Democrats debate fate of Trump probes if Biden wins

House Democrats are weighing how to move forward with a flurry of ongoing probes and future investigations if President Trump loses on Tuesday.

The big question hanging over Democrats, who are expected to keep the majority in the House, is whether to lean into post-election investigations that could detract from their legislative priorities under a Joe Biden presidency and risk further dividing the electorate.

The answer is likely to come into focus once the chairs of the various investigative committees receive direction from Speaker Nancy Pelosi (D-Calif.) and Biden, if he wins.

But some key Democrats and House committees are already planning — and pressing party leaders — to keep digging into open investigations.

“There are legitimate questions that have to be answered about what took place, whether there is ongoing criminal activity,” said Rep. Mike Quigley (D-Ill.), a member of the House Intelligence Committee. “That is fair game, no matter how you look at this.”

The Intelligence panel plans to pursue its investigation into the potential politicization of intelligence at the Department of Homeland Security, a probe Democrats say was obstructed by the Trump administration, according to a committee aide.

Rep. Carolyn Maloney (D-N.Y.), the chair of the House Oversight and Reform Committee, said that while the top priority will be on fighting the pandemic and helping the economy recover, her panel’s Trump-related investigations will move forward.

“As the Committee looks to continue working on behalf of all Americans in the 117th Congress, we will prioritize our investigation into skyrocketing drug prices, restoring the U.S. Postal Service, and ensuring that the census is accurate and complete,” Maloney said in a statement to The Hill.

In a sign that Democrats don’t plan to take their foot off the gas, Maloney on Friday notified Mark Morgan, the top official at U.S. Customs and Border Protection, that she would be subpoenaing him for records with a Nov. 13 deadline, just 10 days after the elections.

One panel where there’s less certainty is the House Foreign Affairs Committee, because Chairman Eliot Engel (D-N.Y.) lost to a primary challenger this year.

A committee aide expressed hope that the next chair would continue investigations into matters at the State Department under Secretary of State Mike Pompeo’s leadership.

“After the Trump Administration ends, it will be crucial to take full stock of the damage that’s been done and determine what legislative remedies are needed to protect our agencies going forward from the sort of abuses we’ve seen under Secretary Pompeo, Michael Pack, and others,” the aide said in a statement to The Hill.

But it is unclear whether Democrats will charge ahead with their existing probes or ease off their investigative powers, particularly as Biden has campaigned on a message of uniting a divided country.

Pelosi is expected to be intimately involved in whatever strategy Democrats pursue, with some Democrats saying she will likely gauge the temperature of the public, the caucus and Biden, if he’s in the Oval Office, before deciding how to proceed.

A spokesman for Pelosi did not respond to The Hill’s request for comment.

“I suspect this is going to be very much a case-by-case decisionmaking about what to do,” said Rep. Jamie Raskin (D-Md.), a member of the House Judiciary and Oversight committees.

Another question is how far back Democrats will want to go in Trump’s presidency, including a possible push for information the White House withheld during the House’s 2019 impeachment inquiry.

Democrats acknowledge they will need to strike a balance of not appearing vindictive while conducting what they say is legitimate congressional oversight.

“I suspect some of it has to do with whether we are needing to legislate to repair the damage of particular scandals and corruption,” said Raskin. “There will be a role, undoubtedly, for completing investigations that help us figure out how to prevent various transgressions from repeating themselves.”

Some Democrats are eager to reassert Congress’s authority by going after individuals who defied subpoenas.

“It is really important that we dedicate time to hold accountable those who showed contempt to Congress,” said Rep. Jim Himes (D-Conn.), a senior member of the House Intelligence Committee.

Himes advocated for prosecuting individuals who clearly violated the law while acknowledging that Democrats need to be careful not to “overstep” and “be mindful” of efforts to unify the country, signaling the fine line Democrats will need to walk next year.

Other Democrats shared Himes’s view, with some jokingly noting that perhaps Republicans will come to agree with them about the need to enforce subpoenas if Biden is in the White House instead of Trump.

If the elections lead to a blue sweep — control of both chambers and the White House — Democrats will not only be rushing to fulfill legislative priorities, they’ll also be keen on closing loopholes they say were abused by Trump officials.

Democrats have already expressed a desire to pass a host of specific proposals: strengthening the Emoluments Clause and the Hatch Act; compelling presidential candidates to release their tax returns; boosting protections for whistleblowers; and affirming the independence of inspectors general from political pressure.

“We clearly need a new procedure to stop presidents from exploiting their office for private gain,” said Raskin of the Emoluments Clause, pointing to reports of Trump pocketing money from foreign governments. “I would say that investigation should continue and expand, but with an eye towards preventing the Trump model from repeating itself.”

Quigley said Democrats are also interested in overhauling rules for prosecuting presidents. In particular, he said if a president commits a crime in their first term, the statute of limitations — currently five years — all but precludes prosecution after a second term.

“If you follow the [Department of Justice] notion that they serve a second term, they are exempt from prosecution — eight years,” he told The Hill. “That’s the kind of thing we have to capture. There should be a whole packet on this, as there was post-Watergate. The best way to describe this is: The Constitution wasn’t written with this president in mind.”

Some Democrats have suggested that if their party wins control of both Congress and the White House, the energy on Capitol Hill will be more focused on fulfilling an ambitious legislative agenda that includes tackling COVID-19, climate change, infrastructure and a host of other issues, making it harder to keep the political pressure on pursuing Trump investigations.

Other Democratic lawmakers have indicated they don’t want to fall into a trap of endless probes, fearing that doing so would alienate voters and counter the message of national healing that Biden is seeking to project.

At the same time, there is a loud contingent of Democrats who argue that the president is not above the law and he should be held accountable, even if that means pursuing investigations into a previous administration.

“Congress has a responsibility to conduct oversight, and we cannot allow the precedent that illegal acts when committed by a president or others in the administration will be tolerated,” said Rep. Gerry Connolly (D-Va.), a senior member of the House Oversight Committee. “No one is above the law in America.”