As Democrats Fear Political Hammer, House Broadens Subpoena Authority

Chairs will get more investigatory power to call witnesses in the new term.

House Rules Committee Chairman Pete Sessions, R-Texas.
AP Photo/Molly Riley
Jason Plautz
Add to Briefcase
Jason Plautz
Jan. 10, 2017, 8 p.m.

Re­pub­lic­an com­mit­tee chairs will have broad­er sub­poena powers in the new term, des­pite Demo­crat­ic con­cerns that ex­pan­ded au­thor­ity has led to ab­use of tar­gets as var­ied as fed­er­al sci­ent­ists and Planned Par­ent­hood.

House rules fi­nal­ized last week will ex­pand the abil­ity of com­mit­tees to de­pose wit­nesses without a mem­ber present. Com­ing a term after sev­er­al com­mit­tee chairs were giv­en more sub­poena au­thor­ity, Demo­crats fear that Re­pub­lic­an mem­bers and staff have been giv­en too much power to use in­vest­ig­at­ive au­thor­it­ies that used to be more spar­ingly ap­plied.

The new rules al­low a wit­ness to be de­posed without a mem­ber present after a com­mit­tee vote or if the wit­ness agrees to have only a staff de­pos­ition, which had been gran­ted to a few com­mit­tees in the pre­vi­ous term. Car­oline Boothe, a spokes­wo­man for House Rules Com­mit­tee chair­man Pete Ses­sions, said the change was meant to al­low com­mit­tees to con­tin­ue over­sight work over long re­cesses when mem­bers would not be in Wash­ing­ton and to pre­vent wit­nesses from ex­ploit­ing a mem­ber’s sched­ule to get out of an­swer­ing ques­tions.

It’s a power that was used in in­vest­ig­a­tions in­to drink­ing-wa­ter con­tam­in­a­tion in Flint, Michigan; al­leged con­tam­in­a­tion at a Na­tion­al In­sti­tutes of Health fa­cil­ity for man­u­fac­tur­ing drugs; and pay­ments of cost-shar­ing sub­sidies without con­gres­sion­al ap­pro­pri­ation.

Demo­crats fear that staff don’t have the same ac­count­ab­il­ity as mem­bers and that any ex­pan­ded sub­poena power could be wiel­ded as a polit­ic­al tool against out­side groups. Former Rep. Henry Wax­man, who spent six terms as the top Demo­crat on the Over­sight Com­mit­tee, said he could re­call staff mem­bers ask­ing wit­nesses about drug use and ro­mantic re­la­tion­ships, with no check from com­mit­tee mem­bers.

“We need the rule of law, and without that it’s up to the whim of a chair­man to is­sue a sub­poena and up to the whim of a staffer to ask ques­tions that are im­prop­er,” Wax­man said. “This is an in­vit­a­tion to ab­use that right.”

It also marks an­oth­er ex­pan­sion of sub­poena au­thor­ity at a time when Demo­crats have been try­ing to scale it back. In the 114th Con­gress, sev­er­al com­mit­tee chairs were giv­en the power to is­sue sub­poen­as without con­sult­ing the rank­ing mem­ber (in the term be­fore, that au­thor­ity had been handed to the Over­sight Com­mit­tee).

That al­lowed sev­er­al com­mit­tees to go on a sub­poena blitz; the Fin­an­cial Ser­vices Com­mit­tee is­sued 13, the En­ergy and Com­merce Com­mit­tee is­sued five, and the House Sci­ence, Space, and Tech­no­logy Com­mit­tee sent out 22.

In a let­ter to Ses­sions sent in the fall, 37 Demo­crats urged the Rules Com­mit­tee to “cor­rect this over­reach,” say­ing that “neither Demo­crat­ic nor Re­pub­lic­an chairs should have this au­thor­ity.

“The 114th Con­gress has shown that uni­lat­er­al sub­poena power can too eas­ily be used as a weapon against those ex­press­ing views with which a com­mit­tee chair does not agree, and we write to urge that this rule be changed to pre­vent fur­ther ab­use and par­tis­an­ship,” they wrote.

Re­pub­lic­ans have de­fen­ded their sub­poena au­thor­ity as a way to stream­line in­vest­ig­a­tions and com­bat what they say were un­co­oper­at­ive wit­nesses from the Obama ad­min­is­tra­tion (Boothe, for ex­ample, said wit­nesses in the cost-shar­ing in­vest­ig­a­tion would only com­ply after sub­poen­as were is­sued).

The ex­pan­sion comes as the new ad­min­is­tra­tion is ex­pec­ted to be friend­li­er to Re­pub­lic­an in­terests. While Over­sight Com­mit­tee chair­man Jason Chaf­fetz has said he will not “be a cheer­lead­er for the pres­id­ent” and could in­vest­ig­ate the new White House, he also told re­port­ers that he would con­tin­ue to probe Hil­lary Clin­ton’s use of a private email serv­er at the State De­part­ment, ac­cord­ing to CNN.

The Sci­ence Com­mit­tee be­came a fo­cus of the sub­poena de­bate, with chair­man Lamar Smith is­su­ing nearly two dozen. Among his tar­gets were fed­er­al sci­ent­ists, who he ac­cused of doc­tor­ing cli­mate-change data, and en­vir­on­ment­al groups, who he said were col­lud­ing with state at­tor­neys gen­er­al (also sub­poenaed) in a probe of wheth­er Ex­xon covered up cli­mate re­search.

Smith even held a hear­ing just to ex­am­ine how broad the com­mit­tee’s power ac­tu­ally was, with Smith de­fend­ing his “con­sti­tu­tion­al ob­lig­a­tion to con­duct over­sight any­time the United States sci­en­tif­ic en­ter­prise is po­ten­tially im­pacted.”

Speak­ing at a con­ser­vat­ive en­ergy con­fer­ence at the headquar­ters of the Her­it­age Found­a­tion last month, Smith said that with Trump com­ing in­to of­fice, “there won’t be near as many sub­poen­as in the com­ing Con­gress, I don’t think.”

A spokes­man for the com­mit­tee cla­ri­fied that Smith “be­lieves that the new ad­min­is­tra­tion’s agen­cies will be more forth­com­ing with the com­mit­tee’s re­quests for in­form­a­tion” than the Obama ad­min­is­tra­tion’s. Sub­poen­as is­sued last term must be re­newed, but the com­mit­tee has not an­nounced any plans to do so.

Rank­ing mem­ber Ed­die Ber­nice John­son said she was “very con­cerned” about the latest changes.

“The ma­jor­ity wasted little time in ab­us­ing these new powers in ways that would have been un­ima­gin­able just a few short years ago,” she said. “Giv­en these ab­uses, it would have been more ap­pro­pri­ate to res­cind the de­pos­ition au­thor­ity rather than ex­pand it.”

Boothe said that if Ses­sions “feels ab­uses are oc­cur­ring, he will not hes­it­ate to pull back these au­thor­it­ies.”

Wax­man, now a lob­by­ist with Wax­man Strategies, said he thought the new rules would make it too easy to har­ass private cit­izens, who would have to present doc­u­ments, get leg­al rep­res­ent­a­tion, and an­swer ques­tions some­times out of the pub­lic eye.

“There’s too much power that’s un­checked,” Wax­man said, “and I don’t feel great about mem­bers hav­ing it, let alone staff.”

What We're Following See More »
Trump: Time to Let Obamacare “Explode”
10 hours ago
Trump Maintains Connection to Businesses After All
11 hours ago

Despite reassurances from President Trump and his sons that they are not talking about business at the Trump Organization, Eric Trump admits "that he will continue to update his father on the business while he is in the presidency." Pressed for specifics, he said he'd probably give his father quarterly profitability reports. “I talk to him a lot. We’re pretty inseparable," he said.

At Trump’s Behest, Ryan Pulls Healthcare Bill
11 hours ago

Faced with a choice of Trump's way or the highway, the GOP chose the highway. In the worst possible development for the GOP, Speaker Paul Ryan pulled the healthcare bill from the floor for the second day in a row—even after President Trump demanded an up-or-down vote last night. According to multiple reports, Trump himself called Ryan at about 3 p.m. to tell him to cancel the vote. Trump has since blamed Democrats for the defeat. It's unclear when the legislation will be revisited.

Comey at White House Now
12 hours ago
Nunes, Schiff Ask for Closed-Door Testimony on Russia
15 hours ago

"House Intelligence Committee Chairman Devin Nunes (R-CA) said he and ranking Democrat Adam Schiff of California have asked FBI Director James Comey and NSA Director Mike Rogers to testify behind closed doors about the committee's ongoing investigation into alleged ties between the Trump administration and Russia." He also said former Trump campaign manager Paul Manafort will also testify.


Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.