Changing the Rules for Congressional Investigations

The United States Constitution mandates that the Congress meet in regular session on January 3 of each year – that becomes the opening date for the new House of Representatives. There is a dust up over whether Rep. Kevin McCarthy (R-CA) will find enough votes in the Republican caucus to be elected. Frankly, the Republicans could do better and I’ll not shed a tear if they turn elsewhere for leadership.

Be that as it may, the new Congress brings a change in party leadership and with it will commence a series of investigations by various House standing and special committees. Premier among those investigations are:

The investigation as to whether President Joe Biden’s son Hunter violated federal law by engaging with foreign governments during Mr. Biden’s time as Vice-President under former President Barack Obama. Those investigations will necessarily entail an examination as to Mr. Biden’s involvement in those transactions and Mr. Obama’s knowledge of those transactions. The end result could be criminal charges against Hunter Biden and impeachment charges against Mr. Biden. It may even involve whether Congress can impeach a former president, Mr. Obama.
The investigation of the Federal Bureau of Investigation’s (FBI) actions during the phony Russian collusion investigation, the Hunter Biden investigation, and the manipulation and suppression of information through collusion with the social media giants including Twitter, Facebook, and Google. This investigation is likely to produce evidence of other illegal activities and corrupt practices by the leadership of the FBI and a much needed full “house cleaning” of the entire Seventh Floor of the FBI, including current Director, Christopher Wray.
The investigation of the current southern border crises and the lack of action by Secretary of Homeland Security Nicholas Myorkas, including whether Mr. Myorkas should be impeached. Hopefully, the committee will also take a hard look at the current immigration laws and make the necessary recommendations as to actions that may be taken under the current law and changes that can be made to stem the tide of illegal immigrants surging into the United States through an open border.

There will be other investigations, including a hard look at the origins of the CORONA-19 virus and the action of both Mr. Biden’s and former President Donald Trump’s administrations in combating the virus. In particular they will be looking at the Center for Disease Control and Anthony Fauci* of the National Institute of Allergy and Infectious Disease. As a reminder Mr. Fauci retired prior to the Republicans taking control of the House in part to avoid access to his files and correspondence.

Now to the meat of this article. When I note there will be congressional investigations, I say that like a person getting his first whiff of hydrogen sulfide (the rotten eggs smell.) For the past decades congressional investigations reek of partisan posturing and politics and are designed mostly to garner free publicity for the members engaged and/or to smear political opponents. Nothing ever comes of them and even in the instances whether the Democrats sought to impeach President Donald Trump, every constitutional expert not working for or owing their income to the federal government would tell you that those results were unintelligible press releases that fell far short of meeting constitutional standards for impeachment. To suggest that these are real investigations and/or hearings is akin to believing you can pick up dog poop by the clean end. Even during the Watergate hearings the process yielded to the members of Congress and not a single experienced cross-examiner stood amongst them.

A July 13, 1973 article by Alfred Julien in the New York Times regarding the then pending Watergate proceedings to impeach then President Richard Nixon noted:

“The public is obsessed by the television coverage of the Watergate hearings. It considers the questioning of witnesses to be cross‐examination. Indeed, the members of the Select Committee have occasionally referred to their examinations of witnesses, present and future, as ‘cross‐examination.’”

“Thus far, the only thing that approaches cross‐examination is the keen‐eyed camera itself. No experienced trial lawyer would classify examinations by the Senators or their counsel as cross‐examination.”

“A true cross‐examiner abrades, forces and challenges a witness with pointed, limiting questions. It is inconceivable that a witness such as John Dean should have been permitted to use each question as a springboard to say what he pleased within or without the ambit of the question. But Dean did that for four days.

“The point of all this is not that Dean as a witness could not be credited, or that adequate examining could have produced better information; the trouble is that an experienced listener does not see Dean exposed to the soundest test that has ever been devised to reach for truth: adequate cross‐examination.”

Nothing has changed.

As a former practicing lawyer I will attest to the difficulty of cross-examination. I never considered myself to be particularly good at cross-examination – mostly because I was busy thinking about the next question instead of listening closely to the response to the pending question. Over my professional life I have known very successful trial lawyers who made their mark mostly by virtue of the oratorical skills and less by their skills as a cross-examiner. I have also known some extraordinary skilled cross-examiners who were able to bring forth all of the relevant evidence by listening closely and exploring the vagaries, contradictions, and parsing by witnesses. Judges would often become irritated at the slowness of the trial pace because of thorough cross-examination but these lawyers never left a critical piece of evidence undisclosed. In the end, they were able to then re-assemble the pieces into a cogent, irrefutable argument that could not only pass scrutiny at the trial lever but was virtually bullet-proof at the appellate level.

But none of that is happening in Congress. Mostly because the multitude of lawyers who populate the membership of Congress are not skilled trial attorneys. Many worked in positions of government where the power of their office substituted for the thoroughness of their work. Even those who worked as prosecuting attorneys used the art of deal making to avoid their weakness as trial lawyers – a prime example is Vice-president Kalamata Harris (D) who rode the title of her offices to the vice-presidency and who we now see cannot put together a cogent sentence in response to relatively easy questions from a supportive legacy media. Others are like Oregon’s Sen. Ron Wyden (D) who graduated from law school but failed the bar exam seven times and who has never practiced law a day in his life let alone developed the skills to interrogate a witness. Even as chairman of the Senate Finance Committee, Mr. Wyden’s examinations are read from questions prepared by his staff – with no follow up. (Perhaps he should be given the opportunity to demonstrate his skills if a prosecutor would indict he and his wife for fraud relating to the Payroll Protection Plan from which they were rewarded even after firing the very people for whom they collected succor from the government.)

Unfortunately, Ms. Harris and Mr. Wyden represent the limited skills of the overwhelming majority of members from both parties. But that isn’t the end of the institutional limitations on the ability of Congress to get to the heart of the matter.

These congressional hearings are set to afford each political party proportional time allocated amongst its members on the committee. Congress only meets three days per week and committee work tends to follow this same time restraint. The length of each committee session is limited and the time alloted to each member is based upon the total time allocated for the session. There is no set number of members on each committee but using Judiciary, Intelligence and Foreign Relations committees (three of the most important committees) as a marker it is safe to assume that the committees considering the matters referenced above will have between twenty and thirty members. The session time constraints divided amongst so many members means that each gets ten to twenty minutes for examination. They use that time to read speeches which indicated that they have predetermined the results without regard to evidence and to read questions prepared by their staffs. Sometimes it is painful to watch as members labor over proper names, lengthy words and foreign concepts. In some instances we have members mugging for the cameras and even winking at the witnesses with a thumbs up. All in all its disgraceful but it is allowed so that all the dukes and duchesses of Congress can preen before the cameras. But the result is even more devastating. No one member can examine a thought or issue to its conclusion – they are cut off – and then unrelated questioning is picked up by the next member. It is a disjointed free-for-all punctuated by intensely partisan bickering and posturing. The mere look on the faces of the witnesses – confusion, dismay, unintended humor, and frustration – tells all there is to know about these ineffective hearings. In many instances if you are not confused going in you certainly will be after listening to many of these unintelligible members stumble through their turns.

But all of that could change with a simple amendment to the House rules. Allow the chairman and ranking member of certain major committees to hire special counsel for the purpose of conducting examination and cross-examination of witnesses. Let the members of the committee sit in a position much like a jury to absorb all of the information thoroughly and logically presented. At the conclusion of the examination and cross-examination permit the members to ask points of clarification. In the end, the members of the committees retain their rights to make the final decision as to the course the committee recommends. All they give up is the right to posture, preen and showboat.

But that may be too much to ask of the barely able on behalf of the citizens of America.

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The first series of questions by a competent interrogator should relate to the patents the bear the name of Mr. Fauci as the primary or participating author and what, if any financial benefits are derived from that relationship. You don’t have to own a patent to make money off of it – many patents are held by the employer but the employee participating is paid a “royalty.”

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