House Republicans are looking forward to pursuing their congressional investigations next year with a friendlier Justice Department under the Trump administration, one that could pursue contempt of Congress charges to give teeth to congressional subpoenas.
Some of the most prominent probes in the current Congress came from the House Judiciary and House Oversight and Accountability committees, whose chairmen frequently worked hand-in-hand on investigations of officials in the Biden administration and clashed with the DOJ over access to documents and interviews.
The chairs, Reps. Jim Jordan of Ohio and James R. Comer of Kentucky, as well as members of both panels, since the election have echoed President-elect Donald Trump’s concerns about the “weaponization” of government against conservatives. Trump campaigned in part on retribution against his critics, including perceived opponents in the Biden administration.
Comer said he’s heard rounds of complaints from his fellow conservatives that the DOJ did not act on the contempt referral of Attorney General Merrick B. Garland. “Well, the reason is we haven’t had a fair Department of Justice. Now we have a fair Department of Justice,” Comer said.
The House can adopt a resolution for criminal contempt of Congress, but the Justice Department decides whether to prosecute. A Trump administration could come to different conclusions.
Comer said that “the only way we’re going to see accountability from all the investigations that Jim Jordan and I have done over the past two years is if the Trump Department of Justice takes the criminal referrals and prosecutes people for being held in contempt of Congress.”
Comer pointed to two contempt of Congress prosecutions brought by the Biden administration, the first since the 1980s, as evidence of a two-tiered system of justice at the DOJ, one he hoped the new Trump administration would correct.
A Democrat-led House adopted contempt resolutions against former Trump administration officials who refused to cooperate with the House select panel investigating the Jan. 6, 2021, attack on the Capitol. Steve Bannon and Peter Navarro were convicted of two counts each of contempt of Congress and served prison sentences.
“I think the American people saw that. I think the American people believed that there was a two-tiered system of justice, and that’s why they voted for Trump in such large numbers,” Comer said.
One House Oversight member, Rep. Clay Higgins, R-La., said he hopes that the new Justice Department will aid in investigating what he thinks is criminal conduct by current Biden administration officials even after they have left the administration.
“They think it is going to be a peaceful retirement, it is not going to be a peaceful retirement,” Higgins said of outgoing administrative officials.
Trump’s pick for attorney general, former Rep. Matt Gaetz, R-Fla., has leveraged congressional proceedings to help Trump in the past and filed a resolution to hold in contempt Mark Pomerantz, a former New York special assistant district attorney who took part in the office’s investigation of Trump and his businesses, amid a legal spat over him testifying to Congress.
The full House adopted contempt legislation for only one Biden administration official this Congress, against Garland for refusing to provide audio of President Joe Biden’s interview with special counsel Robert Hur about the retention of classified documents while Biden was a private citizen after the White House invoked executive privilege.
The full House could also soon vote on holding Secretary of State Antony J. Blinken in contempt after Blinken refused to testify on the handling of the withdrawal of U.S. troops from Afghanistan.
Potential cudgel
Meanwhile, advocates and Democrats worry that Republicans will use their power, and the threat of prosecution, as a cudgel against political opponents in government and the general public.
Donald Sherman, executive director and chief counsel for the Citizens for Responsibility and Ethics in Washington, said congressional investigations have few checks on their broad reach and could be a method for Trump to enact his campaign promises of retribution on current and former government employees.
“I think that is a very obvious and not well-disguised method of President Trump effectuating attacks on his enemies while trying to keep his hands clean,” Sherman said.
Most other federal investigative tools, such as criminal subpoenas, require the approval of an independent arbiter like a judge or grand jury and limitations on their scope, Sherman said. Not so with congressional subpoenas, which have few limitations and come with potential criminal liability.
“One way for the Trump administration to give cover to attacking their political enemies is by having allies in Congress gin up investigations against said enemies and then relying on bad-faith investigations to spur contempt of Congress prosecutions by Attorney General Matt Gaetz if he is confirmed,” Sherman said.
Jordan said he intends for the House Judiciary Committee to continue its probe of special counsel John L. “Jack” Smith’s office in the new Congress, as well as that of special counsel David Weiss, who has shepherded the probe of Joe Biden’s son Hunter.
Smith is in the process of winding down the criminal cases against Trump after his victory in the election because of a DOJ policy that prohibits prosecutions of sitting presidents. Jordan sent a letter to Smith Nov. 8 directing him to retain any documents from the probe.
“With President Trump’s decisive victory this week, we are concerned that the Office of Special Counsel may attempt to purge relevant records, communications, and documents responsive to our numerous requests for information,” the letter said.
Jordan also said he intends to have the committee continue its probes of Biden administration officials’ actions around social media, as well as the special counsels appointed to investigate Biden and Trump.
“We’re still concerned about the censorship and what took place in the Biden administration, so we’ll continue that work,” Jordan said.
Jordan said he intends to continue probes into the “weaponization” of the federal government, pointing to reports of Federal Emergency Management Agency staff allegedly being directed to avoid homes with Trump signs outside of them — an issue the oversight panel held a hearing on Tuesday.
Rep. Ben Cline, R-Va., a House Judiciary Committee member, said he looks forward to working with Trump officials “to make sure we get rid of any individuals who are pursuing lawfare against conservatives or Republicans, and return the Justice Department to the independent institution that it has been for so long.”
Musk and more
Comer said the Oversight panel will focus on waste, fraud and abuse in the federal government. He also said he will work closely with the Department of Government Efficiency, an outside-of-government effort led by billionaire Elon Musk and onetime Republican presidential candidate Vivek Ramaswamy that is frequently referred to as DOGE.
Musk, a close ally of Trump who does significant business with the federal government, has been a prominent critic of government officials and Democrats. Musk on Tuesday amplified a social media post that called for the arrest of Dr. Anthony Fauci, who served as director of the National Institute of Allergy and Infectious Diseases through 2022.
Oversight panel ranking member Jamie Raskin, D-Md., when asked about the prospect of increased use of congressional subpoenas and contempt proceedings in the new Congress, waxed laconic about a 1798 letter Thomas Jefferson wrote about waiting for the American public to “restore the government to its true principles.”
“We do not think that the entire government should be turned into a weapon of political retribution and revenge against adversaries real or imagined,” Raskin said. “There is a politics of conspiracy theory and paranoia which has been set loose in the land. And we’ve got to return to some baseline normality here.”
Former House general counsel and Gibson Dunn law partner Thomas Hungar said that it’s likely that Republicans will have a better working relationship with the new Trump administration than they did with the Biden administration.
“Generally speaking, the interbranch tensions are going to be reduced significantly,” Hungar said.
This report was corrected to accurately reflect the date of the letter from Rep. Jim Jordan to special counsel John L. “Jack” Smith, and the adoption of two contempt resolutions regarding Attorney General Merrick B. Garland.
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