Respond to this Article June 2006

Investi-Gate

What's really at stake in the November elections.

By Zachary Roth

There are plenty of reasons why George W. Bush managed to eke out a 51 percent re-election victory in 2004: John Kerry was a lousy candidate; Iraq had not yet descended into civil war; and anti-gay-marriage ballot initiatives in several swing states helped bring out conservative voters. But other, less-discussed factors also played a role.

In November 2004, voters didn't know that Bush had personally been warned that a key piece of evidence he had used to make the case for war in Iraq--that Saddam's aluminum tubes were being used to process uranium--was likely incorrect. They didn't know that the president's campaign had received hundreds of thousands of dollars through a corrupt lobbyist named Jack Abramoff, and that Bush had hired one of Abramoff's cronies, David Safavian, as the federal government's procurement czar. They didn't know that the president and vice president had ordered the leaking of classified--and highly misleading--information to discredit the whistle-blowing former ambassador Joe Wilson, even while Bush was declaring his intention to fire the leaker. They didn't know that the president had authorized a massive and probably illegal domestic wiretapping operation. They didn't know that an increasing number of U.S. combat generals in Iraq thought Bush's defense secretary was incompetent and ought to be fired.

The public was unaware of these facts--all of which were true prior to the 2004 election--for one overriding reason: Congress, the branch of government constitutionally empowered to provide the oversight that might have uncovered them, wasn't looking very hard. This is hardly surprising, considering that both Congress and the White House are controlled by a Republican Party that has made ruthless partisan unity its guiding strategy. (We only know these things now in large part because of the somewhat-belated efforts of journalists, whistle-blowers, and non-partisan government prosecutors.) Nor should it be a shock that now, in the run-up to the 2006 midterm elections, the party's top elected officials continue to follow the script that worked so well for them in 2004: Keep a lid on investigations.

Remember how Senate Intelligence committee chairman Pat Roberts (R-Kan.) delayed until after the 2004 elections any investigation into how the administration might have misused intelligence in the run-up to the Iraq war? Well, in late April he announced his intention to again postpone that still-unfinished investigation, presumably until after the 2006 elections. In March, his committee also rejected, on a straight party-line vote, a Democratic call for a probe of the administration's wiretapping program. Senate Republicans have blocked the Armed Services committee from hearing the testimony of the retired generals who have publicly called for Rumsfeld's resignation. And despite continued public frustration with the complex, snafu-prone Medicare drug program--latest gem: One in five seniors on the program have wound up paying more for their medicines--GOP congressional leaders have apparently seen nothing that warrants even cursory scrutiny.

The Republican Congress has specialized in Potemkin hearings. The Judiciary committee under Sen. Arlen Specter (R-Penn.) made a show of examining the wiretapping program, but when the committee asked for testimony from former attorney general John Ashcroft, and his deputy, James Comey--both of whom, according to Newsweek, had expressed serious reservations about the program's legality--it was politely informed by the Justice Department that neither man "would be in a position to provide any new information." Rather than use his subpoena power, Specter left it at that. In May 2004, Sen. John Warner (R-Va.), chair of the Armed Services committee, loudly vowed to get to the bottom of the Abu Ghraib torture scandal, but called it a day after a few hearings, despite clear evidence that senior military and civilian officials were implicated. Sen. John McCain (R-Ariz.) used his Indian Affairs committee to look into how Jack Abramoff bilked his tribal clients, but pulled up short when the evidence began to point to administration officials and party operatives like Grover Norquist, whose support McCain will need in the 2008 Republican presidential primaries. The Homeland Security committee, under Sen. Susan Collins (R-Maine) stirred itself to investigate the disastrous federal response to Hurricane Katrina, but refused to look closely at the fatally-flawed White House decision-making process, and blocked Democratic efforts to subpoena White House emails.

The Republican Congress's extreme reluctance to investigate the Bush administration is hardly a secret. Some lawmakers even brag about it. In July 2004, Rep. Ray LaHood (R-Ill.) proudly declared: "Our party controls the levers of government. We're not about to go out and look beneath a bunch of rocks to try to cause heartburn." Even Virginia Thomas--wife of Clarence--who, as a top aide during the '90s to Majority Leader Dick Armey, ran the fiercely partisan Republican effort to use Congressional committees to investigate and harass the Clinton administration, thinks today's Congress has fallen down on the job. "There's a lot of pressure on Republican members [to avoid oversight] with the Republican administration," she says. "It's as if it's not civil."

Congress's disinclination to hold President Bush accountable has few historical parallels, say congressional experts. "In our lifetimes, I can't recall a greater failure on the part of a Congress to do serious oversight," says Norman Ornstein, a congressional scholar at the conservative American Enterprise Institute. "The attitude of the Republicans in Congress has been: Avoid embarrassing the president at all costs."

This is not the approach the GOP Congress took when Bill Clinton occupied the Oval Office. Since 1997, the House Government Reform committee has issued over 1000 subpoenas related to allegations of misconduct involving the Clinton administration or the Democratic party--compared to just 15 related to Bush administration or Republican abuses. The seemingly endless probes of the Clinton administration turned up little in the way of corruption, and stymied the Republican revolution: In the 1998 midterm elections, with the Lewinsky scandal in the news, Democrats picked up seats in Congress.

But those investigations left a residue of ill will that Republicans have cleverly turned to their own advantage. In a stunning display of chutzpah, GOP leaders are now exploiting voters' fears of endless partisan investigations--fears that they themselves created with their own behavior in the '90s--to caution with faux solemnity that Democrats, if given control of one or both houses of Congress, would impeach the president and plunge the nation into turmoil. In a recent fundraising email, RNC chairman Ken Mehlman warned that Democrats "will censure and impeach the President if they win back Congress."

The press corps has been quick to take the bait. "If Democrats win in the midterm elections in November, will the Democrats in Congress move to impeach this president?" Norah O'Donnell breathlessly asked DNC chair Howard Dean on MSNBC's "Hardball" in April. Dean's response suggests how deeply this line of attack has Democrats spooked: He hedged, assuring O'Donnell that impeachment "is going to come pretty low on the list," and quickly pivoted to talk about jobs and port security. And Dean is the Democrats' attack dog! Other party leaders want even less to do with the question, for fear of giving the Republicans ammunition to argue that a Democratic House would mean endless partisan rancor.

With pundits and Republicans alike crying "impeachment!" it's no wonder that Democrats aren't eager to advertise the fact that capturing Congress would allow them to pursue investigations. The tragedy is that a full accounting of the Bush years is what the country most needs, to put an end to the cycle of lies and cover-ups, and perhaps even fix some disastrous policies, from Medicare to Iraq. Moreover, the notion that it's impeachment-or-bust--that an opposition party conducts investigations and holds hearings only to punish or embarrass the White House--is a product of recent history. The aggressive partisan investigations of the 1990s were an aberration. For most of American history, lawmakers have held presidents to account regardless of party affiliation. This tradition of real bipartisan oversight has allowed government to uncover mistakes, keep itself honest, and move the country forward. It's been pretty good politics, too. And it could be again. á

From Whisky Ring to Monica

To find a historical moment even remotely akin to the present, one has to go all the way back to the presidency of Ulysses S. Grant. During all but the last two years of the former general's notoriously corrupt Republican administration (1869-77), Congress was also in Republican hands. During those six years, GOP lawmakers failed to look into several executive branch transgressions--most famously the Whisky Ring scandal, in which federal officials were siphoning off funds from taxes on distilleries and using them for Republican campaign activity. It was only through the efforts of the treasury secretary, William Barstow--who was motivated in part by presidential ambitions--that the extent of the scandal was brought to light.

During subsequent periods when one party controlled both elected branches, lawmakers generally did a better job of fulfilling their oversight responsibilities. It was a progressive Republican senator, Robert LaFollette Sr., who in 1922 kicked off the investigation into the Teapot Dome scandal, in which President Harding's interior secretary ultimately went to prison for taking bribes from oil companies in return for no-bid energy leases on public lands. Having investigated their own party's administration, congressional Republicans wound up gaining House and Senate seats in the next election.

Democrats, too, have gone after their own. In 1941, a little-known senator named Harry Truman led a congressional investigation into waste, fraud, and mismanagement in military procurement. His effort helped save the government $18 billion, landed him on the cover of Time, and propelled him to the vice presidency in the administration he had investigated. And in 1966, amid mounting public opposition to the war in Vietnam, Sen. William Fulbright, the Democratic chair of the Foreign Relations committee, held high-profile hearings challenging LBJ's conduct of the campaign. Though they weren't enough to keep the White House in Democratic hands after the 1968 presidential election, Fulbright's hearings helped constrain the president's freedom of action on the war, and became a point of pride for a generation of Democrats.

But it's not that the Republicans who run today's Congress object to serious investigations, of course. They just object to serious investigations of Republicans. When the GOP regained control of Congress after the '94 midterms, it launched an aggressive effort--about which it was largely open--to use congressional committees and investigations as a partisan political tool, designed to thwart the Clinton administration's agenda and damage the president politically. A memo sent "on behalf of the House leadership" by two Republican congressional power-brokers, Reps Jim Nussle and Bob Walker, directed committee chairs to search their investigative files for "examples of dishonest [sic] or ethical lapses in the Clinton administration," and to forward them to Virginia Thomas's office "for determining the agenda." Defending the decision to task Thomas, a top leadership aide, with compiling politically-damaging information on the opposing party, one House committee staffer told Roll Call: "It takes a full-time person to make sure we get all the Clinton scandals exposed."

The Clinton administration provided Congress with more than a million pages of documents in response to investigative inquiries--including, at one point, the White House Christmas-card list. But voters quickly came to see the effort, which culminated with the impeachment of the president, as partisan and vindictive, and it backfired. House speaker Newt Gingrich left office in disgrace, while Clinton finished his second term with lofty approval ratings.

Under Clinton, then, a partisan Republican Congress conducted full-bore investigations into everything. Under Bush, the partisan Republican Congress has conducted full-bore investigations into nothing. That GOP attitude is unlikely to change unless the balance of power in Washington changes. Even as the president's poll numbers plunge into the low 30's, jeopardizing congressional Republicans' re-election chances, they've not shown any inclination to conduct serious hearings on the administration's misdeeds. And should Congress remain in Republican hands, they certainly won't become more eager to investigate the Bush administration (and themselves). Rather, they'll breathe a sigh of relief, proclaim their "accountability moment" over, and congratulate each other on their effective strategy of shutting down investigations.

Building a better investigation

The only real chance, then, that Congress will uncover the truth of what's happened in Washington during the Bush years will come if Democrats to win in November--a fact that puts the mainstream press in an awkward situation. While mainstream journalists, for obvious reasons of professional interest, generally support openness and increased access to information, they feel they cannot be seen as siding with one political party over another. Should the Democrats take the House, the press, desperate to stick to a "neutral" storyline, will frame the issue of post-election investigations as being not about accountability and access to information, but about political payback. Hence the current focus on impeachment.

So what will the Democrats really do if they win the House? I spoke to a broad range of Beltway Democrats, both inside and outside Congress, and got, essentially, three different answers. A considerable number seem disinclined to press their advantage if given the chance. "When you do oversight, ultimately, the press is the judge of your credibility," one top Democratic committee staffer told me. Using investigations to delve too deeply into the past, or to settle old scores, he argued, would be "world-class stupid." He called the deception over the cost of the Medicare drug bill "old news." Lanny Davis, who served as White House counsel to President Clinton, went even further, arguing that any use of Congressional investigations that's not directly focused on solving the public's problems will backfire on Democrats. "I could come up with a hundred investigations, and 90 percent of the American public would say: 'Can you please do something about our public school system?' And: 'Would you please tell me why we're not energy-independent enough?' And: 'Would you please get us out of Iraq and make us safe from terrorism?'" he told me. "I don't care about digging up whether Bush lied or not, or whether they manipulated evidence or not. That's just playing gotcha."

Other liberal insiders advise the opposite. Democrats, they say, should do to Republicans what Republicans did to them in the '90s: design investigations for maximum political impact, and make no effort to give them an even nominal ly bipartisan gloss. "The public never understands what a bipartisan hearing is, so you don't really need that," Melanie Sloan, of Citizens for Responsibility and Ethics in Washington, argued. "The Republicans haven't shown a lot of interest in bipartisan hearings. They don't hold hearings. You don't need the Republicans."

But for the most part, the Hill Democrats who matter the most--those who would be sitting in committee chairs--seem to agree on what their strategy would be if given the chance. They'll hold aggressive investigations and issue plenty of subpoenas, but they'll also find ways to reach across the aisle whenever possible. "I don't think it's payback, but if people purposely manipulated intelligence or lied to the American people, or targeted whistleblowers, I think that's just getting to the truth," said another top Democratic House committee staffer. "I just think it's stronger and more credible if it's bipartisan."

That strategy may sound na´ve and high-minded, but history suggests it's the right approach, even when the crimes of the White House are indisputable. Watergate offers a model for how Democrats might attract Republican support, and use it to strengthen, rather than weaken, their investigations' impact. The Senate hearings were conducted by Sam Ervin, a conservative Southern Democrat who declared at the investigation's outset that he found it "simply inconceivable" that the president was involved. The House Judiciary committee, for its part, allowed its minority Republican members to rewrite the articles of impeachment when they balked at the original version produced by Democratic lawyers. The strategy paid off, helping to convince the committee's "Fragile Coalition"--a group of wavering Republicans and Southern Democrats, all of whom represented districts that had overwhelmingly backed Nixon in '72--to vote for impeachment. It was the support of the Fragile Coalition that made it impossible for the White House to dismiss impeachment as a partisan witch-hunt, and that ultimately forced Nixon to resign.

Similarly, during the 1987 Iran-Contra investigation, congressional Democrats took pains to reach out to Republican members, persuading three GOP senators to sign onto a report that blasted President Reagan for "secrecy, deception, and disdain for the law." This bipartisan verdict ultimately forced Reagan to jettison his most hawkish advisers, and to recognize the need for a more conciliatory approach to foreign policy. The rapprochement with the Soviet Union--underway since Gorbachev's ascension to the premiership in 1985--intensified, and ultimately contributed to the Soviet Union's breakup in 1990. Princeton historian Sean Wilentz goes so far as to argue that the Iran-Contra hearings helped to end the Cold War.

To be sure, the level of partisan bitterness in Washington is much higher then it was even in the '80s, and Democrats who have tried to work in a bipartisan manner have been taken to the cleaners in recent years. But there's reason to think that once in power, Democrats will be able to attract cooperation from some Republicans. The Bush administration's combination of arrogance, secrecy, and disregard for Congress has alienated more than a few GOP lawmakers. Many have shown an impulse to challenge the administration, from old-guard moderates like Rep. Christopher Shays (R-Conn.) and Sen. Richard Lugar (R-Ind.) to newer independent-minded conservatives like Sen. Lindsey Graham (R-S.C.) and Rep. Jeff Flake (R-Ariz.). That impulse has so far been largely kept in check by GOP congressional leaders, who have used the power of the majority--committee assignments, prospects of legislative accomplishments, and old-fashioned pork--to keep their members in line. But if Democrats control the House, they'll be able to use many of those same rewards to lure wavering Republicans into cooperating. The leadership agrees. "I think you will see Republicans participate," House Minority Leader Nancy Pelosi recently told a group of liberal journalists. The prospect of a thorough accounting of the Bush years is what keeps the president and his team up at night. "If we don't keep Congress, there won't be a legacy," a presidential adviser recently told a reporter for Time. "The legacy will be investigations."

Democrats might wish they could avoid talking about their investigative plans. But if they do, the press and the GOP will raise the issue for them, and they'll frame it around the prospect of impeachment. So Democrats might as well meet the challenge head on, and spend the summer making their case. Of course we'll vigorously investigate the administration if we win, they should say. And we'll do so the same way previous Democratic Congresses have investigated GOP presidents: shoulder-to-shoulder with honest Republican lawmakers willing to put country before party. The fact that the current GOP leadership chose to abandon the great American tradition of bipartisan Congressional oversight is no reason Democrats have to follow suit. Instead, they should embrace that tradition, with the faith that if they do, the president will get the legacy he deserves.

Zachary Roth is an editor of The Washington Monthly.


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