Congressional Republicans will likely find themselves in a sticky situation next year when it comes to Justice Department investigations of former President Trump should they win control of the House or the Senate in the face of pressure by the ex-president to thwart the work of federal investigators.
Some Republicans have floated defunding parts of the FBI in response to what they call a politically motivated search and seizure at Trump’s Mar-a-Lago property. An ascension to power also gives the GOP a chance to put a magnifying glass to the Biden administration through congressional hearings and investigations that could also throw some speed bumps into Department of Justice (DOJ) probes.
At a recent rally in Ohio with GOP Senate candidate J.D. Vance, the former president complained that he has been “harassed, investigated, defamed, slandered and persecuted like no other president,” and that there has been “political repression unlike anything our nation has ever seen.”
“J.D., you gotta get it stopped,” Trump said.
But taking an ax to funding for Trump probes is unlikely. And congressional investigations may do more to sway the court of public opinion than stop DOJ probes into the former president.
“Some members of Congress could make a bunch of noise, but that’s about it,” said Chuck Rosenberg, a former U.S. attorney and senior FBI official.
Trump is currently at the center of several investigations, two of which are under the Justice Department’s purview.
Federal investigators are digging into the Jan. 6, 2021, attack on the Capitol and Trump’s efforts to overturn the results of the 2020 presidential election. A number of ex-Trump White House aides have been called before a grand jury — including former counsel Pat Cipollone and Marc Short, who served as chief of staff to former Vice President Mike Pence — and the department has reportedly seized cellphones belonging to Trump advisers.
The Justice Department is also investigating Trump’s handling of presidential records and classified documents after he departed the White House in January 2021. The FBI executed a search warrant on the former president’s Mar-a-Lago residence in August and found scores of classified and top-secret documents that had been sought by the federal government after Trump left office.
Power of the purse
The Mar-a-Lago search spurred calls from some Republican members and GOP commentators to “defund the FBI.” But the logistics of actually defunding DOJ probes into Trump are politically fraught.
It is unlikely that appropriations negotiators would make cuts to the DOJ or FBI that could make it past a Senate filibuster, let alone be signed into law by President Biden. Republicans could theoretically leverage the threat of a government shutdown or need to raise the debt ceiling when negotiating for the cuts, but there does not appear to be a widespread political will among Republicans to play hardball to that extent over perceived politicization at the DOJ.
The conservative House Freedom Caucus has called for bringing back the Holman Rule, which would give more power to individual members by allowing them to propose amendments to appropriations bills that cut the salaries of specific federal workers down to $1, effectively defunding them. The arcane rule has been floated as a potential way to impact the investigations should they target investigators.
Rep. Andy Biggs (R-Ariz.), the former chair of the House Freedom Caucus, suggested at a CPAC Texas event in August, days before the Mar-a-Lago search, that Republicans could use the Holman Rule to “start defunding some of these bad agencies, the FBI, the DOJ.” He did not specifically mention the agencies’ probes into Trump.
House Republicans restored the Holman Rule — which dates back to 1876 and is named after former Rep. William Holman (D-Ind.) — in January 2017 after securing control of the lower chamber, but Democrats nixed the procedural rule two years later when they took back the majority.
“We should be able to take and restrict dollars flowing to a particular bureaucrat who we think is not doing the will of the people or following the law,” Rep. Chip Roy (R-Texas), a member of the Freedom Caucus, told The Hill.
“Take, for example, [Homeland Security Secretary Alejandro] Mayorkas; take, for example [Anthony] Fauci; take, for example, other bureaucrats, the administration, but also [Attorney General Merrick] Garland and the FBI and what they’re doing,” he said.
Rep. Scott Perry (R-Pa.), the current chairman of the Freedom Caucus, said Garland and investigations into Trump will be “included” in the conference’s use of the Holman Rule, but emphasized that the group plans to cast a wide net.
“We’re looking to fix the abuse of spending and power at all the federal levels,” Perry said. “It’s everything.”
Pressed on if there will be a particular focus on probes into the former president, he said “it’s not specific to Trump investigations, it’s specific to government overreach and overspending.”
While bringing back the Holman Rule is a priority for the Freedom Caucus, not all Republicans are lining up behind the initiative.
“It may come back, I’m not a big fan of it,” Rep. Tom Cole (R-Okla.), ranking member on the House Rules Committee, adding that it “tends to personalize politics in ways that are not helpful.”
Shine of the microscope
Republicans have already pledged to use their congressional investigatory authority in response to the DOJ’s probe of Trump.
After the search at Mar-a-Lago, House Minority Leader Kevin McCarthy (R-Calif.) promised “immediate oversight” of the DOJ in a GOP majority, arguing that it had “reached an intolerable state of weaponized politicization.” He directed Garland to “preserve your documents and clear your calendar.”
The Justice Department has long responded to congressional inquiries about ongoing investigations by claiming that providing such information could interfere with national security, compromise an investigation or amount to improper political interference.
A GOP-led congressional committee would have broad ability to seek records and testimony as long as there is a legitimate legislative purpose. Congress has typically considered the needs of an agency to keep matters relating to its deliberative process confidential.
Criticism relating to those concerns rose in 2018 after former Deputy Attorney General Rod Rosenstein gave former Rep. Devin Nunes (R-Calif.), then the chair of the House Intelligence Committee, and former Rep. Trey Gowdy (R-S.C.), then the chair of the House Oversight Committee, access to a memo that launched the FBI’s investigation into Russia and the Trump campaign.
Harry Litman, a law instructor at the University of California at San Diego and former U.S. attorney and deputy assistant attorney general, wrote in an op-ed at the time that the disclosure “could compromise the investigation, unfairly expose uncharged individuals and provide a road map for defendants to sculpt their stories.”
But with different leadership in the DOJ, Litman does not have the same worries about a future Congressional requests.
“So long as Merrick Garland remains atop the DOJ, the Department will vigorously resist providing any information about pending investigations (as Rosenstein did in 2018),” Litman said. “That includes going to court, where the law is uncontroversially in their favor and they should prevail.”
The Iran-Contra affair provides another notable historical instance of a congressional investigation affecting a federal criminal probe even when the dual investigations had the same target. Former National Security Council aide Oliver North’s 1989 conviction on felony charges were later overturned in part over concerns that testimony he gave to Congress on the condition it would not be used against him was utilized in his trial.
Multiple experts agreed that there is ultimately little Congress can do through oversight activities to thwart the DOJ.
David Janovsky, analyst at the Project on Government Oversight, said that while a GOP congressional investigation may add “speed bumps” to DOJ probes into Trump, it cannot alone stop it.
Matthew Miller, a former DOJ spokesman and an MSNBC analyst, said that the DOJ would simply refuse to turn over certain information.
“They’re pretty used to litigating these fights with Congress by this point in the D.C. courts,” he said.
Concerns about congressional investigations affecting DOJ probes have already affected GOP investigations into matters concerning Trump. The National Archives and Records Administration, for instance, has declined to share records relating to the Mar-a-Lago search with Republicans on the House Oversight Committee in order “to protect the integrity of the DOJ’s ongoing work.”