If you are looking for government corruption, Washington has always been a target-rich environment. But the past two years of the Trump administration have seen the swamp rise to extraordinary levels. Despite remarkable threats from the White House suggesting that congressional investigations might be a crime, Democrats are preparing to scrutinize what Senator Raphael Warnock has called “the most corrupt administration in American history.”
Many Democrats will be tempted to go directly after the president for his misdeeds. A better strategy would be to take a page from the prosecutor’s playbook on investigating organized crime.
In many ways Trump and his inner circle resemble an organized crime family, with Donald as the don. Such groups are tightly knit, held together by bonds of unwavering loyalty to the organization and its authoritarian leader. They prize secrecy. They enforce their demands through intimidation and coercion. The members work to enrich themselves, displaying little regard for law or institutions. Responsibilities are compartmentalized and diffuse, in ways that insulate those at the top from accountability.
When prosecutors work to dismantle these organizations, they often start from the bottom: find the lower-level players, build cases against them, persuade them to cooperate, then work up the ladder.
[Quinta Jurecic: A very suspicious prosecution of two former FBI officials]
But expecting Attorney General Todd Blanche to pursue such cases would be like expecting the consigliere to investigate the family. He almost certainly won’t appoint special counsels to investigate, even though a squadron of them is called for. And Trump has already promised to pardon everyone “who has come within 200 feet” of the Oval Office. Given the zeal with which he wields the pardon power, anyone whose dreams of accountability feature perp walks and orange jumpsuits is likely to be disappointed.
Congress might also be tempted to impeach Trump, as it did twice during his first term. But Democrats would be wise to avoid that route this time.
Presidential impeachment sucks all the air out of the room. It feeds Trump’s martyr complex and keeps him at the center of attention. And although it might satisfy some Democrats, in the end it will almost certainly fail again. In the new Senate, more than 10 Republican senators would have to vote to convict. Even after such a decisive electoral rebuke, it’s hard to see that happening.
The more fruitful course for Democrats will be to leave Trump to his interior decorating and recognize that their time is better spent focusing on the misconduct of those around him and those tied to his administration. In the process, they will inevitably document the misconduct of Trump himself.
Congressional-oversight investigations are now more crucial than ever. In this environment, they are the best available vehicle for exposing and documenting the administration’s misconduct. And unlike with a criminal grand jury, congressional investigations can be open to the public, which is essential for informing the public’s vote, come 2028. Congress can build a public record of the transgressions of this administration, working all the way up to Trump himself, for all of America to see.
The coming congressional investigations will face unprecedented hurdles. But Congress possesses many of the same investigative tools that a prosecutor would use to build a case against a crime boss and his organization. Congressional committees are busy staffing up with attorneys and investigators, many of whom resigned or were forced out of Blanche’s DOJ, who know how to do this work.
First, as Senator Ron Wyden so succinctly posted on X: “Subpoenas.” Like a prosecutor conducting a grand-jury investigation, Congress can compel the production of documents and the testimony of witnesses under oath. While in the minority, Democrats could only request information, and had no way to force compliance. That will now change.
Congress, like a prosecutor, also has the power to grant immunity to a witness who claims a Fifth Amendment right not to testify. For a witness, a grant of immunity is an offer you can’t refuse: It requires you to testify or face contempt charges. As a former federal prosecutor, I’ve seen firsthand the power of immunity in unearthing the truth.
Congress is often reluctant to grant immunity for fear of undermining a potential criminal prosecution of the immunized witness. But that is less of a concern if one assumes that Trump will pardon the witness anyway.
If people defy subpoenas, Congress can go to court to enforce them, and it should do so aggressively, asking judges to fast-track the process. Courts can move quickly when they need to. Stonewalling should not be tolerated or rewarded.
Although we can expect the administration and those closest to Trump to resist at every turn, private companies and individuals have a great deal of relevant information and will likely be more compliant. These are the lower rungs on the ladder that can lead to further evidence and investigation.
Congress can also vote to hold witnesses in contempt. Under current law, a contempt resolution would be referred to the Justice Department for potential prosecution and thus would go nowhere. But there is a five-year statute of limitations, and prosecutions would still be potentially viable if there is a Democratic administration after 2028. That’s also true for any potential charges for witnesses who lie before Congress or obstruct an investigation.
Of course, an ordinary mob boss doesn’t have the pardon power. Trump’s ability to pardon the malefactors who surround him will loom over this process. But pardons do not excuse a witness from testifying before Congress. Indeed, a preemptive pardon could make it more challenging for a witness to invoke the Fifth Amendment, because he or she will no longer have a well-founded fear of prosecution.
[Read: Trump can prosecute anyone now]
Pardons also don’t shield a witness from public shame. They don’t foreclose potential civil liability or other business or professional consequences. And a pardon can’t stop Congress from impeaching and removing a Cabinet member or other presidential appointee.
In addition, at least some witnesses will have to make a difficult calculation: Am I really willing to commit (further) crimes and stake my liberty on the promise of a pardon from an erratic and unfocused president? Who would want to take that bet?
In this particular investigation, the don himself will likely remain out of reach—at least where criminal liability is concerned. Given the Supreme Court’s decision on presidential immunity, even if investigations uncover criminal conduct by Trump, prosecuting that conduct after he leaves office is likely to be a nonstarter. And although the validity of such a move is untested, he’ll probably pardon himself on the way out the door as additional insurance. But Congress can ensure that he does not escape the judgment of history.
This historic election is a mandate for Congress to lead a similarly historic public reckoning. It must vigorously investigate the corruption and misconduct of the past two years. Not because those investigations will lead to criminal prosecutions. Not because the mission is to “get” Trump. But because Congress has an obligation to build a historical record of what has happened, hold those involved publicly accountable, and enact legislation designed to ensure that it can’t happen again.
Leave a Reply