| Democrats have promised an aggressive oversight agenda if they retake the House of Representatives in the midterm elections, and they have a long and varied list of potential targets — from the Trump family’s extraordinary accumulation of wealth to the Justice Department’s handling of the Epstein files. |
| This much-anticipated effort will be easier said than done. Democrats are likely to confront some challenging issues, both in terms of selecting, structuring, and prioritizing their inquiries, and in dealing with a White House that is notoriously hostile to congressional oversight. |
| To discuss these issues, I spoke with Tim Heaphy, who served as chief investigative counsel for one of the most effective and consequential congressional investigations in American history — the Jan. 6 investigation in the House. We discussed some of the practical issues that Democrats will face, including the abundance of potential targets, limited committee resources, and a White House that is likely to make things as difficult as possible. |
| “I think there’s a risk that you’ll be a mile wide and an inch deep,” Heaphy told me when I asked him how he would approach the oversight push. “My hope is that the specific patterns of corruption that they focus on are connected to real Americans’ problems,” he later added. |
| Heaphy also tied these issues to broader and longer-term questions of political reform in the US, emphasizing the opportunity for Congress to reclaim its standing with the American public. |
| “I think what we’re seeing in America is a cynicism about government — Congress in particular — and if we just incessantly look back at these historical patterns without connecting them to real Americans’ problems,” Heaphy said, “I feel like we’re only going to exacerbate that cynicism.” |
| This interview has been edited for length and clarity. |
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| Let’s suppose you have the task of setting an oversight agenda for House Democrats if they retake Congress. Where do you begin? |
| Well, I’ve heard a couple of the new chairmen themselves answer that question directly. And what they have both said — and this is Congressman [Jamie] Raskin, who is the likely chair of Judiciary, and Congressman [Robert] Garcia, the likely chair of Oversight — is that their agendas in those two committees will primarily be on Trump corruption: Trump and Trump family corruption. |
| They see an abundance of distinct patterns of corruption that they want to develop. They believe, and I think, that there’s a factual basis to this — that we’ve seen so many things over the last couple of years where the president himself, the president’s family, the entities associated with his business interests have directly benefited from some decisions and actions of the government. |
| I think you’ll see both Judiciary and Oversight pretty aggressively pursue those patterns. Now, the challenge there is that there’s so much of that that they’re going to have to prioritize. |
| I think there’s a risk that you’ll be a mile wide and an inch deep, right? What I’m hopeful is that they will pick a couple of things — in a coordinated fashion — that are particularly egregious and potentially indicative of broader patterns. |
| Let’s say, for example, the pardon issue. There’s been a lot of reporting about people who are Trump supporters and who pay a lot of money to lawyers or others with connections to the president and people close to him who have been getting pardons. |
| I could see that being a very robust area of inquiry — some of those individuals that have been pardoned, some of those people that have facilitated the pardon, some of the people who received those payments. |
| All of that could be important because it would both look backward at what happened, but it could potentially inform efforts to reform the pardon process and the pardon power of the president in the Constitution. You could see some congressional efforts to try to put some process or guardrails around that — questionable how much they can do, given that it’s in the Constitution. |
| The point here is some backward-looking stuff on corruption, but potentially informing some discussion of good-government-type reforms going forward. |
| Do you have a principle in mind that you bring to bear? |
| I can think of a few off the top of my head. One is, we should try to maximize the likelihood of future criminal prosecutions against this administration. That’s a theoretical principle. Others might be: identify the most egregious misconduct you can find, focus on the most vulnerable people, things like that. |
| When you have such an enormous mass of issues in front of you, do you try to bring to bear some sort of higher-level principles? |
| | | “It’s just not fair that certain people, because of fame and power and proximity to the White House, get differential treatment from others” |
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| My advice to my former client Congressman Raskin and Congressman Garcia is that I think the most effective oversight on the corruption issue will be on how these patterns of corruption have directly negatively impacted real people. |
| It’s just not fair that certain people, because of fame and power and proximity to the White House, get differential treatment from others. |
| If pardon decisions are being made not on the merits of the individual himself or herself and the facts and circumstances of the case, but rather on proximity to power, that’s not just about corruption. |
| That’s about injustice and something that’s unfair. My hope is that the specific patterns of corruption that they focus on are connected to real Americans’ problems. Like the Venezuelan oil deal or the Russian diesel — that affects people’s pocketbooks, right? |
| The whole issue of energy, of gas prices, diesel prices — it’s the connection of the corruption. The theme being: “Hey, this administration is profiting at your expense, you Americans.” |
| When you say they should coordinate and divide, what does that mean on a day-to-day basis? |
| I think the average American has a very loose, if any, grasp on how the committees function and the resources that are available to them, which are quite limited in the ordinary course. The committees have been hiring, but still, the budgetary and procedural constraints are significant. |
| That’s a really insightful question because congressional committees have limited staff, have limited resources. It’s essential, if they — writ large, meaning the new Democratic majority — are going to be maximally effective, that they’re not wasting resources by conducting duplicative investigations. |
| It’ll be crucial for the speaker and majority leader, whoever is in those leadership roles, to be thoughtfully working with the chairs to decide who is going to focus on what. |
| These committees have overlapping jurisdiction. A particular issue might have relevance to the Judiciary Committee, the Oversight Committee, and the Homeland Security Committee. If you just leave this to the discretion of the chairs, absent coordination, you risk too much attention on certain things — and overlapping, duplicative investigations — and not enough attention on other things. |
| I think there’s a lot of discussion about this now, anticipating a takeover, but I hope that that ultimately leads to some thoughtful assignment of issues to various committees to take ownership of and investigate. |
| It is Congress, so it’s inherently messy, but I’ll give you one example of a potentially fraught investigative issue — and please feel free to push back on this as aggressively as you like. |
| Jeffrey Epstein. I am of the view that the Epstein law should not have been passed, and I think the Democrats should not double down on this investigation if Robert Garcia takes over on the Oversight Committee. But he has been very insistent on this, including in an interview with me, saying that he views Epstein as a critical issue, wants to have public hearings, and wants to subpoena people who have already come in for voluntary interviews. |
| I’m curious: What do you make of that one? |
| There are two separate thoughts in response to your question about the Epstein files. One, there’s a good example of how there was no centralized, coordinated approach, and a lot of different people thinking that they wanted to pursue various pieces of that. |
| These things all run the risk of, “Well, I want my piece of it,” and, “We’ll let them take that piece of it,” or there isn’t any coordination and we fall into the efficiency problem that we talked about before. |
| The second issue I have is that I feel like Americans are hungry for real solutions to real problems. I don’t mean to minimize what happened with respect to the Epstein victims. It is awful and egregious, but it’s a step removed, arguably, from affordability and gun violence and climate change and immigration. |
| I think what we’re seeing in America is a cynicism about government — Congress in particular — and if we just incessantly look back at these historical patterns without connecting them to real Americans’ problems, I feel like we’re only going to exacerbate that cynicism. |
| My hope is that Democrats get that, and that they’re not going to ignore Epstein or the corruption, but again, they’re going to tie it to: “Here’s how it’s affecting you, and here are some solutions to real problems that you out there, our constituents, are struggling with.” |
| Absent that, I feel like they’re going to miss an opportunity to lead like Americans want government to work. |
| If there’s a Democratic Congress, then there’s an opportunity to articulate an agenda. And I hope that they don’t squander that by getting stuck in the rope-a-dope, talking about Trump all the time and how terrible he is. |
| You mentioned the pardon issue, which is a fundamental matter of fairness. Are there other issues that have particularly resonated with you — or things that you would really want to roll up your sleeves and dig in on if you were back there? |
| This is maybe a little bit more in the weeds from most Americans’ experience, but the deregulation issue and the favoring of business interests in which the president’s invested — crypto being the biggest example, essentially, and prediction markets. |
| Leaving them unregulated, or diminishing regulation or oversight over these markets, has led to the president and his family and his entities making astronomical amounts of money. |
| The connection between the regulation and the profit is unseemly to me. There’s another one where it’s easy to point out the corruption, but connect it to: “Hey, you don’t have that opportunity when you are investing in the stock market or your retirement fund is at issue.” |
| I think there’s real potential there. |
| | | “The military and federal prosecutors and our Homeland Security apparatus ought to be making decisions based on the facts and the law, not on anybody’s political agenda” |
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| The other big issue for me — and this is because of my experience as a Department of Justice lawyer — is the executive overreach and the attempt to use historically independent, nonpartisan entities for partisan goals: the Defense Department, the Justice Department, Homeland Security. |
| These are civil service entities that have traditionally — Republican- or Democratic-led — operated primarily for the common good. |
| The military and federal prosecutors and our Homeland Security apparatus ought to be making decisions based on the facts and the law, not on anybody’s political agenda. |
| The fact that that is not happening now — political agendas are influencing — that’s really disheartening to me. There’s a huge consequence for real Americans when we go down that path. |
| We are likely to see a distinction between investigations that run through the government and investigations that can build a record with relatively limited cooperation, if any, from the administration. |
| For any kind of investigation into the government itself, I think the Trump administration is going to make life very, very difficult for Congress. That doesn’t mean they shouldn’t do it, but it does mean that if you’re sitting in Congress and you’re trying to develop an investigative plan, that is something you need to be very attentive to. |
| But if, for example, you look at the deals that the White House struck with large law firms last year, that’s something that I think is important as a lawyer, but it also has the advantage of being a set of facts where most of the witnesses are external, except of course for the White House itself. As in any kind of bribery investigation, you can theoretically get all of the facts from the person who did the bribing, depending on their testimony and the facts available to them. |
| That’s just one example, but how would you navigate some of the substantive and procedural obstacles that are likely to come up with this administration? |
| I fully agree with the premise of your question, which is that the administration is generally hostile to congressional oversight and will resist and invoke privilege and make it difficult to get documents and testimony directly from executive branch officials. |
| We’ve seen that before, both in the first Trump administration and when they were out of power — they resisted our investigation, for example, by claiming, without any real factual support, executive privilege, other privileges. |
| Congress also, frankly, doesn’t have a lot of effective, immediate tools at its disposal to push through those assertions. |
| If the White House says, “We’re not going to comply with the subpoena because we’re invoking executive privilege,” or an individual says that, then Congress effectively has to go to court and litigate that, and it’s a lengthy process — as opposed to a criminal grand jury, for example. |
| A special counsel could immediately push through a privilege assertion by taking it to the chief judge of the district, and there would be immediate litigation. |
| For all those reasons, they will be looking for third parties who have some information about executive action, like companies or individuals that have had interactions with those executive officials or executive agencies. They are not controlled by the White House. |
| I have heard that it could be that this Department of Justice takes a very, very broad view of executive privilege and tries to essentially quash or intervene in third-party subpoenas by saying, “Look, this information you’re seeking, even though it’s from a private entity, implicates our privilege.” |
| We’re going to see some litigation over, I predict, the contours of executive privilege, but that takes time. Again, things may not move as quickly because of these assertions and the need for resolution in front of judges. |
| Should they even bother subpoenaing the administration? The administration can always voluntarily comply with any request. |
| Yes, I think they should bother, because I do think the subpoena itself is important and has an educational benefit. |
| I think getting the scope of these privileges adjudicated is helpful long term. And look, it puts the onus politically on the administration to justify the noncompliance. |
| There’s political damage, potentially, in refusing to cooperate with valid congressional oversight. I think the new Democratic leadership, assuming that they win — I think they’re mindful of these obstructions, but they are going to issue the subpoenas regardless and force the privilege assertions, just because I think they believe it has political damage. |
| One of the things about this group of people — the Trump world, both inside and outside the government — that I learned through your work in the Jan. 6 investigation and what became public, was the insidious nature of the relationships among the lawyers. There were tactics involving joint defense and common defense arrangements that seemed highly unusual. |
| Are there things that you wish you had known when you came into the committee, or things that surprised you about the way lawyers in this space who were adverse to you operated — things that congressional investigators should be mindful of that might be new to them? |
| It’s not improper for lawyers who have clients with common interests to enter into common defense agreements or joint defense agreements and share information within the privilege. |
| But there are ethical restrictions: The lawyer who is being paid by a third party has a duty of loyalty only to the client. |
| There were times in our investigation where it seemed as if the lawyers who were paid by the Save America PAC were more focused on the interest of the Save America PAC than they were on their individual client. |
| That was reported to us by individual witnesses. There were also times when the lawyers were not getting client approval to share certain information. |
| Again, nothing wrong with coordination among lawyers, but the client makes the decision. The lawyer has to act in the interest of the client, not the third-party payer, and only the client can authorize privileged communication within those agreements. |
| Those are ethical restrictions that bind lawyers. Now, whether they follow those — I’d like to assume the best, that they will — but we have had anecdotal evidence when we were doing our oversight work that those rules were not always observed. |
| People are going to be interested in criminal cases in the future. There’s a pardon issue, there’s a Trump immunity issue, on and on and on, but let’s just bracket all of that. |
| You clearly had a very focused way of structuring your investigation and proceeding with your colleagues in a way that was designed to maximize the likelihood that the information you were gathering could be used in a criminal investigation. |
| If this oversight effort reveals facts that might be relevant in a criminal investigation in the future, are there any sorts of best practices that you developed during the Jan. 6 hearings? |
| It was clear to us as we got into the investigation that there was evidence of criminal conduct. We had no authority to do anything with that other than refer it to the Justice Department. |
| That was pretty evident, pretty early, that there was a good chance that the evidence we were developing could potentially give rise to a criminal case that we would ultimately deliver to DOJ for independent decision-making. |
| Now, looking forward, I do think similarly that some of these committees, as they investigate the patterns of corruption we’ve talked about, may similarly develop evidence that could give rise to criminal charges. |
| Congress doesn’t make any charges. I think there’s been some discussion about state and local authorities potentially picking up some information that is developed by Congress. There are state statutes that could be invoked, criminal or civil. |
| I think you also have to focus, based on the immunity decision, on separating official conduct versus unofficial conduct. The Supreme Court didn’t say you can’t prosecute a former president for anything. |
| It said you can’t prosecute a current or former president for official acts undertaken while in office. But they explicitly contemplated that some things that the president does while he or she is president are not official. |
| I believe that the special counsel’s indictment would have gone forward even after the immunity decision because so much of the conduct at issue in the election interference case was not conduct done by the president acting as president, but rather acting as a candidate for office. |
| So you could see attention paid to: Hey, what’s an official act, versus what is the president doing with respect to his family business or other things that are pretty clearly outside of the scope of official responsibilities? |
| There is also that footnote in the Trump immunity decision that seems to hold out the possibility that taking a bribe in exchange for a pardon would still be criminal conduct that can be prosecuted by a future Justice Department. |
| I predict that if there are investigations, there will be further litigation over the scope of what’s official conduct. |
| Since the immunity decision and the reelection of the president, the courts haven’t had a chance to dive into where that line exists. |
| It’s not just substantively distinguishing official from unofficial conduct, but the investigators can develop facts that draw that distinction and explain the lack of relationship between legitimate government work and whatever may be under investigation. |
| Yeah, and I don’t think that the new congressional leaders should prioritize, “Let’s go gather evidence of criminal conduct and try to get the president indicted after [the next] election.” |
| If they find evidence of criminal conduct, as they very well may, just based on what we know from the media reporting, they should take that seriously and refer it, and it should be carefully considered, and there could be potential criminal charges. |
| But again, in my view, their goal ought to be: What happened? How does that affect real people’s lives? |
| If that spits out evidence of potential criminal conduct, then that should be referred and pursued by executive officials, not the legislature. |
| You’ve had a very interesting experience with the committee and everything that’s come after it. It’s been a remarkable period in American politics and American law. |
| Looking back on it, what do you make of the legacy of the committee and its significance? |
| I don’t think that our findings have been, will be, or could be seriously rebutted. I think the story that the committee told is corroborated, is accurate, got the core narrative established with verifiable evidence. Despite a lot of effort to rebut it, I haven’t heard any serious rebuttal. |
| But in terms of the process, you ask a good question about legacy. |
| I predict that what you’re going to see more and more in congressional hearings are visual presentations — instead of the old-fashioned witness sitting there answering questions, the use of taped interviews pieced together with documents and video and presented at congressional hearings. |
| | | “I don’t think that our findings have been, will be, or could be seriously rebutted” |
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| I think that that’s persuasive. When I started the Jan. 6 investigation, I read the 9/11 Commission report because I thought that was kind of the gold standard of what we should aspire to do. |
| And if we had just issued a big, lengthy written report, I don’t think it would have been as persuasive, because America is different now than it was then. |
| People are used to shorter, more visually delivered bits of content. I think Congress is on to that. I know that Jamie Raskin and Bennie Thompson and my clients on the committee who will be chairmen appreciate that more than anyone, because they saw it in real time. |
| You could see the way in which Congress conducts hearings and presents information change a little bit, and that filters all the way down to staff and how they gather information. |
| We made it essentially a precondition that all our interviews would be videotaped. The transcript remains the official record, but the videotape we used, obviously, in hearings. |
| I think you’re going to see more stuff like that — different ways that Congress tries to gather [information] and then subsequently present the information that they gather. |
| I just think that’s what Americans now expect, in part because of the presentation that we put forth. |
| I had not thought about that, but that sounds exactly correct — and advisable. |
| Before we wrap up, is there anything you want to mention that we haven’t covered? |
| The only other looming issue is obviously presidential politics. We’re talking about the House, and I’m not sure if any of the new chairmen will be angling themselves for higher office, but that often does impact the agenda and the division of responsibility in terms of who does what. |
| My hope is that they keep their eye on the ball and move forward in a target-rich environment to work together and coordinate and try to keep the political aspiration out of it. But I worry a little bit about that. |
| I think that ought to be secondary to gathering the facts and doing effective oversight. |
