Washington Update: How Michael Cohen Ended Up Testifying Before Congress
It’s been quite a day on Capitol Hill. The U.S. House Committee on Oversight and Reform, the House’s main investigatory body, is in the midst of hearing from Michael Cohen, President Donald Trump’s former personal lawyer. The line of questioning thus far has been divided almost entirely on political lines, with Democrats welcoming Cohen’s criticisms of the president and various Republicans calling Cohen “pathological” or focusing on his criminal record.
But this is a politics-free zone, so we won’t get any further into the Oversight Committee’s hearing today. Instead, we’ll take a look at Congress’ oversight of the White House through American history. And, spoiler alert: Congressional oversight has never been as politicized as it has been in recent history.
While Congress has provided oversight of the executive branch, through standing committees and special panels, since the very beginning of the Republic, the politicization of the process goes back to the early to mid-20th Century and the House Un-American Activities Committee, or HUAC. Today, as we’ll delve into later on, even the name of the House panel is a political argument.
The U.S. Constitution does not reference the legislative branch’s right to provide executive branch oversight, but as longtime political news analyst Cokie Roberts explained to NPR in 2017, oversight is “implied” within the document and the concept “certainly was discussed at the Constitutional Convention.”
At the Convention, Virginia delegate George Mason argued members of Congress “possess inquisitorial powers” and “must meet frequently to inspect the Conduct of the public offices.” Mason followed in the tradition of Pennsylvania’s James Wilson, a delegate to the Convention and a future Supreme Court justice, who wrote in 1774 that members of the legislative branch were considered the “grand inquisitors of the realm.” Wilson also noted, “The proudest ministers of the proudest monarchs have trembled at their censures; and have appeared at the bar of the house, to give an account of their conduct, and ask pardon for their faults.”
Despite these longstanding roots of implied Congressional investigative authority over the Executive Branch, the United States Congress existed for almost two hundred years without any formal oversight authority. According to the nonpartisan Congressional Research Service, it wasn’t until the 1946 Legislative Reorganization Act (LRA), however, that the call for “legislative oversight” in public law was explicit. The LRA directed House and Senate standing committees “to exercise continuous watchfulness” over programs and agencies under their jurisdiction and authorized professional staff for these panels. (The LRA also, among its many provisions, heralded in the first legal requirement that federal lobbyists register with Congress and make period public disclosures about their lobbying activity.)
The current House Committee on Oversight and Reform – the venue for today’s cable news drama – has its origins in the Committee on Expenditures in the Executive Departments, which was established in 1921. That committee was renamed the Committee on Government Operations in 1952 “to communicate the primary function of the committee: to study ‘the operations of Government activities at all levels with a view to determining their economy and efficiency.’” The 106th Congress, which convened in 1999 under Republican control and prioritized reducing the federal government’s footprint, renamed the panel the Committee on Government Reform. In January 2007 – after Democrats took back the House – the 110th Congress added the word “oversight” before “government reform” to indicate its intention to investigate the Bush administration’s conduct of everything from the Iraq War to Hurricane Katrina recovery.
Finally the 116th Congress, which kicked off just last month, settled on the renaming the panel the House Committee on Oversight and Reform. Republicans believe the most recent name change also is political. Casey Burgat, a governance fellow at R Street, a right-leaning nonprofit, said the move signals Democrats “want to be able to investigate everything.”
Perhaps, but investigations always have been at the heart of Congress’s functions. When lawmakers of the 1st Congress took office in 1789, committees like the Rules and Ways and Means committees were tasked with providing oversight. U.S. House historians note the 1st Congress investigated Robert Morris, the superintendent of finances during the Continental Congress and the American Revolution, regarding his handling of the country’s finances. During the proceedings, Rep. James Madison (Va.) said the “House should possess itself of the fullest information in order to doing justice to the country and to public officers.”
In 1792, a House special committee investigated the military defeat of General Arthur St. Clair at the Battle of Wabash during the Indian Wars. According to the National Museum of the United States Army, this battle was “was one of the first tests of the fledgling U.S. Army of the Early Republic.” It turned out to be the “worst disaster experienced by the U.S. Army at the hands of Native Americans.”
The massacre led to the first investigation of an official that served directly under the president. Federal lawmakers debated whether they had the right to investigate General St. Clair at all. The House eventually agreed to a resolution “to call for such persons, papers, and records, as may be necessary to assist their inquiries.” President George Washington complied with the investigation, but only after agreeing to “rules of disclosure that formed the early basis of what is now known as ‘executive privilege,’ or the President’s prerogative to use private documents and unvarnished advice to formulate policy decisions.” (No word on whether he tweeted about it.)
It was three years later, in 1795, during an investigation of attempted bribery of federal lawmakers, that the House established its ability to compel witnesses – like Michael Cohen – to testify. As U.S. House historians explain, Robert Randall, a real estate speculator, had tried to purchase land from the federal government and to share the profits with lawmakers who approved the sale. Randall was called to testify. The House Sergeant-at-Arms arrested Randall and brought him before the House, “where he was reprimanded and placed in a local jail for a week.”
Future congresses followed the founders’ lead.
During the Lincoln administration, Congress investigated the leak of his State of the Union message to the newspapers. (Lawmakers thought Mary Todd Lincoln, the president’s wife, was responsible for giving the speech to journalists.) In 1949, a Senate special committee investigated corruption of Truman administration officials. A little more than a decade later in televised hearings, members of the Senate Foreign Relations Committee examined President Lyndon Baines Johnson’s conduct of the Vietnam War. Those hearings are credited with stoking opposition to the conflict. In 1973, of course, the Senate Select Committee on Presidential Campaign Activities investigated Watergate.
U.S. House historians note that investigatory hearings sometimes have been used for “less noble purposes.” The House Un-American Activities Committee, established in 1938, for example, investigated allegations of communist activity in the United States during the Cold War. The History Channel says HUAC created an “intimidating atmosphere” that “often produced dramatic but questionable revelations.”
The aggressiveness of the hearings launched a case that would result in a Supreme Court ruling that found, while broad, Congress’s oversight rights are not unlimited. In Watkins v. United States, a 1957 case that asked whether the HUAC constituted an unconstitutional exercise of congressional power, the Supreme Court outlined the limitations of Congress’ oversight authority. The decision noted, for example, “There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress. ... Nor is the Congress a law enforcement or trial agency.”
The justices concluded “no inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.”
So, while the cable news channels drone on about the president’s former personal lawyer testifying today before the House of Representatives, take some comfort in knowing that Congress’ authority to both compel witnesses like Mr. Cohen to appear and to investigate anything at all is steeped in precedent that has evolved over the last two-and-a-half centuries and began with America’s very first Commander in Chief.
Steve Boms is the founder and President of Allon Advocacy, LLC, a Washington, D.C.-based public policy consulting firm. Steve has spent his career focused on complex financial services public policy issues, having worked in the United States Congress on the committee with jurisdiction over banking. He has led advocacy efforts and public policy teams globally for equity options exchanges, large U.S.-based financial institutions, and leading fintech firms. In addition to working directly with Allon's clients, he is a frequent conference panelist and his perspective is solicited by reporters on the technology, financial services, and regulatory beats.
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