Democrats eager to investigate the Trump administration if they seize the House would have the GOP to thank for one of their most potent tools — a sweeping subpoena authority that Democratic lawmakers denounced as an abusive power grab three years ago.
House Republicans changed the rules in 2015 to allow many of their committee chairmen to issue subpoenas without consulting the minority party, overriding Democrats objections that likened the tactic to something out of the McCarthy era.
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Now the weapon that the GOP wielded dozens of times against Barack Obama’s agencies could allow Democrats to bombard President Donald Trump’s most controversial appointees with demands for information. And many Democrats are itching to use it.
“The Republicans have set the standard and, by God, we’re going to emulate that standard,” Rep. Gerry Connolly (D-Va.) told POLITICO.
Oversight would be one of the few concrete goals that Democrats could accomplish with control of only one chamber of Congress and Trump still in the White House. They have a long list of potential targets, including likely demands for Trump’s tax returns and probes into Cabinet members such as Education Secretary Betsy DeVos and Interior Secretary Ryan Zinke.
Before the 2015 rule change, most House subpoenas needed at least some bipartisan cover, requiring a majority vote of committee members and consultation with a panel’s ranking member. The change erased those requirements and allowed the chairmen to proceed unilaterally, although the exact rules vary by committee.
Of the 21 standing committees in the House, 14 allow their chairmen to issue subpoenas on their own initiative, according to the Congressional Research Service.
Officially, House Democrats haven’t said whether they will keep the subpoena authority if they end up in charge. But three years ago, Democrats slammed the move as an abuse of the minority party’s rights and a break with generations of tradition — one they warned would have long-term consequences.
“It sets a terrible precedent and would likely become a permanent fixture for the committee,” New Jersey Rep. Frank Pallone, the top Democrat on the Energy and Commerce Committee, said at a January 2015 hearing. “I think that subpoena authority is a powerful authority and should be used only as a last resort.”
Sixteen Democratic ranking members blasted the move in a February 2015 letter, warning that the move evoked the “abusive model” of unilateral subpoenas used by the likes of former Sen. Joe McCarthy and former House Oversight Chairmen Dan Burton and Darrell Issa.
Even some Republicans worried that giving committee chairmen subpoena power would eventually come back to haunt them.
“I thought it was a mistake then but they did it,” retiring Rep. Joe Barton (R-Texas) told POLITICO in a recent interview. “It’s a powerful tool and you should either vote on it or it should be bipartisan.”
But such warnings fell on deaf ears, amid GOP accusations that Obama’s agencies were blocking or slow-walking their oversight efforts.
One of the most aggressive using the new authority was House Science Chairman Lamar Smith (R-Texas), who issued dozens of subpoenas to the Obama administration. He demanded records on then-Environmental Protection Agency Administrator Gina McCarthy’s text messages, information on two state attorneys general and environmental groups over a probe into whether Exxon Mobil misled investors about the risks of climate change, and emails concerning a study on climate change, among others.
A spokeswoman for Smith did not respond to requests for comment, but he boasted during a September 2016 hearing that he had issued “25 and still counting” subpoenas in his first year and a half of holding that power. Before 2015, the committee had not issued a single subpoena in 21 years.
“Congressional subpoenas should be used sparingly,” Smith said in a October 2017 House Judiciary Committee hearing. “However, their use became the norm due to the obstruction of our efforts to obtain basic information pertaining to public safety, science, and research.”
Smith’s panel was certainly not alone.
In 2015, House Financial Services Chairman Jeb Hensarling (R-Texas) used the unilateral subpoena power for the first time in the panel’s 150-year history, prompting objections from top committee Democrat Maxine Waters of California. Maryland Rep. Elijah Cummings, the top Democrat on the House Oversight Committee, complained that Issa’s 100-plus far exceeded the 78 subpoenas that both Republican and Democratic leaders of that panel had sent between 2003 and 2010 — rarely without concurrence from the minority.
One House Democratic aide said Waters would no doubt want to subpoena the Trump administration if she became the financial services chairman in January. But her decision on whether to keep the unilateral power to do so may depend on how large a majority the Democrats have after the election, and whether committee Democrats would want to have a record on subpoena votes.
Rep. Raul Grijalva (D-N.M), who would be expected to take the gavel at the Natural Resources Committee in a Democratic House, stopped short in a September interview of saying he’d pursue unilateral subpoenas. But he acknowledged that “that’s the logical next step” if the administration did not comply with Democrats’ oversight requests.
Many Democrats argue that Republicans only have themselves to blame for weaponizing the subpoena process, and that their own party should not unilaterally disarm now that the power has been unleashed.
“What goes around comes around,” said former Rep. Bart Stupak (D-Mich.). “Would I expect them to give up the unilateral subpoena power by chairman? No. And I don’t think they should.”
That’s not the uniform viewpoint of everyone in the party. Rep. Bill Foster (D-Ill.) led a group of 38 Democrats in an October 2016 letter urging GOP leaders to abandon the power during the next Congress. He told POLITICO he still thinks chairmen should not have it.
“I would continue to oppose unilateral subpoena power,” Foster said in a statement. “During my time in Congress, I have seen the majority party use this power to compel individuals to testify who differ from the committee chairs on policy matters. Committees should be expected to hold a vote on a subpoena to determine if the committee issues a subpoena.”
Zachary Warmbrodt contributed to this report