A tipping point for Washington’s investigative culture?
putting it in perspective
Congress has been investigating since George Washington’s day. But there’s something about the Russia probes – anywhere from three to nine, depending on how you count them – that seems different.
—Many members of Congress were furious. It was 1792, and a military campaign led by General Arthur St. Clair against Native Americans in what is today Ohio had ended in complete disaster. So lawmakers launched the first congressional investigation of US executive branch actions. President George Washington responded with wary cooperation, aware he was setting precedents for presidents to come.
Fast forward 225 years. In the cacophony of modern US politics, it sometimes seems investigations have grown from that beginning into a behemoth that has pushed aside legislating as a political measure of getting things done. Think of the well-known roll-call: Watergate. Iran-Contra. Benghazi. And now Russia.
But the pace of investigations hasn’t increased, say experts. The media that cover them are louder. The political combat involved is more intense. They have (surprise!) become more partisan, though sometimes bipartisanship grows out of partisan beginnings. The process works when the parties come together in the end, as they did in the long political struggle that was Watergate.
All that said, it’s possible the nation has reached a turning point in regards to Washington investigations. There’s something about the Russia probes – anywhere from three to nine, depending on how you count them – that seems different. The partisanship has been amped up to new levels, on both sides. The accusations – foreign government interference in US elections – are extreme, or extremely important. The president, unlike George Washington, does not appear to believe that quiet cooperation helps his cause.
“I don’t think we’ve had anything quite like this . . . not in terms of quantity of investigations, absolutely not. But in terms of the tremendous amount of anxiety I see in the country from Republicans and Democrats alike that the government is not functioning properly,” says Raymond Smock, director of the Robert C. Byrd Center for Congressional History and Education and co-editor of the book “Congress Investigates.”
Why ‘investigation’ shouldn’t be a dirty word
For much of American history, a Washington investigation has meant not a special prosecutor or media stampede but a focus on a particular subject by members of Congress.
Often that involves some action or responsibility or other aspect of life at the other end of Pennsylvania Avenue, at the White House. But not always: over the centuries lawmakers have convened special inquiries into everything from the sinking of the Titanic to the use of steroids in baseball.
Congressional investigations of the executive branch aren’t approved, or even mentioned, in the Constitution. But courts have ruled that they’re implied by the fact that under America’s founding document lawmakers have “all legislative powers.” Congress needs accurate information of all sorts to be able to properly draw up bills. Ergo, cross-branch investigations are OK, according to the Supreme Court.
Congressional oversight, including investigations, “is how we open up our government and make it visible to the public, so it is an important element of our system,” says Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists in Washington.
Thus “investigation” should not be a dirty word in Washington, Mr. Aftergood adds. Neither should investigations be weapons of political (or personal) warfare.
“They are a tool to uncover fact,” he says. “And invoking facts is ideally in everyone’s interest.”
Darrell Issa (R) of California, former chair of the House of Representatives Government Oversight Committee, argues that Congress should invest more in investigation – citing a drop-off in probes since he was chair.
“It takes a long time to build strong oversight teams and it takes very little time for them to lose sort of their mojo,” he says. “If it were up to me, I would invest in the neighborhood of a 20 percent increase in Congress’s budget, all going toward oversight.”
War has frequently been a topic of congressional interest. The St. Clair probe, generally considered by historians the first real US investigation, is a case in point. Lawmakers were interested in why Gen. St. Clair’s campaign in northwest Ohio had been such a disaster. Of the 1,400 US regulars and militia who set out in pursuit of Native Americans in what was then the nation’s frontier, some 650 were killed and 250 wounded when adversaries caught them unprepared for battle.
After hearing witnesses and examining government documents, the special congressional committee convened for the probe largely blamed the debacle on poor equipment and fraud by suppliers. The full Congress took no action following this conclusion, however. St. Clair expressed frustration that the report did not fully exonerate his own actions.
Beginning in the Gilded Age of the late 19th century, the economy – and the way it could be manipulated for the benefit of the unscrupulous – became a common theme. Congressional probes looked at everything from rampant corruption in railroad construction to the Teapot Dome oil reserves scandal during the administration of President Warren G. Harding.
This trend perhaps culminated in the Pecora Investigation of 1932-34, in which former New York deputy district attorney Ferdinand Pecora unearthed the records of many financial firms and ably demonstrated that Wall Street practices had contributed to the onset of the Great Depression.
The Pecora investigation reinforced two powerful lessons for Congress. One was that probes could create individual national stars – Pecora became famous for his thorough, patient interrogations. Another was that they could lead to important legislation. Pecora contributed to the reorganization of American banking under the Glass-Steagall Act of 1933, and the creation of the Securities and Exchange Commission the following year.
Often politically motivated – but not always
Generally speaking, in the modern era most congressional investigations begin when a spark of political motive lands on the tinder of a real problem, says Dr. Smock of the Byrd Center.
That’s why they are more likely to occur when control of government is divided between Democrats and Republicans, with one party controlling the White House, and the other Congress. Think Iran-Contra, the lengthy probe into the Reagan administration’s funding of Nicaraguan rebels launched under a Democratic-led Congress in 1987, or the many GOP investigations into former Secretary of State Hillary Clinton and the attack on the US Embassy in Benghazi, Libya, during the Obama years.
But that’s not always the case. Sometimes parties investigate themselves. In early 1941, a then little-known Democratic senator from Missouri named Harry Truman proposed the creation of a select Senate committee to investigate how defense contracts were being awarded, and how well those contractors were performing. This was prudent oversight given the ongoing war in Europe and possible conflict with Japan, Senator Truman argued.
The Senate quickly approved the proposal, with Truman as the committee’s head. He was given broad powers to look at the financial activities of then-President Franklin Delano Roosevelt’s military buildup.
“It was a Democrat investigating a Democrat, and Roosevelt didn’t much like that at first,” says Smock.
Then Truman’s Special Committee to Investigate the National Defense Program ably pursued a broad agenda. It saved taxpayers billions and prodded the administration to centralize and improve purchasing for the massive war effort.
In the end, FDR liked the investigations so much he chose Truman as his running mate in 1944. Five months after the election Roosevelt passed away, and suddenly the obscure Missourian was the 33rd president of the United States.
Strength in bipartisanship
While many investigations may begin in partisanship, they’re usually more effective if they don’t end that way. At some point they need to transcend their origins and become bipartisan if they are to achieve their full objectives.
Take Watergate, for example. Democrats controlled both the House and Senate during the Nixon presidency. They drove congressional investigations and votes on Watergate throughout much of 1972 and 1973. Throughout much of this period congressional Republicans, even moderates, argued that the Watergate probes were too aggressive.
Even after Nixon fired special prosecutor Archibald Cox in the Saturday Night Massacre of October 1973, many in the GOP were leery of impeachment. A majority of Republicans on the House Judiciary Committee voted against impeachment articles in July 1974.
But the weight of the evidence, particularly the damning White House tapes, was weighing on key GOP Senators. On August 7, Sen. Barry Goldwater (R) of Arizona and other party leaders visited Nixon in the White House and told him his Republican support was crumbling. Accepting the inevitable, Nixon resigned the next day.
“For an investigation to be successful, it may start out as partisan, but at some point it has to cross the line to become bipartisan in nature,” says Smock.
How Congress' role has changed
While there’s always been some partisanship in the process, what is different today is that high-level investigations have been turned into partisan weapons.
The two big parties that govern America are ideologically more homogeneous and further apart than ever. The level of animosity is higher.
To a large extent, congressional investigations today are much less about informing lawmakers so they can write good legislation, and more about controlling or harming the executive branch.
Congress per se is no longer always the central player, as it would have been decades ago. Instead, Capitol Hill has become part of a larger investigative culture, which includes special prosecutors and an aggressive media.
“Congress ends up being a part of a much larger conversation, which is different from years past,” says Eric Schickler, a political science professor at the University of California at Berkeley and co-author of “Investigating the President: Congressional Check on Presidential Power.”
Just starting such a “conversation” can have an effect. According to Professor Schickler’s research, investigations can systematically lower a chief executive’s approval rating and weaken their political leverage.
“There are a lot of examples historically when Congress has used these investigative tools to hold the president accountable,” says Schickler.
Perhaps that is how the investigations into Russian meddling in the 2016 election will turn out. At this point in the process, we’re not really sure what their end point will be.
They are just much different than any past situation, according to experts. There isn’t really a good historical analogy, though some say it has some resonance with Iran-Contra, the winding, complicated, lengthy investigation of the Reagan administration’s use of arms sales to Iran to fund anti-communist Nicaraguan rebels.
But in this case, a Republican-led Congress is looking at a president of the same party. Congress itself is split, with the House inquiry roiled by fierce partisanship, and the Senate proceeding in a more cooperative manner, at least for now. Behind both, the FBI continues to work.
Meanwhile, the president is openly attempting to delegitimize the process, calling the whole thing a “witch hunt” while musing about firing Justice Department special counsel Robert Mueller.
“It’s a carnival atmosphere that the country has never experienced before,” says Smock.
It’s not yet clear if the congressional Russia proceedings will morph into a more bipartisan effort.
It’s important to remember that in terms of President Trump himself, the outcome of the investigation will be as much political as legal. The Constitution’s description of the grounds for impeachment is sketchy, referring only to “high crimes and misdemeanors.” Those are whatever members of the House deem them to be. (The House votes to impeach; the Senate then votes on whether or not to remove an impeached high official from office).
In general, the existence of congressional investigations doesn’t guarantee there’s a scandal waiting to be exposed. There may be or there may not be. Voters and lawmakers alike should be sober and realistic about that fact.
But history shows the process itself is valuable.
“There is going to be abuse in any administration, deliberate abuse. And incompetence, and people have to watch that,” says Louis Fisher, a scholar in residence at the Constitution Project and former separation of powers expert for the Library of Congress. “If there is not much oversight, we are going to pay a price.”
Staff writer Francine Kiefer contributed reporting.