some of the same investigatory work as Mueller — produced a report that breezily concluded that there was no collusion between the Trump campaign and the Russian government and that, contrary to the official consensus of the American intelligence community, the Russian government was not even seeking to help elect Trump. Committee Democrats said they were shut out of the drafting process and publicly condemned the report.
Nunes also initiated parallel investigations of the F.B.I. and the Justice Department for what he claimed was “criminal activity and fraudulent behavior” in an effort to hurt Trump’s campaign — investigations that Schiff contends actively sought to thwart exactly the kind of oversight the committee was supposed to be doing. “I think that the mission for the chairman has been protecting the White House, protecting the president and furthering a political narrative which is completely at odds with the facts,” Schiff told me.
When Immigration and Customs Enforcement, following a new and unprecedented Trump administration policy, separated more than 2,300 immigrant children from their families at the Southern border this spring, the Republican-led Judiciary Committee did not hold a single oversight hearing for Homeland Security Secretary Kirstjen Nielsen, whose agency falls under the committee’s oversight jurisdiction. Other committees, too, had their own lists of Trump-administration oversight oversights: the Natural Resources Committee’s lack of interest in Interior Secretary Ryan Zinke’s suspected ethical and managerial misdeeds, which have been the subject of at least 17 federal investigations, for instance; or the Veterans Affairs Committee’s refusal to look into whether three Trump friends, all Mar-a-Lago members, improperly influenced a $10 billion contract to modernize veterans’ health care records. “The oversight job, after two years of Donald Trump,” says Representative Jamie Raskin, a Maryland Democrat who serves on both the Oversight and Judiciary Committees, “is like coming upon a 73-car pileup on the highway.”
With so many targets, and so many hungry Democrats, “there’s the potential for oversight fratricide next year,” says a senior Democratic official on the Intelligence Committee, noting the overlapping jurisdictions of the various committees. There’s also the potential for distraction. “The question is, do you want to be the Breaking News Committee that just investigates the issue of the day?” asks Swalwell, who sits on the Judiciary and Intelligence Committees. “Or do you want to look at broader, longstanding core issues?” At that September meeting and at multiple gatherings of members and their staffs over the subsequent weeks and months, an initial strategy — and a division of labor — began to take shape.
Schiff, the incoming Intelligence Committee chairman, will play a major role. One of his top priorities will be protecting — and assisting — Mueller’s investigation, and one of his first acts in the new Congress will be trying to get to the bottom of one of the more tantalizing mysteries of the whole Russia affair: Whom did Donald Trump Jr. speak to on his phone in between calls setting up the June 2016 Trump Tower meeting with Russians peddling dirt on Hillary Clinton? Trump Jr. claims he can’t remember, and the call appears as a blocked number on his phone records. Nunes refused to ask Trump Jr.’s cellular provider for the blocked number. “That phone call may lead to a place the Republicans didn’t want to go,” Schiff says, “and so they were unwilling to get the answer.” Schiff wants the answer and will press the provider for it.
Nunes’s investigation may not have produced much, but under his leadership, the committee did conduct hundreds of hours of interviews: with Trump Jr., Jared Kushner, Roger Stone and other key figures in the Russia matter. On Nunes’s orders, almost all the transcripts have remained in the sole possession of the committee, which has, among other things, kept them out of the hands of Mueller’s investigators. Schiff plans to publicly release the remaining transcripts when the new Congress convenes in January.
In November, Michael Cohen, Trump’s former lawyer, pleaded guilty to lying to Congress about a Moscow real estate project Trump pursued. Cohen was caught by Mueller’s investigators only because he publicly released his opening statement to the Intelligence Committee. Referring to the unreleased transcripts, Swalwell told me: “I just wonder how many more crimes are just sitting in the basement of the House Intelligence Committee that Mueller doesn’t know about because he hasn’t seen that they lied to us.”
Schiff is also interested in examining Trump’s business dealings — including whether Russians laundered money through the Trump Organization — from a counterintelligence perspective. “What would be most compromising to our nation and our national security is if a hostile foreign power has leverage over the president of the United States,” Schiff told me. Or as the senior Democratic Intelligence Committee official says: “Whenever Putin is alone in a room with Trump with just the two of them and their translators, like they were in Helsinki, is Putin reminding him that he has an Excel spreadsheet of how many rubles are parked in Trump Tower?”
One afternoon in late November, Nadler, the incoming Judiciary Committee chairman, was in his congressional office. The walls were bare, save some exposed nails. All the pictures and framed bills that once hung on them were piled in a plastic-lined dumpster in the reception area — “Jerry’s bucket of achievements,” Daniel Schwarz, Nadler’s communications director, joked. Nadler was in the process of moving to a space closer to the Judiciary Committee’s offices.
The congressman from the Upper West Side became the top Democrat on the committee in December 2017 after John Conyers, the long-serving Michigan representative, resigned from Congress over sexual-harassment claims. Nadler has been a Trump bête noire since the 1980s, when, as an assemblyman, he fought to prevent Trump from building a proposed 150-story building in his district, where Trump hoped to live in an apartment on the top floor. After his election to Congress in 1992, Nadler made sure Trump didn’t receive federal mortgage guarantees for the project. “I didn’t want him to be the tallest man in the world there,” Nadler told me. Trump described Nadler in his 2000 book, “The America We Deserve,” as “one of the most egregious hacks in contemporary politics.”
The Judiciary Committee is endowed with the authority to start impeachment proceedings against a president, as committee Republicans did against Bill Clinton in 1998, and as committee Democrats did against Nixon in 1973. Nadler is thus probably the committee chairman most likely to find himself caught between the expectations of the Democratic base and the political and institutional realities their representatives are now subject to.
“If they’re successful at doing their jobs, then they’ll bring forth more information about Trump’s wrongdoing, and the logical conclusion will be impeachment,” says Kevin Mack, lead strategist for the liberal billionaire Tom Steyer’s group Need to Impeach, which has gathered nearly 6.5 million signatures supporting Trump’s impeachment. And if Democrats don’t impeach Trump? “What you’re saying by not attempting to stand up for the rule of law is that the rule of law is not the most important thing to you,” Steyer told me. “Complaining about something is not doing something about it.”
When Nadler ran to succeed Conyers as the top Democrat on the Judiciary Committee, his pitch included a leaflet he wrote and distributed to his fellow Democrats, which said that he was “our strongest member to lead a potential impeachment.” Since clinching the chairmanship, however, Nadler has become much more circumspect, at least publicly, about impeachment. “It’s too early,” he told me in November. “It’s a very momentous step. It has real consequences.” Even if Robert Mueller or congressional Democrats uncover what he concludes are impeachable offenses, Nadler told me, he would want to begin impeachment proceedings only if he believes that, by the end of the process, there would be an “appreciable fraction of the Trump voters” who support Trump’s impeachment.
“You don’t want to tear the country apart,” Nadler said. “You don’t want a situation where for the next 30 years half the country is saying, ‘We won the election; you stole it from us.’ ” He added an interesting caveat, however: “Now notice I didn’t say an appreciable fraction of Republican senators. It’s the Trump voters. Because it might be — I’m not saying it is, but it might be — that the Republican Party becomes so one-sided, or such a cult group in effect, that no matter what the evidence is, no matter what the malfeasances are, they” — Republican senators — “would never agree to break from the president.”
Still, as he sat in his emptying office, Nadler did not sound like someone eager to lead a potential impeachment. “The fact that you find impeachable offenses and the fact that you think you can prove impeachable offenses,” he said, “doesn’t necessarily mean the offenses rise to the level of importance where you should impeach.” When I spoke to Nadler a couple of weeks later, after federal prosecutors said that Trump directed Michael Cohen to make payments in violation of campaign-finance laws to squelch a sex scandal, he still sounded cautious. “I don’t think things have changed, really,” Nadler said. “We know a little more, but there’s a lot more to know.”
In the days after the election, Nadler began firing off “preservation letters” to the White House, the Justice Department and other agencies warning them that “concealing, removing or destroying” any documents related to Jeff Sessions’s firing or Mueller’s investigation “may constitute a crime.” In January, the committee’s first order of business, Nadler said, will be to call Matthew Whitaker, the acting attorney general, to testify; Whitaker, who has a thin legal résumé, was tapped by Trump to replace Sessions and will hold the job until the official nominee for attorney general, William Barr, is confirmed by the Senate. From the moment Whitaker was appointed, Nadler told me, “It was clear that Trump wanted him to be his hatchet man.” When Whitaker comes before the committee, Nadler said, he will ask him: “Have you told Mueller not to follow some line of inquiry? Have you told him not to indict somebody? What instructions have you given to him, if any? Have you communicated with the White House about these matters in any way or with the president’s lawyers in any way? What have you told them? Those kinds of questions.”
Nadler’s to-do list goes far beyond Whitaker. There is the Justice Department’s decision not to defend the Affordable Care Act in a lawsuit brought by Republican state attorneys general; the Trump administration’s family-separation policy; whether the White House improperly interfered with the F.B.I.’s background check into Supreme Court Justice Brett Kavanaugh.
“In the last two years, the Republicans in Congress, their basic idea has been: Let the Trump administration do what it wants, let there be no oversight,” Nadler said. In a normal presidency, this would have been problematic, but with Trump in the White House, Nadler argued, “there are real challenges to the democratic norms that we haven’t seen the likes of since the Civil War.” The result, he said, is that “we have a real crisis now.”
On the last Thursday in November, the House Oversight Committee held what was most likely its final hearing of the year, and Cummings’s final hearing as the ranking member. It was devoted to the 2017 hurricane season and the Trump administration’s response to Hurricane Maria, and Cummings believed it was long overdue. He initially asked Gowdy to hold hearings on the matter back in September 2017, nine days after Maria devastated Puerto Rico. Gowdy refused and continued to turn down requests for a hearing for more than a year. Now Gowdy had finally scheduled the hearing in the lame-duck session on a day Democrats were holding their leadership elections. As a result, when the hearing began, only six of the committee’s 41 members were present.
“Our Republican colleagues have promised to accommodate us, and I appreciate it,” Cummings said when it was his turn to speak, “but they would not move the hearing to a different day, and they would not even move up the start time by 30 minutes so we could ask Administrator Long our questions.” He was referring to the head of FEMA, Brock Long, who was testifying that day. He lit into Gowdy. “I greatly respect the chairman, as a person, as an attorney and as a friend, but this is not transparency, this is not accountability and this is certainly not oversight.”
If Cummings is perceptive of the tactics being used against him to defend a president, it’s because, not so long ago, he was the one doing the protecting. He became the top Democrat on the committee when Republicans took back the House in the 2010 midterms, and the new chairman, Darrell Issa, promised to hold hundreds of hearings into the Obama administration. Cummings was the first line of defense against the coming investigative onslaught. “Mr. Cummings was very smart and deliberate and methodical, and was a perfect foil to Darrell,” says Kurt Bardella, Issa’s former spokesman and later a spokesman for Breitbart, who last year renounced the G.O.P. and became a Democrat. Cummings batted back Republicans’ most incendiary charges against Obama by pointing to the lack of any real evidence, and repeatedly provoked Issa into own goals, like the time Issa received negative coverage for ordering Cummings’s microphone cut off when Cummings tried to make a statement at the end of a hearing.
Cummings proved a similarly effective opponent to Gowdy on the special committee investigating the 2012 attack on the United States mission in Benghazi, Libya — which Gowdy led and on which Cummings was the top Democrat — and then to Chaffetz, who succeeded Issa as Oversight Committee chairman. Cummings’s friends are quick to point out that Issa, Chaffetz and Gowdy will not be serving in the next Congress. “They all quit after having to deal with Elijah!” Waxman says.
“Darrell pursued headlines,” Bardella told me. “He wanted visibility and publicity.” During the Trump presidency, he argues, “Cummings can focus on substance, and the reality is, they have so much more to work with on substance than we did. Our approach was, there could be corruption, there could be waste, fraud and abuse. We already know those things exist with Trump. There’s no fishing expedition required.”
And yet, those Obama-era investigations made an indelible mark on politics. Congressional Republicans may never have been able to prove that Obama’s I.R.S. unfairly singled out Tea Party groups for scrutiny; or that Eric Holder tried to hide the facts about a failed Justice Department investigation into gunrunning along the Mexican border, called Fast and Furious, that resulted in the death of a Border Patrol agent; or that Hillary Clinton, as secretary of state, tried to cover up a bungled response to the Benghazi attack — but you might not know this if you spend much time on conservative media or the Trump rally circuit.
Burton’s probing of the Clinton administration occurred in the old-media landscape of the 1990s, when the expectations of the press — and of the public — were that for a congressional investigation to be considered successful, it needed to produce the factual goods. But Issa and his successors, by virtue of right-wing-media megaphones like Fox News (which was in its infancy during the Clinton years) and Breitbart, were able to conduct investigations as a kind of post-truth theater, where proving charges was less important than making them, loudly and repeatedly. By the time of the 2016 presidential campaign, a Fairleigh Dickinson University survey found that 44 percent of Republicans and a full half of Trump supporters believed it was “definitely true” that “as secretary of state, Hillary Clinton knew the U.S. Embassy in Benghazi was going to be attacked and did nothing to protect it.”
The challenge of conducting oversight in this post-truth political environment is not lost on Cummings and other Democrats. “I watch Fox News every now and then,” Cummings told me, “and the reason why I watch Fox News is, I’m trying to see how they can twist things around and make them sound so like the Democrats have some conspiracy against the president — and they do a good job of it.” Democrats worry about what will happen if they turn up concrete evidence of presidential wrongdoing in their investigations and a sizable portion of the electorate simply refuses to believe it.
It’s also very likely that Trump, having already broken so many other norms, will have few qualms about breaking the norm of cooperating, or even feigning cooperation, with congressional investigations. “If the president treats the Congress the way he has Bob Mueller, we can expect the administration to respond to many of our requests with stonewalling and invective,” Schiff says. “It’s very possible the administration will decide they’re not going to compromise on anything, and litigate everything.” David Bossie, the Dan Burton aide who stepped down for misleadingly editing and releasing the Hubbell transcripts, remains an informal adviser to Trump; he has gone so far as to suggest in a recent interview with Jacqueline Alemany of The Washington Post that the White House should encourage people subpoenaed by House Democrats to plead the fifth or even flee the country. Congressional Republicans have also sent a message by picking Representative Jim Jordan of Ohio, perhaps Trump’s most staunch and outspoken defender on Capitol Hill, to serve as the top Republican on the Oversight Committee. “When the caucus picked Jordan,” Tom Davis says, “they really picked confrontation.”
The most disheartening prospect for Democrats is what that confrontation could ultimately reveal: just how little leverage — political and legal — a divided Congress has in a fight with a president like Trump. If Trump administration officials refuse to comply with subpoenas, Democrats could vote to hold them in contempt of Congress. But that’s a largely toothless gesture. Even if the House does succumb to the Democratic base’s desire and impeaches Trump, the G.O.P.-controlled Senate would almost certainly never convict. What’s more, impeachment could backfire. “You don’t want to reward an offender like the president with martyrdom,” Eric Swalwell, who’s currently exploring his own presidential run in 2020, told me. “That would be the worst outcome — that he gets more popular, that his base grows because of it.”
Surveying the task ahead of him, Cummings says, “This will be one of the hardest things I’ve ever done.” On a recent afternoon, he sat in his congressional office and contemplated the possibility that he’d fall short. In the past year and a half, Cummings was hospitalized for nearly five months because of a serious knee infection and complications from a heart-valve replacement. “My saddest thought,” he said, “is that there will be damage done which will not be corrected during my lifetime and perhaps for a long time.”
Democrats realize that they’ll have to wage their battle in the court of public opinion — and Cummings believes that will require eventually winning over at least some of his Republican colleagues to his side. “There is one incentive for them: love of country and democracy,” he said. “We have to try to help them get there. We have to try to help their constituents see what they’re doing and what they’re not doing and try to bring them back to some sense of normalcy.”
Seated at the top of the dais in the Oversight Committee hearing room at the sparsely attended hearings into Hurricane Maria last month, Cummings tried to get a head start on doing just that. He noted how FEMA hadn’t been responsive to his entreaties for information over the last two years. He told Long, the FEMA head, that his attitude would have to change and that he expected answers to a new a batch of questions before the end of the year — after which Cummings would be the one holding the gavel.
“I guarantee you, Administrator Long,” Cummings said, raising his hand and pointing a long, knobby finger, “this hearing will not be your last before this committee.”