As Democrats delivered their victory speeches late on election night, it was clear that they had made history, winning the midterms by a landslide larger than any since the Watergate era. Amid such an unmistakable repudiation of Donald Trump, hopeful liberals around the world indulged fantasies of belated justice—a level of accountability and a check on presidential lawlessness that could ultimately result in the permanent disgrace of the most corrupt president in American history.
The outcome of this election was thrilling. Democrats are set to control over 250 House seats and at least 54 seats in the Senate. But we need to face something soberly. Once the celebrations stop and the new year begins, we all know exactly what will happen: Even if the Democrats move aggressively on the accountability front, Trump will order his administration to ignore subpoenas and toss sternly worded letters into the garbage. If Congress refers Trump’s allies for criminal prosecution, his coconspirators who run the Justice Department will erupt in laughter. Trump might even ignore Congress when it tries to cut off the thing that makes all of his corruption possible: money. Yet already, a debate among Democrats over how aggressively to pursue Trump, and fight his obstructive tactics, has spilled into the open.
To put the question another way: What deeper mindset will Democrats take into these battles? Will they approach the next year as if we’re still locked in a deep crisis—as if the constitutional order still hangs in the balance, requiring maximal exercises of power? Or will they enter with a more lax posture, as though their midterm victory has brought things more or less under control, and the crisis has largely been averted?
“We’ll still be facing a lawless president.... And that will require complete pushback.” –Senator Chris Van Hollen of Maryland
But, unfortunately, not all Democrats see things in these crisis-like terms. And it’s unclear whether the ones who do will be willing to act accordingly, or will be able to persuade their reluctant colleagues to rise to the moment and be sufficiently confrontational.
To obstruct, all Trump has to do is say no. No, we will not cooperate with your investigations. No, we will not prosecute people who defy your subpoenas. No, we will not follow the law.
Every Democrat we spoke to anticipates the very worst from Trump. They expect intense obstruction. Noncompliance with oversight requests and demands. Refusal to be bound by the strings attached to money, which the Constitution entrusts Congress to shell out and control. And a bottomless willingness to drag things out in court, with the undisguised goal of nullifying controversies by tying them up for months or years—perhaps even until this administration is over and the controversies are moot.
In modern practice, Congress has leaned heavily on a standard set of tools for conducting oversight and seeking accountability. Committees request documents and testimony. Aides and members work behind the scenes to understand the often-opaque inner workings of the government. When they hit roadblocks, they demand depositions and further production of evidence. If the administration resists, they issue subpoenas. If officials flout their subpoenas, they can be held in contempt of Congress, at the risk of civil and criminal penalties, including big fines and even arrest and hard prison time.
When those assumptions no longer apply—and they certainly do not apply with Trump—Congress quickly runs out of normal tools to enforce compliance, and the majority has to choose: resign itself to being spat upon, or embrace significantly more aggressive tactics.
“The Democrats in the last two years of the first Trump administration sort of ran up against some of the limits,” Chafetz said. “Now they’re going to run up against those limits even harder.”
How Democrats Can Bring Down the Hammer—If They So Choose
• Inherent contempt, a rarely invoked mechanism that allows Congress to imprison or otherwise penalize people who defy lawful commands.
• The power of the purse, which allows Congress to place conditions on the money it authorizes the government to spend.
That isn’t entirely a sign of weakness. Congress has not invoked its inherent contempt authority in almost 100 years, in part because it’s rarely been necessary, and in part because it’s messy.
But historically, Congress would dispatch its sergeant at arms and other law enforcement officers that he or she might deputize to arrest and detain those witnesses. For obvious reasons, this is thorny: If the witness is a member of the executive branch, with an executive branch security detail, what happens in an armed standoff?
“I have discussed inherent contempt with leadership and some of the oversight committee chairs.”–Representative Ted Lieu, a member of the incoming House Democratic leadership teamImpeachment, by contrast, should be much less controversial, and can be very effective at speeding up investigations and prying information loose. That’s in part because courts will be more deferential to an impeachment inquiry than to congressional committees conducting normal oversight. Witnesses also feel especially compelled to cooperate and are uniquely protected if they do. In 2019, investigators in the Democratic-controlled House were mostly stymied—until Trump’s first impeachment, at which point administration officials came out of the woodwork to testify in astounding detail about his corrupt scheme to pressure Ukraine to subvert the 2020 election.
But to do all this, Democrats would have to be overwhelmingly united. And as of this writing, they plainly are not. As Senator Tammy Duckworth of Illinois recently pleaded: “Don’t be impeaching anybody. Let’s just get back to work, and maybe we can come to compromises.”
“I know [impeachment proceedings] will be very difficult for a lot of my colleagues. But Trump has simply become so dangerous that it needs to be done.”–Representative Adam Smith, a moderate from Washington state who’s the incoming Armed Services Committee chairWhich leaves the spending power. If inherent contempt and impeachment remain off the table, congressional budget authority will be Democrats’ only real power tool, and they’ll have to wield it aggressively: no money for agencies that obstruct investigations. No money for key Justice Department offices so long as they’re withholding the Epstein files or corruptly prosecuting Trump critics. No money for the illegal war against Iran or illegal executions of supposed drug smugglers on the high seas. And so on.
Last year, when Obamacare subsidies were on the verge of expiring, Democrats withheld their votes to fund the government, contingent on the demand that Congress extend those tax credits. Republicans refused, and appropriations lapsed. The government furloughed federal workers across agencies, impacting everything from air travel to IRS assistance to environmental cleanup projects. And here’s the kicker: Even though the Democrats could fairly be said to have caused the shutdown in the immediate sense, Republicans shouldered more of the blame. Democrats were wielding power and doing so effectively. Then, abruptly, a bloc of Senate Democrats decided they’d made their point. They folded a winning hand, and the shutdown ended.
The first test of Democratic mettle will arrive much more quickly than you might think. In December, almost a full month before Democrats reclaim power, the current operating budget for the federal government will expire. Democrats could insist on defunding the Iran war straight away. But at the very least, they should agree to only a very brief extension of funding. This would prevent the government from shutting down over the holidays, which would surely be unpopular. But more to the point, a short extension would allow Democrats to preserve their leverage over Trump, because the budget would have to be renegotiated in early 2027. Trump and Republicans will want a longer-term extension for precisely this reason. And that could escalate into a standoff.
“My view,” Van Hollen added, “is either Republicans work with us to begin to make changes that we think are necessary, or, yes, we have a short-term [budget] punting it into the beginning of next year.”
“I hope we will use our appropriations power as a hammer against any further political persecutions of American citizens.”–Jamie Raskin, incoming chair of the Judiciary Committee
Some Democrats do appear prepared to refuse funding, even if it results in protracted standoffs, to accomplish things like thwarting Trump’s corrupt prosecutions. “I hope we will use our appropriations power as a hammer against any further illegitimate political persecutions of American citizens for their political speech,” Jamie Raskin, incoming chair of the Judiciary Committee, told us, stressing he will make this case to appropriators.
“We must stop funneling taxpayer dollars into Trump’s agencies that abuse their power and violate Americans’ rights.”–Representative Yassamin Ansari, a member of the Oversight Committee
Murphy, who is an informal leader of a similarly stalwart faction in the Senate, is ready for long struggles, too. He says Democrats should hold up Defense Department spending entirely to force an end to the Iran war. “I think it would be a pretty popular move for us to draw a hard line and say, ‘We are willing to fund the military, but only if this war ends,’” Murphy told us. “It would force Republicans and the administration into spending more time and oxygen defending the war.”
Affordability vs. Accountability: A False Choice
We see another problem lurking in the Democratic mindset. Some Democrats have taken to arguing that the threshold test for the party’s agenda—legislative or oversight—should be a simple one: Does it improve the lives of ordinary people? Yes, or no?
There will quickly come a point when House Democrats must decide whether to take politically difficult stances on things that aren’t obviously connected to the immediate material circumstances of their constituents. If, for instance, Trump orders the DOJ to prosecute more of his critics, and Democrats confront whether to withhold funding from that office to end another outbreak of lawlessness, would that tangibly make ordinary people’s lives better? What about the debate over how to rein in Trump’s mass-deportation regime and his lawless ICE agents? Democrats will want, at a minimum, to draw hard lines against things like ICE’s warrantless searches, ICE’s mask-wearing, and Customs and Border Patrol—which has been responsible for a great deal of brutality—operating in the country’s interior. Some Democrats, at least, hope to use government funding as a lever to force an end to those things. Would that improve ordinary people’s lives, or not?
Party strategists and a subset of commentators will no doubt agree. But Democrats should think hard right now about what such a surrender would look like after millions and millions of voters handed them an array of powers and authorities to check a lawless authoritarian president.
Consider, first, that there’s very little chance Trump will sign legislation that Democrats pass to ease cost-of-living concerns. He has shown no appetite for signing measures that redound to the political benefit of Democrats. And so, practically speaking, if kitchen-table issues crowd out accountability measures, Democrats will be choosing to focus on symbolic advances—cost-of-living legislation that Trump vetoes—over doing things where their power actually can slow or stop Trump.
We also think that, in the minds of voters, when the economy is stagnant and the president is looting the country for personal gain, there is no clear distinction between anti-corruption politics and pocketbook politics. Exposing, ending, and punishing corruption will make economic life in America fairer by definition. And that will place Democrats on the side of the people who play by the rules.
“If we want this government to work for the people, then we have to put an end to corruption and restore the rule of law.”–Virginia Representative James Walkinshaw, a prominent member of the moderate New Democrat caucus
Some Democrats appear to agree with us. “If we want this government to work for the people, then we have to put an end to corruption and restore the rule of law,” Virginia Representative James Walkinshaw, a prominent member of the moderate New Democrat caucus, told us. “I don’t think there’s any conflict between being substantively centrist or pragmatic [and] recognizing that Congress has a responsibility to assert its constitutional role. I don’t think those two things are in tension.”
After all, it was Michael Cohen’s 2019 testimony to Alexandria Ocasio-Cortez, obtained during a standard congressional hearing, that established the basis for New York Attorney General Letitia James’s sprawling lawsuit against the Trump organization.
Aides also expect the pace of whistleblowing to pick up. The protections that a congressional majority can offer will render people “more willing to come forward,” one aide told us, adding that recent conversations she’s had with would-be whistleblowers left her persuaded that “there are a lot of people who have stories to share.” After the country rejected Trump so overwhelmingly, their willingness to speak out is likely to grow.
“In theory, you could have an individual fined on a daily, weekly, or monthly basis for the time that they’re not complying with a subpoena,” Walkinshaw tells us. “We absolutely have to be willing to do that.”
The key nuance here is that this creates a route to direct oversight of Trump’s corruption that he can’t obstruct. These entities can’t simply defy oversight demands without creating serious legal and financial risk for themselves. With Democrats taking power, Trump in decline, and the public clearly arrayed against him, incentives will align for executives to divulge internal communications about their decision to bandwagon with Trump’s corruption.
These entities will plead that they only surrendered to Trump under duress. But caving was optional. Every company and firm and university that held to principle survived—even flourished. As for those that didn’t, to the extent that they want to contend they played ball with Trump’s corrupt schemes only because they felt they had no choice, Democrats should confront them with a new demand: that they show meaningful public support for new anti-corruption legislation to set things right.
As Ocasio-Cortez proved, this can work under careful questioning of cooperative witnesses. But it works by delegating and deferring accountability. The damage Trump can do in the meantime—to immigrants, to alliances, to our constitutional system—will be incalculable.
A Fight Caucus
The House impeached Andrew Johnson for improperly firing a Cabinet official, and while that was controversial, it’s a reminder that impeachment should remain a tool when serious circumstances warrant it. In 1879, the House of Representatives arrested a U.S. envoy to China—an executive branch official—for the comparably small sin of concealing official ledgers, which Congress believed might show evidence of waste or theft. Why should this approach be verboten when Congress has so many more pressing affronts to its authority to beat back?
In the end, we think that Democrats who resist this sort of approach will be susceptible to a combination of factors: public pressure, Trump’s escalating lawlessness, and cajoling from more energetic peers. Leaders who believe we’re still in the midst of crisis, and who feel pained when Democrats shrink from challenges, should prod reluctant colleagues to join them.
A Fight Caucus in the House could do the same. It can demand enforceable concessions from Jeffries, who will want a free and easy path to the speakership. We similarly hope that outside advocacy groups—existing ones, or new ones—will treat constitutional hardball as a litmus test that Democrats must meet, no less than support for abortion rights, universal health care, or environmental protection. They can give each member a Fight Score, and provide direction to Democratic Party primary voters: This candidate was a stalwart fighter for democracy, constitutional governance, and the rule of law. That candidate was not.
Perhaps the best message for hesitant Democrats is to remind them of who Trump is. He is incorrigible. Much as some may want to proceed as if everything’s normal, he will leave them no choice. All they do by resisting confrontation is let him set the terms on which inevitable power struggles unfold.
We are entering a period that will be defined by a paradox. On one hand, Trump will take his abuses of power and assaults on the constitutional order to dangerous new lows. On the other hand, in the eyes of the public—and even in the eyes of many in his own party—he will be seen as a naked and exposed tyrant, an increasingly ludicrous figure who’s passing from the political scene. The best way to resolve this paradox is for Democrats to mount a full-on offensive to save the country. The emergency remains; but the despot’s attempt to cement authoritarian rule has been dealt a potentially fatal setback. Now is the time to bury this national nightmare once and for all, by deploying every last shred of congressional power to that end.
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