Representative James Comer (R-KY) was celebrating as midterm election results rolled in this November—he had received 74.8 percent of the vote in his Kentucky district, and his party was on track to clinch a thin House majority. However, even after months on the campaign trail, Comer was not content to rest on his laurels for the night. Just hours after his own race was called, Comer—a top candidate to chair the House Oversight Committee—mailed a letter to the Treasury Department demanding it release suspicious bank activity reports pertaining to President Joe Biden’s son, Hunter Biden. His goal? Publicly humiliate Hunter and Joe Biden through a congressional investigation.
The Hunter Biden scandal was born in April 2019 when he allegedly dropped a laptop off at a repair shop in Wilmington, Delaware. Nobody ever returned to the shop to pick it up, and a few months later the New York Post published a story based on materials found on the laptop alleging that Joe and Hunter Biden had engaged in corrupt financial activities in Ukraine. Wasting no time, Comer and his fellow Republican representatives began scrutinizing Hunter Biden’s financial activity, claiming to have acquired more than 1,000 pages of incriminating evidence. Despite the claims of the GOP, independent fact checkers have consistently written that the laptop did not actually uncover any evidence of illegal activity committed by Joe or Hunter Biden. Their attempts were seemingly in reaction to the recent subpoena of former President Trump’s accounting firm, which ultimately led to the Supreme Court case Trump v Mazars LLC.
With history as a guide, Comer and his Republican colleagues are well aware that conducting a congressional investigation—rather than a more discreet Department of Justice investigation—will generate tremendous damage to the Biden family’s reputation. Congressional investigations are highly publicized events that garner national attention, and over time, legislators have learned to wield them as weapons to attack members of the opposing party. This practice has corrupted a tool itself designed to prevent corruption, weakening our democracy’s ability to conduct nonpartisan investigations into misconduct. In order to restore congressional investigations to their original use—to investigate corruption at the highest levels of government—congressional leaders must put aside politics and take action to reform the process.
The partisan bickering surrounding the legitimacy of the January 6th Committee—a bipartisan (but largely Democratic) congressional investigation charged with determining the root causes of the storming of the US Capitol—is a clear symptom of a process strangled by polarization. Rather than participating in the select commission, which was initially designed to be composed of eight Democrats and five Republicans, then-Minority Leader Kevin McCarthy attempted to play hardball, calling the investigation a “charade” and refusing to allow GOP involvement. House Republicans backed their leader’s decision: Representative Elis Stefanik said that the commision is “about punishing Nancy Pelosi’s political opponent” and Representative Mo Brooks referred to it as a “Partisan Witch Hunt Committee.” With this decision, McCarthy locked members of the House Republican Conference into a weak stance on the severity of the January 6th insurrection. He tasked them with deciding which is more important: their allegiance to the Republican party or their desire to protect American democracy.
Opponents of Trump, too, are far from blameless in the erosion of integrity in congressional investigations. At the time of writing, the January 6th Committee has held nine televised hearings—including two in prime-time—on Donald Trump’s role in the January 6th insurrection. That Representative Liz Cheney (D-WY) pushed the committee to focus its report on Trump—even as over a dozen staffers expressed concern that this singular focus would leave less room to analyze law enforcement’s shortcomings on January 6—suggests that she, too, values congressional investigations as a political tool. Democrats in general will certainly also benefit from a committee report that largely implicates Trump. The ability of congressional leaders to distort the purpose of congressional investigations to promote their political agendas in this way speaks to the importance of reforming the process.
The congressional investigation into the Iran-Contra affair in the 1980s is a prime example of a correct use of Congress’s implied power to hold hearings on instances of illegal activity by government officials. It uncovered the details of a secret military operation to recover seven American hostages from an Iranian terrorist group in Lebanon, revealing that top government officials had lied about their activities. The operation involved compelling Israel to trade arms with Iran for the release of hostages, and the funds from the arms sale were then given to the Contras, a group that resisted the socialist Nicaraguan government. This operation violated the Boland Amendment (which explicitly outlawed aiding the Contras for the purpose of overthrowing the Nicaraguan government) but also strict US foreign policy doctrine to never negotiate with designated terrorist organizations. The plan was uncovered by a Lebanese magazine and later published by the New York Times. But had it not been for a congressional investigation, the American people would have been far less informed about just how involved former president Ronald Reagan and high-ranking members of his administration were in the operation. Although not all of the details were proven and much remains shrouded in mystery, the scandal marred public perception of him. Democrats are currently using this incident to guide them in an attempt to link Trump to the perpetration of the insurrection on the Capitol.
The guidelines outlined in the Trump v. Mazars Supreme Court case—where the Court ruled that in order to issue a subpoena, four crucial questions on its intended purpose must be sufficiently answered—provide a foundation to the type of reforms necessary to recover the essence of congressional investigations. According to the decision, requiring answers to these questions about the subpoenas’ intended purposes worked to ensure that their issuing would function as a legitimate and nonpartisan process. Congress should take this ruling one step further, installing a multi-pronged test in which members of Congress hoping to spark a congressional investigation must write a report answering to the legislative purpose of their investigation and the reasons why the congressional format is most appropriate to its mission. Importantly, this report would have to be approved by a supermajority on a fully bipartisan committee. Although there is certainly a risk that a bipartisan committee will be unable to compromise and approve necessary investigations, there is reason to hope that establishing a committee with the express purpose of performing this legitimacy test would instill a certain degree of impartiality and patriotism in its members.
Hunter Biden will not be the last subject of a politically-motivated use of Congress’ investigatory powers. After a rich history of mostly positive advances in legislative function, two consecutive examples of the attempted abuse of congressional investigations seen with Hunter Biden and Trump signify the failure of congressional investigations to function in the modern political climate due to the incredible growth of polarization. With the Republican party holding a thin majority in the House and lacking control in the Senate and the Executive Branch, the House’s ability to conduct investigations is one of the few partisan weapons that Republicans currently possess. As such, the integrity of an important congressional process is at an even higher risk of abuse. Implementing prerequisites for opening investigations would shield the congressional investigation process from the political agendas of two warring parties, helping to restore the process’s integrity.
[Editor’s Note: This article was published in the Fall 2022 issue of the BPR magazine.]