During a week of Democratic triumph and exultation, the only point of internal dissension was the battle among party members to out-hyperbolize one another on their newfound power to launch congressional probes. Representative Analilia Mejia vowed, “We’re going to toss out subpoenas like Mardi Gras beads.” Senator Ed Markey boasted, “They are going to need to plant new forests for all of the subpoenas we’ll be printing.” Representative Robert Garcia, who will chair the House Oversight Committee, issued a two-word official statement: “Lawyer up.”
It’s good advice. Donald Trump and his supporting cast will delay and resist, of course, especially given the installment of the chromosomally bellicose Stephen Miller as White House chief of staff. And there are practical limits to what any congressional committee can accomplish. But the political landscape has shifted, and now Democrats, if they act strategically and quickly, stand poised to challenge and expose the worst abuses of the Trump administration. Elections have consequences.
These past two years, the Republican-led Congress has run wild with congressional oversight, hearings, and subpoenas. Investigators have compelled testimony from a MAGA wish list of purported enemies of the state: Jack Smith and members of his prosecutorial team, senior aides to Joe and Jill Biden, Dr. Anthony Fauci, Bill and Hillary Clinton. Little of substance came from these circus acts, which mostly provided drab anticlimaxes to long forgotten or laughably trivial causes.
But now the voters have spoken and the tables have turned. Democrats will take the gavel, and they’re ready to rip. Garcia immediately laid out his investigative priorities, starting with the “Trump crime family”: payments by a Russian oligarch for Donald Trump Jr.’s wedding, Jared Kushner’s private equity company and its receipt of $2 billion in Saudi investments, and Eric Trump’s position on the board of a company that won a massive Pentagon Defense contract. With sycophantic Attorney General Todd Blanche willfully averting his gaze, no government entity has even begun to explore this serial self-dealing. That’ll change soon. (Blanche has, however, shrieked about rhetoric from Democrats on impending investigations, vaguely suggesting that combative political talk might cross the line to criminality; either he knows he’s full of it, or he’s lost his mind.)
Garcia also vowed to probe the Department of Homeland Security’s immigration-enforcement tactics — singling out Miller for his role as “the architect of unconstitutional ICE raids” — and hold public hearings on the government’s Jeffrey Epstein investigation. Senator-elect Abdul El-Sayed has pledged to investigate Secretary Robert F. Kennedy Jr.’s management of the Department of Health and Human Services. Representative Jamie Raskin, who likely will chair the House Judiciary Committee, will examine the political weaponization of the Justice Department and the FBI. Representative Jared Hoffman has promised to scrutinize the White House ballroom and the president’s other prized construction projects. And Democrats reportedly are gearing up to interrogate Elon Musk and tech executives from Apple and Meta.
The Trump administration surely will resist, but there’s only so much their lawyers can do. Executive privilege — a legal protection for certain sensitive presidential communications — will be oft invoked but rarely successful.
Presidents since George Washington have claimed some variation of the prerogative. The courts have formally recognized the doctrine for the past half-century — ever since the Supreme Court in July 1974 agreed with Richard Nixon that executive privilege exists but found that it didn’t apply to his efforts to withhold White House recordings from Watergate prosecutors. (Nixon resigned two weeks later.)
But Trump has habitually overextended this privilege, leading to a series of precedent-shifting legal losses. The courts have in recent years rejected his invocations of it to avoid a criminal subpoena; to withhold documents from a congressional committee; and to block testimony by his advisers (including the vice-president) to Congress. Now, the president will reap his own litigious harvest, as the law has evolved to narrow the scope of executive privilege primarily through rulings in cases that Trump himself has chosen to pursue. And while the privilege can apply to the president and his advisers, it provides no relief to anyone outside government — Trump’s children or corporate CEOs or Musk, for example.
Regardless of its legal merits, count on the Trump administration to invoke executive privilege as a delay tactic. Complex constitutional litigation can take years, and that alone could be enough to run out the clock on the incoming 120th Congress.
Still, properly focused, the courts are capable of expediency. A dispute over Trump’s presidential records relating to January 6, for example, took just three months to be resolved, from the filing of a lawsuit in the district court in October 2021 to the final decision by the Supreme Court in January 2022. If the new Democratic Congress moves quickly and doesn’t let itself get bogged down in futile negotiations, and if the courts do their job with reasonable efficiency, then plenty of time should remain to resolve legal disputes and get on with the fact-finding.
Of course, subpoena recipients still might ultimately defy a court order, refuse to testify, and risk the consequences. If the House or Senate holds a witness in contempt, the matter gets referred to the Justice Department for potential prosecution. And Blanche surely will do nothing to prosecute anyone who ignores subpoenas from a Democratic Congress. But the statute of limitations for contempt of Congress is five years. So anyone who defies a congressional subpoena in 2027 or 2028 — banking on Trump’s DOJ to turn a blind eye — ought to remember that the next administration can still bring charges into the 2030s.
Even with last week’s seismic political reconfiguration, there are limits to what Democrats can accomplish. They won’t be able to legislate with Trump still holding the veto pen (though they’re now in position to negotiate, and they can send bills to his desk to force him to take politically fraught positions in opposition). Impeachment is possible in the House, but conviction and removal won’t happen in the Senate (which requires a two-thirds vote), and Democratic Party leaders have cautioned against the whole exercise.
But congressional oversight, and the accompanying subpoena power, will make a genuine, immediate impact. Trump and his political allies have expended hardly a thought on their excesses over the past two years, comfortable knowing there would be minimal accountability and no consequences. But now the era of scot-free malfeasance is over.
