A change to House rules is putting sharper teeth into Democratic investigations of President Trump and his administration.
The change allows staff of House committees to conduct depositions without any lawmakers present, freeing up the panels to move through witnesses in their investigations quickly without the constraints of the previous Congress.
The change will offer Democrats on powerful House committees including Intelligence, Oversight and Reform, and Judiciary substantial momentum as they open wide-ranging probes into Trump, producing new headaches for the White House as the president readies his reelection bid.
“It’s more teeth, faster legs, longer breath, greater strength and just bigger,” said Steven Cash, a former staffer and counsel to the Senate Intelligence Committee.
“The other thing it signals is this isn’t the political theater of the Benghazi hearings. They’re not really interested in what comes out on television. They want sworn testimony. That indicates to me they’re looking for facts and not show,” added Cash, who is now a lawyer at Day Pitney specializing in criminal and national security law.
A fight has been percolating between House Democrats and the president since the November midterm elections, when Democrats captured the majority in the lower chamber and took control of all of the oversight and investigative powers that come with it.
Now, Democrats are preparing expansive investigations into the Trump administration on everything from Russia’s election interference to the White House security clearance process to Trump’s own financial dealings.
Some elements of these investigations are likely to happen behind closed doors, in the form of private interviews with administration officials or others that are transcribed and under oath — often referred to as a deposition.
In the previous Republican-led Congress, House committees were permitted to conduct depositions, but the chamber’s rules required that at least one member be present during the proceeding.
The new House rules unveiled by Democrats in January removed that requirement, allowing committee staff to conduct depositions without a member present.
The change represented a return to the rules that were in place the last time Rep. Nancy Pelosi (D-Calif.) was Speaker, at which point the Oversight and Government Reform Committee was allowed to conduct depositions without members present. It also expanded that power to other committees, with the exception of the Rules Committee.
“There’s an enormous backlog of oversight that needs to be done since the previous Congress — as you know — did very little oversight,” a Democratic aide told The Hill when asked about the reason for the change. The aide underscored that members are never precluded from being present for depositions.
The change will allow committees to quicken the pace of their investigations if they take advantage of it, given that they will not be constrained by lawmakers’ schedules.
“It can increase the speed, the efficiency and the punch of investigations,” said Jack Sharman, former special counsel to Congress for the Whitewater investigation. “If you remove the member-present requirement, then that reduces a lot of the logistical drag on the investigation.”
In the Senate, the rules governing depositions are decided by each committee.
The Senate Intelligence Committee rules, for instance, state that a member of the committee must be present for any witness testimony that is given under oath.
House Democrats have wasted no time in announcing wide-ranging probes.
Oversight and Reform Committee Chairman Elijah Cummings (D-Md.) in late January launched an investigation into the White House security clearance process, which has been subject to controversies involving Trump’s son-in-law and senior adviser Jared Kushner, former White House staff secretary Rob Porter and others. As part of the investigation, Cummings requested sit-down, transcribed interviews with all employees in the White House personnel security office.
The Oversight committee has already signaled it plans to embrace the rule change, noting last month that it “relieves the burden of scheduling to ensure that a member will be present for the entire length of every deposition.”
Meanwhile, House Intelligence Committee Chairman Adam Schiff (D-Calif.) last week revived his committee’s expanded Russia probe, which will expand to examine whether any foreign actor has financial or other leverage over Trump, his family or his business. The committee is expected to grill a major witness — former Trump attorney Michael Cohen — behind closed doors later this month.
Depositions are conducted under oath and allow committees to question witnesses on decisions, events, documents and other matters. They generate a record of the individuals’ testimony that lawmakers can use in future proceedings, in reports, or can compare to other witness statements. Depositions are generally conducted by a member or counsel, and the witness is allowed to have his or her attorney present.
The investigations threaten to dog the White House well into the 2020 campaign.
Trump, who is also contending with special counsel Robert Mueller’s ongoing probe, used his State of the Union address to issue a warning to Democrats not to engage in “ridiculous partisan investigations” that would compromise the “economic miracle” happening in the country.
“If there is going to be peace and legislation, there cannot be war and investigation. It just doesn’t work that way,” Trump said.
Trump has since taken aim at Schiff as a “partisan hack” and accused Democrats of engaging in “presidential harassment.”
Democrats, though, have shown no signs of being deterred.
In a signal that House committees are gearing up for substantial oversight work, a number of them are also hiring new staff with legal or national security expertise. Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) has announced white-collar defense attorney Barry Berke and Norm Eisen, a former White House lawyer under former President Obama, as new part-time counsels for the committee as it conducts oversight of Mueller’s investigation and the Justice Department. The committee would also be the one to take up impeachment proceedings, if Democrats seek them.
“Their full-time job is investigating. They’re being hired for that,” said Cash. “This is the Congress gearing up to take on their constitutional oversight role in a very serious way.”
For its part, the White House has also filled out its legal and communications teams to prepare for the coming investigations, including announcing three new deputy hires in White House counsel Pat Cipollone’s office.
The change to rules governing depositions is likely to create more problems for the administration.
“To the extent it both emboldens and enables more pre-committee depositions sooner, that means that more witnesses have to be prepared, if they have their own lawyers, their own lawyers have to be brought into the loop, and somebody also has to, at the White House, at the agency, has to take ownership of that process,” said Sharman, a defense attorney at Lightfoot, Franklin & White. “If you have a handful of committees all going at once, then that puts a much greater strain on an attempt to have a coordinated defense.”
“This isn’t a magic bullet for Congress. They still have to do their work and fighting the White House — any White House — is a tall order,” Sharman continued. “But it certainly adds to congressional investigators’ armory.”
