Rule of Law

With Passage of COVID-19 Relief Package, Vigorous Congressional Oversight Will Be Key

Late last month, Congress passed a huge relief package to try to strengthen the economy as the nation continues to fight the global COVID-19 pandemic.  As part of this legislation, the Treasury Department will have significant discretion to determine who does (and does not) get money.  Even under the best of circumstances, this sort of discretion would warrant serious oversight—and the Trump Administration’s repeated displays of corruption and ineptitude make clear that these circumstances are hardly the best ones.  Congress has the power to engage in that oversight, but if this Administration’s history of unprecedented obstruction of oversight continues, the courts will have a critical role to play in upholding the oversight that is a critical component of our nation’s system of checks and balances.  The courts should be ready to provide that help – and provide it quickly.

Congress’s $2 trillion relief legislation is the largest aid package in modern American history.  As part of the package, eligible Americans will receive a one-time payment of $1,200 to offset the financial challenges of COVID-19.  In addition, the law expands unemployment benefits, paid family leave, and paid sick leave, allows forbearance on federally backed mortgage loans, and halts required payments for student loans.  The law also gives the Department of the Treasury, led by Treasury Secretary Steven Mnuchin, broad discretion over “how to run a nearly $500 billion funding program, in which money can go to businesses, cities and states.”

That’s a lot of discretion to give to an Administration in which self-dealing and corruption are disturbingly common.  Indeed, while the President’s efforts to use the presidency to enrich himself are well-known, Mnuchin too has been implicated in numerous scandals, including selling part of his stake in a film production company in violation of federal ethics rules, failing to disclose $100 million in assets to the Senate Finance Committee, and attempting to protect the President with regard to the Ukraine scandal and President Trump’s tax returns.

Significantly, Congress itself recognized how critical oversight of the Secretary’s exercise of this discretion would be, and included oversight provisions in the relief package to hold the Treasury Department accountable.  For example, the law provides for the establishment of a congressional oversight commission, which is required to submit reports to Congress about how the Secretary is using his authority and the impact and effectiveness of loans, loan guarantees, and investments made to benefit taxpayers.  In addition, the law establishes a new “Special Inspector General for Pandemic Recovery” to investigate loan decisions made by Mnuchin and requires the inspector general to let Congress know if he or she is “unreasonably refused or not provided” the requested information or assistance.

But President Trump has already indicated that his Administration should not be expected to cooperate fully with these oversight provisions.  In a signing statement, President Trump said: “I do not understand, and my Administration will not treat, this provision as permitting the [inspector general] to issue reports to the Congress without the presidential supervision required.”

And late last Friday, the President announced that he plans to name as the new Special Inspector General someone who is currently serving in the White House Counsel’s Office.  The move hardly inspires confidence that this new Inspector General will have the independence from the White House that is warranted.

These indications of White House resistance to vigorous oversight are not surprising. hardly surprising Over the past three years this President and his administration have engaged in what the-late Representative Elijah Cummings described as an “unprecedented level of stonewalling, delay and obstruction” with respect to congressional oversight requests.  Among many other things, he has sued to try to prevent his accounting firms from complying with valid congressional subpoenas, and Secretary Mnuchin has refused to comply with a congressional request for the President’s taxes.

And that means that it will almost certainly not be enough for Congress to simply subpoena the right witnesses and documents—it will need to be able to enforce those oversight requests.  And unless we want to see Congress trying to enforce them on its own—for example, arresting individuals who won’t comply—that is where the courts come in.

If the Administration refuses to comply with a subpoena, Congress—or one of its houses—should be able to go to court to seek judicial enforcement of those subpoenas.  A three-judge panel of the D.C. Circuit recently held that the House did not have standing to sue to enforce its subpoena for former White House Counsel’s Don McGahn’s testimony.  Fortunately, the full D.C. Circuit has since vacated that decision and will be holding oral argument in this case later this month.  This relief package—and the need for oversight of the Administration’s implementation of it—underscores the importance of that case.  If Congress cannot go to court to enforce its subpoenas, it will meaningfully undermine Congress’s ability to get the information that it needs to do its job.

And the courts should be ready to move quickly to ensure that Congress can get that information in a timely manner.  After all, in these congressional oversight cases, justice delayed can be justice denied.  Congressional subpoenas expire at the end of a congressional session, and Congress needs the information it is seeking in time to act on it.

Some of the congressional oversight cases currently pending in the courts have not moved particularly quickly.  For example, House committees issued subpoenas to Trump’s financial accounting firm Mazars USA, LLP and Deutsche Bank in April 2019, and now almost a year later, we’re still awaiting final resolution of the litigation involving these subpoenas.

But there’s no reason the wheels of justice need to move so slowly.  For example, when the November 2000 presidential election resulted in litigation, the Supreme Court resolved those cases by Christmas of that year.  That was an unusual situation, to be sure, but it demonstrates that the courts can move quickly when there’s a real need.  And there may well be such a need in the weeks and months to come.

In sum, vigorous congressional oversight of the Trump Administration’s implementation of the new relief package is going to be critical.  Fortunately, Congress has the authority to engage in that oversight.  But if this Administration refuses to cooperate, the courts should do their part as well.  Our system of checks and balances depends on it, and given the significant discretion just given to this Administration to hold up our economy in this moment of crisis, so too might our country’s economic fortunes.