Aziz Huq teaches law at the University of Chicago Law School and is co-author of How to Save a Constitutional Democracy. Tom Ginsburg teaches law at the University of Chicago Law School and is co-author of How to Save a Constitutional Democracy.

Now the House of Representative has flipped to the Democrats, conventional wisdom anticipates the new leadership will launch a wave of investigations into not only the president but also the proliferating scandals around figures such as Interior Secretary Ryan Zinke, Commerce Secretary Wilbur Ross and Federal Emergency Management Agency chief Brock Long. The firing of Attorney General Jeff Sessions only exacerbates that possibility.

Some have even suggested that congressional investigations will suffice to address any legally questionable moves by the present administration. But such optimism should be tempered: The new House will have to proceed strategically in selecting both the topics and the tools of inquiry. Missteps will not only undermine proper oversight and generate partisan blowback. They might also sap the long-term prospects for maintaining an executive branch constrained by the rule of law—something both liberals and conservatives should fear.


Congressional oversight is largely conducted by committees holding hearings and requesting information. House and Senate rules enable committees to issue subpoenas for information in the form of either live testimony or written documents. The current House rules vest this so-called powerful subpoena power exclusively with the committee majorities.

The power to issue a subpoena, however, is not the same as the power to extract information. Indeed, in very real terms, the House majorities’ ability to ask for information doesn’t mean they’ll get it, or that the ensuing fight won’t inflict considerable collateral damage on the rule of law.

Most important, an executive official can decline to produce information by citing the idea of an “executive privilege” against disclosure. This is the idea that presidents have a right to withhold information or documents because its release would, among other things, compromise the candor of their advisers or undermine national security.

The phrase “executive privilege” is both novel and ambiguous, and it is not mentioned in the Constitution. Although presidents had declined to make disclosures to Congress since the 1800s, the phrase was first used by President Dwight Eisenhower, who invoked it some 40 times during his tenure. It was later endorsed by the Supreme Court in the litigation over President Richard Nixon’s White House tapes. That culminated in the well-known decision in United States v. Nixon, in which the court recognized the privilege, but refused to allow Nixon to invoke it against a subpoena issued by a prosecutor in a criminal investigation.

More than 40 years later, the court has not revisited the Nixon case, and only a smattering of lower courts have spoken to executive privilege’s metes and bounds. This means that the precise scope of the privilege in terms of what materials can be withheld is highly uncertain. Given this presidency’s record of pushing the constitutional envelope, we should expect ambitious, startling, and wholly novel claims of executive privilege to be proffered at every turn.

Historically, when the executive branch has refused to comply with an information request, Congress has had two means of enforcing subpoenas.

First, a chamber has used its constitutional authority to enforce contempt orders by arresting an executive official. In February 1889, for example, the House’s sergeant-at-arms forcibly brought former Minister to China George Seward to the House for impeachment proceedings after he appeared but failed to produce documents sought by the committee.

Today, the idea of the House’s sergeant-at-arms physically restraining an executive branch official seems jarringly inappropriate, to say the least. Such a move would likely stoke the violence that has been bubbling away, tragically, in U.S. political rhetoric and in the actions of some fringe groups. It is thus a tool that is no longer consistent with the (benign) norms of our present political culture—to say nothing of its political cost. We see no merit to this path.

Congress’ second option is to go to the federal courts. For instance, when Bush II White House officials Harriet Miers and Josh Bolton declined to provide information about the allegedly improper firing of U.S. attorneys, the House Judiciary Committee sued—and initially prevailed in federal District Court.

But the judicial safeguard against the excessive or abusive deployment of executive privilege is illusory for three reasons. First, the judiciary since the 1970s has been leery of ordering officials to produce information. In the Miers/Bolton matter, for example, the Court of Appeals stayed proceedings—effectively extinguishing the possibility that either official would be forced to produce information. Even in the more liberal 1970s, in the immediate wake of the Nixon case, courts took pains to avoid confrontation with the executive.

Second, litigation takes months or years. It is always possible for the executive to run the clock on the House—which has a two-year life by law—by appealing, dickering and delaying, until an issue has lost its political legs.

Finally, and most troubling, if the House ultimately presses its case beyond the District Courts and the Courts of Appeal it is likely to face a Supreme Court perhaps inclined to radically expand the executive’s immunity from oversight. Recall that there is no textual basis in the Constitution for “executive privilege.” Moreover, the relevant history and judicial precedent are quite hazy. As a result, the John Roberts Supreme Court is unfettered by law when it comes to expanding executive privilege—or even when it comes to creating new privileges from whole cloth. It is perhaps a bellwether that Justice Brett Kavanaugh has already intimated a sweeping view of the privilege—a view that might shape the court’s ultimate decisions.

The harm from such decisions would be long term and structural. The resulting legal rulings would impose permanent, potentially disabling, constraints on Congress’ ability to ensure that this presidency—or any future administration—has acted under the rule of law. The immediate case for such constraints has only swelled with Matthew Whitaker’s assumption of control over special counsel Robert Mueller‘s investigation. But those rulings would more permanently insulate bad actors in the executive from oversight—a lasting prospect neither liberals nor conservatives should relish.

At the same time, the political costs of such a (likely) doomed confrontation for the House would be substantial. Just as the president has tarred the free press as “enemies of the people,” so he will claim the mantle of victimhood when confronted by a Congress that is anything other than a lapdog. The Sessions ouster makes such confrontation more likely, as perhaps the president anticipates (and relishes). The resulting politics of comparative victimhood is a game at which Trump excels—and so is a contest that the House will likely lose. We see nothing salutary coming from such confrontations over basic tenets of the rule of law.

The congressional power of the subpoena, in short, is far less powerful than many (including, it seems the president) presently believe it to be. But if the standard tools to press the executive for disclosure and oversight are handicapped, is there any path that the House could take?

In short, yes. A successful strategy of oversight can still have teeth while avoiding legalistic confrontations over executive privilege. Here’s what the House needs to do:

First, it should recognize that it has the power to investigate without using subpoenas. historical evidence suggests that hearings and investigations, even in the absence of judicially forced disclosure, materially influence the president’s public standing. As the political scientists Douglas Kriner and Eric Schickler have demonstrated through a meticulous review of past investigations into the conduct and policies of a president and his administration, the public record created by these investigations significantly dents presidential standing and can inflect policy outcomes. Imagine such an investigation into the Trump International Hotel’s dealings with foreign dignitaries, and the potential impact of revelations about financial improprieties.

Second, the House should be strategic about who it subpoenas. The force of executive privilege claims weakens considerably when the person asserting it is not an official or a former official. For many of the scandals surrounding the president and his Cabinet, there are an array of private actors, including former campaign staff and the financial intermediaries to the Trump family, who could provide important information about the underlying scandals. Such people can be compelled to testify and provide documents within quite wide bounds.

The outgoing House and the Senate have employed this strategy tenaciously—and perhaps tendentiously—and there is no reason why the House now cannot make real progress following the same path.

Third, the House should think big and focus not just on nailing down specific facts, but on creating a common basis for public debate. Investigations aren’t only useful for uncovering criminal wrongdoing or other administration scandals. They can establish facts. In an era when Americans increasingly do not share common perceptions of reality, Congress can play an important role in making persuasively and comprehensively sourced findings. These in turn can influence public discourse at a time when the press is, quite literally, under attack.

There are no end of such investigations to be pursued. Our favorite would focus on debunking misleading claims about the correlations between immigration and crime, and on casting a light on the tremendous human cost of family separation at the border. But the key point is that there are an embarrassment of such platforms that need not create perilous confrontations over executive privilege.

Much about the next two years is uncertain. One thing, though, we think is already clear given the cavalcade of events after the midterm: The legal powers that the new House majority possesses are more fragile, and more vulnerable to backlash, than many believe. If those powers are to be exercised in ways that benefit our democracy and the rule of law—and not just narrow partisan ends—wisdom and caution will have to be the watchwords of the day.