With control of Congress split between Senate Democrats and House Republicans, near-total legislative gridlock is almost certain to halt movement on the keystone issues of both parties. Indeed, battles over bills will likely be just the background to a tide of aggressive investigations led by House Republicans into the Justice Department and key figures in Joe Biden's administration. Exactly what the political fallout of these investigations will be — and who will benefit most — are key questions as high-profile hearings will command media attention ahead of the 2024 election.
The Biden administration has been gearing up for the GOP's promised investigations at least since May, when presumed GOP targets like the Department of Homeland Security began a process that might be described as legal waterproofing. After recruiting a slate of veteran white-collar lawyers and former political advisers, Biden officials built the administration's response strategy last summer in a series of meetings.
Democrats will meet this investigative onslaught with essentially the same playbook Republicans used to defend Donald Trump and his coterie, ironically enough — along with a battery of legal defenses meant to guard against overly broad demands for Justice Department intelligence. Democrats also know first-hand how hard it is to turn investigative findings into a pair of handcuffs. That experience, some argue, may offer Democrats the advantage in landing a balance of public favor.
Recent pundit chatter suggests Democrats are hoping that GOP investigative overreach will be a publicity boon. They're betting that voters grow impatient while watching a fractured GOP with a razor-thin House majority flounder to fulfill any of its legislative stump promises. Some White House aides and allies have suggested that the far-right flavor of House investigative committees is a "political gift."
But it seems at least as likely that House Republicans can score more political points wielding the gavel than Democrats can in defending themselves from it. The Biden administration is already on the back foot, seeking to fend off what it views as unnecessary requests for overly sensitive information, with a flood of congressional requests and subpoenas certain to follow.
GOP committee chairs hope to yank the leashes of executive branch officials before the cameras, delighting the most extreme members of their base with a spectacle of Democratic humiliation. Government science and health officials will likely be compelled to appear on Capitol Hill to address a range of unsubstantiated conspiracy theories on COVID and other hot topics.
Congressional investigations — replete with camera-savvy grandstanding antics — are the hallmark of divided government, as well as a time-tested ax for chipping away at presidential approval ratings. Republicans are betting their stagecraft will outweigh the fact that their investigations will almost certainly have no legal effect.
Republicans' investigative wish list is sprawling, but may grow narrower as their committees stretch themselves thin. Here's a full breakdown of the House's new investigative powers and committees, along with a list of current and proposed investigations where the GOP hopes to flex its authority for the cameras.
New rules: What's different in the GOP House
Passage of the new House Rules for the 118th Congress, in a 220-213 vote, marked Speaker Kevin McCarthy's first legislative victory. The rules are expected to encourage protracted and performative committee hearings, while increasing the chances of partisan budget standoffs in both chambers. They increase House committees' investigative authority at the expense of minority-party members and the integrity of ongoing criminal cases, and expand bill-markup privileges, allowing members to target individual political opponents and federal programs.
Republicans are betting that TV stagecraft will carry more political weight than the fact that their so-called investigations are pointless and ineffectual.
New rules laid out in the 55-page document grant the chamber greater control over spending and tax bills, while giving the House GOP a new potential cudgel against the agencies and programs they investigate. The most high-profile rule change dramatically weakens the speakership by allowing any single member to call a motion to "vacate the chair" (previously, five members were required).
The long-standing "Gephardt Rule" was struck down, which could force a direct vote on lifting the debt ceiling — setting the stage for a potential 2011-esque standoff with Senate Democrats. Brinkmanship chances may increase the most thanks to new rules aimed at slowing down budget approval for bills that are normally hand-waved through — like those used to keep Social Security functioning. Bills reauthorizing such mandatory spending increases are blocked in the new rules, as is any spending bill that would lay out more than $2.5 billion within four years. However, spending cuts can now be bundled together and voted on as a package
Short-term spending items in a budget must be voted on individually before their funding is increased. Income tax increases now require a three-fifths vote to pass the House, and any bill that has a big impact on the economy has to include an inflation-impact estimate. One bipartisan "good government" rule requires bills to be posted at least 72 hours before the chamber takes a vote on them.
While the House expanded committee investigative privilege, any committees seeking to enforce subpoenas or compel criminal investigations will still face Democratic pushback in the Senate and White House.
The most prominent threat to the executive branch and Biden administration comes with the revival of the Holman Rule, which allows Congress to vote on cutting specific employees' salaries or positions within a federal agency. Another rule gives more authority to the already powerful House Oversight and Accountability Committee. All committees tasked with overseeing a federal program's budget will now be required to provide the Oversight Committee with a formidable stack of paperwork on its programs — and the threshold for recommending a program's termination has been lowered.
House committees — especially select committees — already have the authority to exercise a range of investigative powers, but newly reintroduced rules tighten the majority party's grip on the committees and restrict the minority party involvement. (It's entirely possible Republicans will live to regret these rules two years hence.) Reinforced by the threat of a potentially disastrous government shutdown or a possible default on government debt, this is what House committees' investigative powers now look like.
How will the House rules impact investigations?
Getting it on the record — Unlike congressional subpoena powers, House rules on committee interview and information requests are largely unchanged in 2023. Before it issues a subpoena, a House committee can try two less aggressive routes to gather evidence. Any member can issue a request for information to an individual, whose response is voluntary. Then a House committee can request an interview, with response again voluntary, although perceived political interest often compels witnesses to comply. Interviews are less formal than a full deposition, and are usually held in private — and committees can still allow staff to lead witness interviews either remotely or in person.
No more seven-member rule — Previously, any seven members of the Oversight Committee, regardless of party, could issue a subpoena to compel witness depositions or other evidence. Now, the committee's chair must be included among those seven members. In the current Congress, this obviously restrains Democrats' power.
Staff deposition powers, limited attendance — Republicans will keep a previous Democratic rule that allowed congressional staff to take depositions without a committee member present. The rule also now limits persons who can attend depositions to members, committee staffers, an official reporter, the witness and no more than two attorneys.
Higher-profile hearings — More in-person testimony is expected during congressional hearings, as a new rule restricts the circumstances under which committee chairs can allow witnesses to testify remotely. This rule seems to apply only to non-governmental witnesses. The GOP has also kept a Democratic rule that allows the committee to overrule objections made by a witness' lawyer and compel a witness to answer or be charged with contempt. Committee members can still appeal this move.
Executive branch referral — Congress can still refer its investigatory findings to the executive branch for criminal prosecution through the Justice Department. But the executive branch still has the power to decide whether to prosecute or not.
What happens if you ignore a congressional subpoena?
If a person fails to comply with a congressional subpoena, they could face contempt charges, although the consequences are rarely serious. Those come in three varieties.
Inherent contempt — If a person ignores a subpoena from a House committee, the House can pass a resolution holding that person in contempt and then conduct a full trial, along with a debate. If the person is found guilty, Congress can impose its own punishment -- including having the chamber's sergeant-at-arms find the person and arrest them.
Civil contempt — Formally known as civil enforcement, this option allows the House to enforce a subpoena by either having the House general counsel file a suit in federal court, or asking a federal judge to order the witness to comply.
Criminal contempt — Failure to comply with a subpoena is a misdemeanor that can result in imprisonment or fines, although such outcomes are rare. The House can approve a contempt citation and refer it to the attorney general for possible prosecution. With the DOJ currently overloaded with hundreds of Jan. 6 cases and the discovery of classified documents at Mar-a-Lago, the odds don't favor the additional use of resources for congressional investigations. Notably, criminal contempt charges — like those on which former White House adviser Steve Bannon was convicted — take a notoriously long time to yield results.
What are the House's investigative committees?
There are eight key committees to watch so far. Among those, the three new investigative bodies worth keeping an eye on are the Select Subcommittee on the Weaponization of the Federal Government, the Select Subcommittee on the Coronavirus Pandemic, and the Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party. But shake-ups in five other standing committees foreshadow more House brawls ahead.
Judiciary Committee — Chairman Jim Jordan, R-Ohio, has already pledged that his committee will investigate the Justice Department as he dives into a slate of Biden administration affairs. His requests to the DOJ have already begun with the first indications of the department's response coming late last week.
- Select Subcommittee on the Weaponization of the Federal Government — Jordan will also chair this new and highly-publicized panel, which has been authorized to "investigate the investigators," especially the ongoing criminal probes of Donald Trump and his inner circle. Critically, the subcommittee is allowed to receive potentially sensitive information from the House Intelligence Committee — whose members have special security clearances —and its members do not have to serve on the actual Judiciary committee. Federal agencies are expected to push back on information requests made by the panel. Committee member Rep. Byron Donalds, R-Fla., has also said he wants the committee to investigate the White House's interactions with Twitter.
Oversight and Accountability Committee — Chairman James Comer, R-Ky., will be able to issue subpoenas unilaterally in his role over this powerful committee. The first hint of its new aggressive posture came with a name change (it was previously the Oversight and Reform Committee). Comer has repeatedly promised to go after the Biden administration and its federal agencies with what he calls an "all-star lineup." And indeed, the committee's GOP members include such MAGA bold-face names as Arizona Rep. Andy Biggs, Colorado Rep. Lauren Boebert, Georgia Rep. Marjorie Taylor Greene and Pennsylvania Rep. Scott Perry.
- Select Subcommittee on the Coronavirus Pandemic — Chaired by Brad Wenstrup of Ohio, the new panel is likely to dive into pandemic relief fund fraud but may also reinvestigate the origins of COVID-19. (Why that's important to Congress at this late date is not clear.) Although this select committee is technically under the Oversight and Accountability Committee, the speaker chooses its membership, as with the Government Weaponization panel. Members will be able to ask questions for more than the usual five minutes, and staff will be able to question witnesses in hearings. Its final report is due by Jan. 2, 2025 (the last day of this Congress).
The new subcommittee on the Weaponization of the Federal Government appears to be calibrated to siphon sensitive information away from the Intelligence Committee, whose members have special security clearances.
Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party — Chaired by Wisconsin Rep. Mike Gallagher, the new panel with an unwieldy out-of-the-past name was created in the rules package and in its own separate resolution. Gallagher is noted for his bipartisan efforts to establish the committee in the previous Congress under then-Speaker Nancy Pelosi, who will herself sit on this new committee along with Democratic Rep. Jim McGovern of Massachusetts and House Minority Leader Hakeem Jeffries of New York. McGovern's position as chair of the Congressional-Executive Commission on China is expected to add sobriety to the committee's approach.
Foreign Affairs Committee — Chairing this already powerful committee, Rep. Michael McCaul of Texas will have the authority to oversee the Department of State and any investigations from other committees the involve foreign policy. That could include having influence over the Select Committee on China. Rep. Scott Perry, the Freedom Caucus chair, also sits on this committee.
Homeland Security Committee — Freedom Caucus member Mark Green, R-Tenn., is likely to step into a high-profile role as he takes on the chairmanship of this committee. Migration issues at the southern border are prompting a suite of early bills in the House. Far-right members want to depose Homeland Security head Alejandro Mayorkas, with resolutions demanding his impeachment already filed in the House. ]
Ethics Committee — Rep. Michael Guest, R-Miss., will chair the committee. While not new, recent rule changes order the Ethics Committee to begin taking complaints directly from the public. The move may offer lawmakers a potential end-run around the Office of Congressional Ethics (which vets and refers ethics complaints to the Ethics Committee). As the OCE faces calls to investigate Congress members over the Jan. 6 attack on the Capitol, its eight-member board has been largely gutted by a new rule imposing term-limit caps that would immediately force out three Democrats — and another new rule requiring four OCE board members to approve the new appointee.
What are the current House GOP investigations?
The GOP is expected to investigate a host of topics in short order: Biden's border policies, the U.S. withdrawal from Afghanistan, the origins of COVID-19, cryptocurrency scams and diversity recruiting efforts in the military. Currently, three investigations have commenced in earnest, with chairmen publicly discussing early plans on collection of evidence.
The Justice Department and FBI — Jordan has previously signaled that the Government Weaponization panel plans to go after the FBI and DOJ in what Democrats believe will be an effort to see what cards the agencies hold in their own criminal investigations into Trump. Jordan released a roadmap of the committee's agenda (spanning more than 1,000 pages) but said in recent days that the committee will first investigate what he believes was the FBI's attempt to target parents who criticized school board members.
Rep. Jim Comer says there are no plans to subpoena Joe Biden "right now," perhaps because the entire point of the Hunter Biden probe is to torment him.
Hunter Biden — Comer's Oversight and Accountability Committee will take on a whole range of topics around Hunter Biden, which Comer told CNN would start immediately. Comer said there are no plans "right now" to subpoena the president himself, but that the committee would bring in witnesses for interviews and request bank records from the president's long-troubled son. Hunter Biden is facing a federal investigation over tax violations but hasn't been charged with a crime. Comer's panel will also be investigate any links between the president and his son, and is clearly eager to pursue the rumors that Joe Biden somehow profited from or meddled in his son's overseas business deals.
Biden's classified documents — On Jan. 13, Justice Committee chair Jordan announced the panel would investigate Joe Biden's handling of classified documents, sending a letter to Attorney General Merrick Garland requesting files related to the DOJ's findings on the president. The committee also asked for documents related to Garland's appointment of special counsel Richard Hur. Under the authority of the Oversight and Accountability Committee, Comer sent his own request to the DOJ, asking for more details on what the documents contain.