Senate Republicans are pouring cold water on the idea that President Biden’s classified documents controversy rises to the level of an impeachable offense, heading off House conservatives looking for revenge after former President Trump’s two trials.
Even before Tuesday’s revelation that about a dozen classified documents had been found at former Vice President Mike Pence’s Indiana home, GOP senators were cool to the idea of impeachment.
“I don’t think you want to get into where it’s a tit for tat, every two years or four years you’re dealing with impeachment proceedings in the House and Senate,” Senate Republican Whip John Thune (S.D.) told The Hill. “There has to be a really good reason, obviously, the constitutional reasons and grounds for that. So we’ll see where it goes.”
Asked whether Biden’s possession of classified documents has the potential to rise to the level of an impeachable offense, Sen. John Cornyn (R-Texas), an adviser to the Senate GOP leadership team, gave a simple answer: “No.”
Many Republicans thought the Democrats’ first impeachment of Trump over delaying military aide to Ukraine was a partisan overreach. But that means they are also wary of doing the same thing now that their party has the House majority.
It’s just one of several tension points emerging between Republicans in the two chambers.
Senate Republicans have mostly ignored chatter in the House about impeaching Biden’s secretary of Homeland Security, Alejandro Mayorkas, or wiping out the tax code and replacing it with a 23 percent to 30 percent national sales tax.
Some Republicans think talk of impeaching Biden will grow in the House, even though GOP senators warn that it’s a bad idea.
House Republicans introduced more than a dozen impeachment resolutions against Biden in the last Congress, and the GOP-controlled House Judiciary Committee has already initiated an investigation of Biden’s handling of classified documents, which could lay the ground for future impeachment proceedings.
Trump has also come under criticism for a separate classified documents controversy, but House Speaker Kevin McCarthy (R-Calif.) in an interview with Fox Business argued that Biden’s handling of classified documents was more egregious because the former Republican president at least secured the classified information he held with padlocks.
“That’s much different than what we’re finding now with President Biden, and I think it is severely going to cause him a great deal of trouble in the future as we get more of the truth,” McCarthy told Fox host Larry Kudlow.
A few Senate Republicans entertain the idea that the classified documents found at Biden’s Delaware home and former Washington, D.C., office would lead to a Senate impeachment trial.
“This actually might be an impeachable offense. If there’s a high crime and misdemeanor standard, which there is, this is the closest thing to one in recent years,” said Sen. Kevin Cramer (R-N.D.). “If the special counsel comes up with anything, realizing [Biden’s] a sitting president, I suppose they could draft up what would become articles of impeachment, depending on what they find.”
Cramer said “I personally hate impeachments” but thinks the standard has changed since House Democrats impeached Trump in 2019 after he held up aid to Ukraine to use as leverage to get Ukrainian President Volodymyr Zelensky to investigate Biden’s family’s business dealings in the country.
Only one Republican senator, Mitt Romney (Utah), voted to convict on an article of impeachment during Trump’s 2020 Senate trial.
Cramer said “Democrats created an impeachment cycle and we may be in that cycle,” calling Trump’s first impeachment “far-fetched and silly.”
He said House Republicans now need to decide whether they want to keep the impeachment bar as low as they believe Democrats set it in 2019 or whether to elevate it to cover only the most serious crimes.
The documents found at Pence’s home would further muddy any attempt to argue that Biden’s possession of classified documents meets the standard of high crimes and misdemeanors.
Romney on Tuesday said it will be hard for House Republicans to credibly push an article of impeachment against Biden for keeping classified documents at his Delaware home after Pence admitted the same transgression.
“I can’t imagine that’s where it’s going to head with so many people in the same arena,” he said.
Some key Senate Republicans, such as Senate Intelligence Committee Vice Chairman Marco Rubio (Fla.), are already on record downplaying Trump’s possession of classified documents at his Florida home as a “storage” issue.
Senate Minority Leader Mitch McConnell (R-Ky.) on Tuesday dismissed a question about whether Biden’s possession of classified documents could rise to the level of an impeachable offense.
“I don’t have an answer to that hypothetical. I do think that the Justice Department seems to be willing to treat everybody the same and to try to retrieve the documents, and obviously it’s not a great idea to take classified documents away from the archives. We’ll see how they continue to handle it,” he said.
Republican senators say it should be up to Robert Hur, the special counsel appointed by Attorney General Merrick Garland, to decide whether Biden should be charged with a crime, not House Republicans, who filed more than a dozen articles of impeachment against Biden in the last Congress.
“It could be a criminal offense,” Cornyn said. “That’s what the special counsel is for. Mishandling classified materials is very serious.”
Garland appointed special counsel Jack Smith in November to oversee the Justice Department’s investigation of Trump’s handling of classified documents and whether he unlawfully interfered with the 2021 transfer of presidential power.
Cornyn, a member of the Senate Judiciary Committee, blasted some Democrats for “hypocrisy” by trying to minimize Biden’s culpability after hammering Trump for months after the FBI searched Mar-a-Lago in August to retrieve classified documents.
“The thing that’s made this such a story is the hypocrisy, [Democrats] attacking Trump,” he said. “Nobody should take classified materials outside of a secure facility, period.”
Sen. Mike Braun (R-Ind.) said fellow Republicans should “be careful” about “knee-jerking to impeachment.”
“I think the country will fatigue of that,” he said, pointing out that recent impeachment proceedings against former Presidents Clinton and Trump “have not ended up with any real result.”
“If you start doing it on everything, I think it would be bad politically and for the mechanics of government working,” he said.
Democrats picked up five House seats in the 1998 midterm elections as the Republican majority was in the midst of gearing up to impeach Clinton, marking a rare instance when the president’s party picked up House seats in the middle of a second term.
Republicans picked up 14 House seats in the 2020 election after Democrats impeached Trump at the end of 2019.
Speaker Kevin McCarthy (R-Calif.) on Tuesday formally rejected two Democrats — Reps. Adam Schiff (Calif.) and Eric Swalwell (Calif.) — from serving on the House Intelligence Committee, escalating the two-year tit-for-tat battle between the parties over who is qualified for certain positions on Capitol Hill.
House Minority Leader Hakeem Jeffries (D-N.Y.) had written to McCarthy on Saturday asking that both Schiff and Swalwell be seated on the Intel panel, where membership assignments come solely at the discretion of the Speaker.
But McCarthy said Schiff's and Swalwell's previous actions make them unfit to serve on a panel with jurisdiction over and access to sensitive issues of national security.
“In order to maintain a standard worthy of this committee’s responsibilities, I am hereby rejecting the appointments of Representative Adam Schiff and Representative Eric Swalwell to serve on the Intelligence Committee,” he wrote in a letter to Jeffries on Tuesday.
The move was no surprise.
Republicans have been up in arms over the issue since 2021, when Democrats staged votes to remove GOP Reps. Marjorie Taylor Greene (Ga.) and Paul Gosar (Ariz.) from their committees following revelations that they had promoted violence against some of their Democratic colleagues. The eviction votes came after McCarthy declined to punish either lawmaker internally within the GOP conference, which is typically where such disciplinary actions are meted out.
Still, McCarthy on Tuesday denied that his decision regarding Schiff and Swalwell was retribution for Greene and Gosar.
“This is not not anything political. This is not similar to what the Democrats did,” McCarthy told reporters on Tuesday evening just outside his office in the Capitol.
Schiff, the former chairman of the Intelligence Committee, had led a series of investigations into former President Trump, serving as the lead impeachment manager of Trump’s first impeachment, which both heightened his national profile and made him radioactive among Trump’s supporters.
McCarthy has accused him of lying to the public about Trump’s ties to Russia — a charge that Schiff has dismissed as political retribution.
“His objection seems to be that I was the lead impeachment manager in Donald Trump’s first impeachment and that we held him accountable for withholding hundreds of millions of dollars in military aid from Ukraine in order to try to extort that country into helping his political campaign,” Schiff told reporters Tuesday night.
Schiff also noted that McCarthy’s road to the Speakership was successful only after he secured the support of former critics, including Greene, charging that the process had left him beholden to those conservatives.
“I think it’s just another body blow to the institution of Congress, that he’s behaving this way, but it shows just how weak he is as a Speaker that he has to give in to the most extreme elements of his conference, in this case the Marjorie Taylor Greenes and Paul Gosars,” Schiff said.
The accusations surrounding Swalwell are of a different sort. The California Democrat was associated with a suspected Chinese spy who had fundraised for his 2014 campaign — a revelation that was not made public until 2020 — and McCarthy has said that a confidential FBI briefing on the episode has left him convinced that Swalwell is a national security risk.
“When Eric Swalwell would be in the private sector and can’t get the security clearance there, we are not gonna provide him with the secrets to America,” McCarthy told reporters.
McCarthy has also vowed to block Rep. Ilhan Omar (D-Minn.) from sitting on the House Foreign Affairs Committee as a rebuke for previous comments she made that were critical of Israel and its supporters, some of which have sparked allegations of antisemitism. In 2019, the congresswoman — who is a Somali refugee — apologized after suggesting that wealthy Jews were buying congressional support for Israel.
Omar’s situation, however, is different from that of Schiff or Swalwell. While McCarthy has the unilateral authority to block appointments to the Intelligence Committee, the full House must ratify committee membership for the Foreign Affairs panel — meaning a majority of the chamber will have to vote to block the congresswoman from serving.
That effort is already proving to be an uphill battle. Rep. Victoria Spartz (R-Ind.) announced Tuesday that she will not support keeping Omar off the Foreign Affairs committee, and Rep. Nancy Mace (R-S.C.) has expressed a coolness to the idea.
Republicans can afford to lose only four votes in the narrowly split House amid united Democratic opposition, which means the party can afford only two more defectors to still block Omar. That number could shrink to one if Rep. Greg Steube (R-Fla.), who is recovering in Florida from a fall, misses the vote. The congressman on Monday said he will be “sidelined in Sarasota for several weeks.”
It is unclear when a vote to block Omar from the panel will come to the floor. The House Democratic Steering and Policy Committee is slated to meet this week and finish committee assignments, and Omar is expected to return to the Foreign Affairs Committee. The full chamber would then be tasked with ratifying the rosters.
Asked on Tuesday how confident he is that there will be enough support to block Omar from the Foreign Affairs panel, McCarthy told reporters that “it would be odd to me that members would not support that based upon her comments against Israel.”
Pressed on those character allegations Tuesday, Omar told reporters that “all of those have been addressed three years ago.”
Schiff, Swalwell and Omar issued a joint defense minutes after McCarthy sent his letter, tying the GOP leader to the right flank of his party.
“It’s disappointing but not surprising that Kevin McCarthy has capitulated to the right wing of his caucus, undermining the integrity of the Congress, and harming our national security in the process,” the trio said. “He struck a corrupt bargain in his desperate, and nearly failed, attempt to win the Speakership, a bargain that required political vengeance against the three of us.”
Updated at 8:26 p.m.
Rep. Victoria Spartz (R-Ind.) said she will not support Speaker Kevin McCarthy’s (Calif.) effort to deny Rep. Ilhan Omar (D-Minn.) a seat on the House Foreign Affairs Committee, making matters more difficult for the GOP leader as he looks to follow through on his pledge to not seat the congresswoman on the panel.
Spartz also said she opposes McCarthy’s vow to block Reps. Adam Schiff (D-Calif.) and Eric Swalwell (D-Calif.) from the House Intelligence Committee.
But while McCarthy has the power to unilaterally block Schiff and Swalwell from the Intelligence Committee, unseating Omar would take a vote of the full House, where Republicans hold only a narrow majority.
Spartz pointed to the Democratic-led moves in 2021 to strip Reps. Marjorie Taylor Greene (R-Ga.) and Paul Gosar (R-Ariz.) of their panel assignments — which she voted against — as a reason for her resistance.
“Two wrongs do not make a right,” Spartz wrote in a statement on Tuesday. “Speaker [Nancy] Pelosi [D-Calif.] took unprecedented actions last Congress to remove Reps. Greene and Gosar from their committees without proper due process. Speaker McCarthy is taking unprecedented actions this Congress to deny some committee assignments to the Minority without proper due process again.”
“As I spoke against it on the House floor two years ago, I will not support this charade again,” she added. “Speaker McCarthy needs to stop ‘bread and circuses’ in Congress and start governing for a change.”
McCarthy has pledged to keep Schiff and Swalwell off the Intelligence Committee and Omar from the Foreign Affairs Committee after Democrats kicked Greene and Gosar off their panels.
The Intelligence panel is a select committee, which means the Speaker assigns members in consultation with the minority leader. That authority also gives him the ability to unilaterally deny members seats on the committee. Members of the Foreign Affairs Committee, on the other hand, are chosen by each party and then ratified by the full House.
Rep. Nancy Mace (R-S.C.) has also expressed a coolness to denying Omar the committee seat after voting against booting Greene and Gosar from their panels in 2021.
“I'm going to treat everybody equally,” Mace told CNN. “I want to be consistent on it.”
That GOP opposition to not seating Omar on the Foreign Affairs Committee could present a math problem for McCarthy as he looks to make good on his vow in the narrowly split chamber.
Republicans can afford to lose only two more of their members, in addition to Spartz and Mace, and still deny Omar a seat on the committee. That number, however, could fall to three if Rep. Greg Steube (R-Fla.) — who is recovering from injuries after falling 25 feet off a ladder — misses the vote. The Florida Republican wrote on Twitter on Monday that he will be “sidelined in Sarasota for several weeks.”
In 2021, 11 Republicans, seven of whom are still in Congress, voted with Democrats to boot Greene from her committees. Former Reps. Liz Cheney (Wyo.) and Adam Kinzinger (Ill.) were the only two Republicans who voted to oust Gosar from panels.
It is unclear when the House will vote to ratify committee assignments. The House Democratic Steering and Policy Committee is scheduled to meet this week and complete committee assignments. Omar is expected to be put on the Foreign Affairs Committee, according to several sources familiar with the Democrats’ plans.
After that, the slates will go to the floor for approval.
House Minority Leader Hakeem Jeffries (D-N.Y.) officially tapped Schiff and Swalwell for the Intelligence Committee in a letter this weekend to McCarthy, setting the foundation for a showdown over panel assignments for the pair.
McCarthy's frustrations with the trio stem from different areas.
Omar, a Somali refugee, has criticized the Israeli government and its supporters in the past, leading some to accuse her of antisemitism. The congresswoman was forced to apologize in 2019 after indicating that wealthy Jews were buying congressional support for Israel.
Republicans have accused Schiff of lying to the public while leading investigations into former President Trump, and McCarthy has pointed to Swalwell’s association with a suspected Chinese spy who helped fundraise for his 2014 reelection campaign. After the FBI told Swalwell about their concerns, he put an end to his ties with the Chinese national, who left for Beijing.
Both Schiff and Swalwell played prominent roles in Trump's impeachments.
“I’m doing exactly what we’re supposed to do,” McCarthy told reporters earlier this month, doubling down on his vows to deny the lawmakers assignments.
House Democrats are itching for a fight with the new GOP majority over who should qualify for committee assignments, tapping Reps. Adam Schiff (Calif.) and Eric Swalwell (Calif.) to sit on the Intelligence Committee in the face of Republican vows to keep them off of the powerful panel.
A similar collision is likely to play out in a separate arena over Rep. Ilhan Omar, the third-term Minnesota lawmaker who is expected to be named by Democrats this week to the House Foreign Affairs Committee, despite GOP promises to boot her from the panel.
The Democrats’ moves — and the imminent clashes they’re certain to spark — indicate party leaders are confident the public battle over what constitutes disqualifying behavior will play to their political advantage, particularly after Republicans granted a pair of committee seats to Rep. George Santos, the embattled New York freshman who is under fire over lies about his background and questions about his finances.
In nominating Schiff and Swalwell to the Intelligence Committee, House Minority Leader Hakeem Jeffries (D-N.Y.) made sure to name-check Santos, emphasizing his new committee posts and hammering GOP leaders for elevating a “serial fraudster” to the panels.
“The apparent double standard risks undermining the spirit of bipartisan cooperation that is so desperately needed in Congress,” Jeffries wrote in a Jan. 21 letter to Speaker Kevin McCarthy (R-Calif.).
The debate arrives as the controversy surrounding Santos has shifted from one focused on resume fabrications to more serious questions about his campaign finances — allegations that have led some Republicans to call for Santos to resign from Congress altogether. Dismissing those concerns, party leaders last week nominated Santos for two committee assignments, on the House Small Business panel and the Science, Space and Technology Committee.
McCarthy himself has defended Santos, saying he was fairly elected by Long Island voters who now deserve his representation in Washington. He’s deferring questions of potential misconduct to the House Ethics Committee.
The House Permanent Select Committee on Intelligence, unlike most other panels, has special rules empowering the Speaker to assign every member. The selections are to be made in consultation with the minority leader, but the final roster requires the endorsement of the Speaker alone, granting McCarthy the unilateral authority to block Jeffries’s recommendations.
Traditionally, that biennial process has been a routine rubber stamp, and the minority party’s picks have been seated without controversy.
But those dynamics have shifted since 2021, when Democrats staged successful votes to strip two Republicans — Reps. Marjorie Taylor Greene (Ga.) and Paul Gosar (Ariz.) — of their committee assignments.
That feud was exacerbated when former Speaker Nancy Pelosi (D-Calif.) vetoed two of then-Minority Leader McCarthy’s picks for the select panel investigating the Jan. 6, 2021, attack on the U.S. Capitol — a move that prompted McCarthy to boycott the probe altogether.
Since then, McCarthy has vowed to keep Schiff and Swalwell from returning to the Intelligence panel — a pledge he amplified on Capitol Hill this month, when he accused the pair of politicizing the committee.
“I’m doing exactly what we’re supposed to do,” McCarthy said.
The accusations Republicans are leveling against Schiff and Swalwell are unique to each lawmaker.
Schiff, as former chairman of the Intelligence Committee, had led the investigations into former President Trump’s ties to Russia, and he was the lead manager in Trump’s first impeachment, which centered around charges that Trump had leveraged U.S. military aid to pressure Ukrainian leaders to investigate his political rivals. Republicans have accused Schiff of lying to the public during the course of those probes.
In Swalwell’s case, Republicans are pointing to his association with a suspected Chinese spy who had helped fundraise for Swalwell’s 2014 reelection campaign — an episode first revealed publicly in 2020. After the FBI informed Swalwell of their concern, he cut ties with the Chinese national, who fled to Beijing. But that’s done nothing to temper the attacks from Republicans accusing Swalwell of being a national security risk.
“If you got the briefing I got from the FBI, you wouldn’t have Swalwell on any committee,” McCarthy told reporters this month.
Fact-checkers have repeatedly found the GOP accusations to be false. And Democrats maintain that McCarthy’s threats are just another of the many concessions he had to make to the conservative detractors who fought to deny him the gavel earlier in the month.
“This is Kevin McCarthy once again catering to the most right-wing elements of his conference and doing the will of the former president as well,” Schiff said Monday in an interview with MSNBC. “It’s just a further destruction of our norms and, I think, deterioration of our democracy.”
Jeffries, in his letter to McCarthy, sought to distinguish between each party’s standards when it comes to committee evictions, noting that both Greene and Gosar were removed by a vote of the full House after revelations that they had promoted violence against Democrats. Both votes, Jeffries emphasized, had some Republican support.
“This action was taken by both Democrats and Republicans given the seriousness of the conduct involved, particularly in the aftermath of a violent insurrection and attack on the Capitol,” Jeffries wrote. “It does not serve as precedent or justification for the removal of Representatives Schiff and Swalwell, given that they have never exhibited violent thoughts or behavior.”
In nominating the California Democrats, Jeffries went out of his way to force McCarthy’s hand.
Under Intelligence Committee rules, rank-and-file members are limited to four cycles — a cap Swalwell has hit — meaning that Jeffries could have simply replaced Swalwell with a less controversial Democrat. Instead, he waived the term limit in order to force McCarthy to take the aggressive step of intervening to block Swalwell from the panel. Schiff, as ranking member, is exempt from the cap.
It’s unclear when McCarthy will announce the expected decision to block the pair. The Speaker was in Florida on Monday for an annual gathering of GOP leaders. A spokesman did not respond to a request for comment.
Separately, the House Democratic Steering and Policy Committee is scheduled to meet this week to finalize the party’s committee rosters, including the expected move to put Omar, one of three Muslim lawmakers in Congress, on the Foreign Affairs panel, according to several sources familiar with the Democrats’ plans.
The Minnesota Democrat, a Somali refugee, has been highly critical of the Israeli government and its supporters, particularly on issues related to human rights in Palestine, leading to charges of antisemitism. In one 2019 episode, Omar was forced to apologize after suggesting wealthy Jews are buying congressional support for Israel.
Unlike the Intelligence panel, the members of the Foreign Affairs Committee are chosen by each party and ratified by the full House, meaning McCarthy cannot unilaterally block Omar from taking her seat. Instead, GOP leaders are expected to remove her from the panel on the House floor, as was the case with Greene and Gosar.
Democrats are expressing alarm over President Biden’s classified documents controversy, with some criticizing the president as diminished in stature and his staff as irresponsible.
“I’m very concerned,” said Sen. Jon Tester (Mont.), one of several incumbent Democrats who face potentially difficult reelection races next year in reliably GOP states in presidential elections.
“We have to get to the bottom of it to find out what the hell happened, why it happened,” he said.
“This is about national security,” Tester added, saying investigators need to find out if “it put our national security at risk.”
Biden’s January has been submerged in revelation after revelation of classified documents found at his former office and home. Most recently, 11 more documents were found during a search at Biden’s Wilmington, Del., home on Friday.
The drip-drip-drip nature of the findings has left Democrats and Republicans alike wondering whether there will be more documents found and has left the White House looking off-balance at times.
Biden emerged from the 2022 midterms in a stronger position after Democrats gained a seat in the Senate and held down their losses in the House. Democrats still see Biden as their most likely standard-bearer, and lawmakers in his party have been quick to contrast his handling of classified documents with former President Trump — who is dealing with his own controversy.
At the same time, there’s little doubt the issue has raised some questions for Biden and the White House just as his team prepared to move forward with an expected presidential announcement later this year.
Sen. Joe Manchin (D-W.Va.), who like Tester is up for reelection next year in a state that Trump won easily in 2020, blasted the lax handling of secret information as “unbelievable” and “totally irresponsible.”
Sen. Joe Manchin, D-W.Va., on Sept. 20, 2022. (AP Photo/Mariam Zuhaib, File)
Biden’s attempt to dismiss the building scandal last week by asserting “there’s no there there” also drew a barb from Manchin.
He told CNN on Monday “that’s just not a good statement,” adding “we just don’t know” what secrets may have been compromised.
Criticism from Manchin is hardly unheard of, but Sen. Dick Durbin (D-Ill.), who represents a safer state for Democrats, was also somewhat critical on Sunday. He said the controversy “diminishes” Biden and noted the president rightly felt “embarrassed by the situation.”
Sen. Richard Durbin (D-Ill.) on November 15, 2022. (Greg Nash)
Durbin on Monday said of the White House: “They were not careful in handling classified documents.”
“When I think of how we deal with them in the Capitol in comparison, whoever was responsible for it didn’t follow the basic rules,” Durbin said of the handling of classified documents.
Durbin said he never took a classified document out of his office, “let alone out of the building.”
Yet Durbin, the chairman of the Senate Judiciary Committee, stopped short of speculating whether Biden committed a potential crime, telling reporters: “I wouldn’t go that far.”
House Republicans are saber-rattling over the issue, signaling they intend to use their newly won oversight powers to look into the Biden documents story in a more aggressive way than they looked into Trump’s controversy.
Rep. James Comer (R-Ky.), the new chair of the House Oversight and Accountability Committee, has requested that the Secret Service hand over all the information it has on visitors to Biden’s Delaware home in the time since he served as vice president.
The request — made to Secret Service Director Kimberly Cheatle on Monday — came after Comer demanded that visitor logs for the residence be turned over. The White House said last week that such records do not exist.
Later on Monday, White House counsel Stuart Delery wrote to Comer that the administration does not have possession of the documents the National Archives and Department of Justice have taken as part of the investigation into Biden’s handling of classified materials.
Delery pledged to “accommodate legitimate oversight interests” in response to Comer’s request.
One GOP strategist said Republicans will go after Biden aggressively given the Trump controversy.
“The House is going to have a field day with investigations because of the fact that the Biden administration has been so outspoken criticizing Trump for the exact thing,” said Brian Darling, a former Senate aide.
Darling said the House could vote on articles of impeachment if the special prosecutor or House investigators find Biden broken the law or jeopardized national security.
“It’s possible. It depends on how the hearings go in the House. I think it’s quite possible that there will be discussion about impeachment because Democrats seemed so open to the idea of impeachment against President Trump and we’ve seen a lot of the payback from many of the things that happened when Democrats controlled the House, like kicking members off committees,” he said.
Durbin told reporters he expects House Republicans to go overboard in trying to tear down Biden, just as they did when they tried to blame former Secretary of State Hillary Clinton for the death of four Americans at a U.S. diplomatic post in Benghazi, Libya, in 2012.
Senate Republican Whip John Thune (S.D.) said Biden’s possession of classified documents now effectively “completely neutralizes” Democratic attacks against Trump for holding sensitive material in Florida.
Sen. John Thune (R-S.D.) on Tuesday, November 29, 2022. (Greg Nash)
“I’m not sure I understand all the laws that pertain to classified documents. I know the procedures that apply, but it seems to me the Justice Department is going to have to sort all that out and I think right now it’s still an evolving situation,” he said.
Sen. Ron Wyden (Ore.), a senior Democrat on the Intelligence Committee, said the careful handling of classified documents should always be a top priority and declared: “All of the circumstances are going to be examined …. So there’s a message that nobody is above the law.”
“The rule that I follow scrupulously is you don’t take documents out of the room,” he said. “Obviously there’s a lot of information coming out and I want to wait and see what the facts are.
But Wyden also gave Biden some political cover by drawing a distinction with Trump.
“One point that I don’t believe is in contention is President Biden has voluntarily cooperated and the former president did not,” he said.
Sen. Sherrod Brown (D-Ohio), who faces a competitive re-election in a Republican-leaning state, urged the administration to be as transparent as possible.
“There’s nothing that’s betrayal of national interest, there’s nothing he’s trying to hide but they need to come out with all of it,” he said. “He’s got to deal with it and get it over with.”
Sen. Sheldon Whitehouse (D-R.I.) expressed frustration that the media attention surrounding the classified documents scandal threatens to eclipse the congressional agenda.
“It’s being looked at to the nth degree,” he said. “I’m concerned that I think we’re wasting an awful lot of effort on something that has a special prosecutor look[ing] into it and at the end of the day it looks like all you’re going to find is some sloppiness. We have real problems to work on,” he said.
The head of House Democrats has submitted Reps. Adam Schiff (D-Calif.) and Eric Swalwell (D-Calif.) to sit on the powerful Intelligence Committee, setting up a battle with Republican leaders who are vowing to keep them off the panel.
Separately, Democrats this week are also expected to seat Rep. Ilhan Omar (D-Minn.) on the House Foreign Affairs Committee, according to a source familiar with the Democrats’ plans, which will likely prompt GOP leaders to hold a floor vote to remove her.
In a letter sent Saturday to Speaker Kevin McCarthy (R-Calif.), House Minority Leader Hakeem Jeffries (D-N.Y.) said Schiff, the top Democrat on the Intelligence panel, and Swalwell are both “eminently qualified” to continue their service on the committee. Jeffries requested that McCarthy seat them there.
“Together, these Members have over two decades of distinguished leadership providing oversight of our nation’s Intelligence Community, in addition to their prosecutorial work in law enforcement prior to serving in Congress,” Jeffries wrote.
The developments were first reported Monday by Punchbowl News.
Unlike most committees, however, the House Permanent Select Committee on Intelligence has special rules empowering the Speaker to assign the panel’s members, in consultation with the minority leader. That means McCarthy can also decline to seat members without relying on a full House vote.
Historically, that process has proceeded without controversy and the minority party’s recommendations have been seated. But Republicans have been up in arms since 2021, when Democrats staged successful votes to remove two Republicans — Reps. Marjorie Taylor Green (Ga.) and Paul Gosar (Ariz.) — from their committee assignments. And McCarthy has vowed since then to keep Schiff and Swalwell from returning to the Intelligence panel — a pledge he amplified on Capitol Hill last week.
“What I am doing with the Intel Committee [is] bringing it back to the jurisdiction it’s supposed to do. Forward-looking to keep this country safe, keep the politics out of it,” McCarthy told reporters in the Capitol.
“So yes, I’m doing exactly what we’re supposed to do,” he added.
Schiff, as former chairman of the Intelligence Committee, had led the investigations into former President Trump’s ties to Russia, and Republicans have accused him of lying to the public during the course of those probes.
In Swalwell’s case, Republicans have highlighted his ties to a suspected Chinese spy who had helped fundraise for Swalwell’s 2014 reelection campaign, which were first revealed in 2020. After the FBI informed Swalwell of their concern, he cut ties with the Chinese national and has said McCarthy’s decision to remove him from the Intelligence Committee is “purely vengeance.”
Schiff also served as a lead House manager for Trump's first impeachment trial, while Swalwell served as a manager for the second.
Fact-checkers have repeatedly found the GOP accusations to be false. And Democrats maintain that McCarthy’s threats are merely another promise to the conservative detractors who fought to deny him the Speaker's gavel earlier in the month.
Jeffries, in his letter, sought to carve out a distinction between the scenarios, noting that both Greene and Gosar were removed after revelations that they had promoted violent actions against Democrats, and both votes received some Republican support.
“This action was taken by both Democrats and Republicans given the seriousness of the conduct involved, particularly in the aftermath of a violent insurrection and attack on the Capitol,” Jeffries wrote. “It does not serve as precedent or justification for the removal of Representatives Schiff and Swalwell, given that they have never exhibited violent thoughts or behavior.”
He also pointed out that McCarthy and the Republicans recently gave two committee posts to Rep. George Santos (R-N.Y.), who is under fire for a series of résumé fabrications and questionable campaign finance activities. Jeffries called him a “serial fraudster.”
“The apparent double standard risks undermining the spirit of bipartisan cooperation that is so desperately needed in Congress,” Jeffries wrote.
Under Intelligence Committee rules, rank-and-file members are limited to four cycles — a cap Swalwell has hit — meaning that Jeffries waived that limit in order to force McCarthy to make good on his promise not to seat him. Schiff, as ranking member, is exempt from the cap.
Separately, the House Democratic Steering and Policy Committee is scheduled to meet this week to finalize the party’s committee rosters, including the expected move to put Omar, one of three Muslim lawmakers in Congress, on the Foreign Affairs panel.
The Minnesota Democrat, a Somali refugee, has been highly critical of the Israeli government and its supporters, particularly on issues related to Palestinian rights, leading to charges of antisemitism. In one 2019 episode, Omar was forced to apologize after suggesting wealthy Jews are buying congressional support for Israel.
Unlike the Intelligence panel, McCarthy cannot block members of the Foreign Affairs Committee unilaterally. GOP leaders are expected to stage a vote to remove her from the panel, as was the case for Greene and Gosar.
Republicans are confronting a strategic dilemma as they prepare to unleash their new investigative powers on the Biden White House: Should they take a page from the Democrat-run Jan. 6 select committee?
GOP lawmakers spent the last 18 months decrying the Capitol riot panel as an illegitimate abuse of Congress’ investigative powers. House Republicans’ complaints ran the gamut, from the Jan. 6 committee’s wide-ranging use of subpoenas to its reliance on the Justice Department for criminal contempt charges against defiant witnesses to its demands that telecom companies turn over phone records.
Despite the GOP laments, judges repeatedly backed the committee’s efforts — culminating in a Supreme Court victory that let Jan. 6 investigators delve into Donald Trump’s most closely held West Wing secrets. And as much as they abhorred the circumstances of the select panel’s creation, Republicans now leading the House’s powerful investigative committees took notice of the headway it made.
“They’ve almost changed the rules,” House Oversight Committee Chair James Comer (R-Ky.) told POLITICO. “[Are] we going to continue that pattern? Look, we want to get as much information as we can get, and they’ve written a new playbook, so we’ll have to talk about it as a committee and as a conference.”
Republican leaders are already navigating intra-party tensions over which tactics to embrace. They are under fierce pressure from their right flank and the party’s base to go scorched-earth against the Biden administration — with some already agitating for impeachments. But centrists and institutional-minded Republicans, fresh off the sting of a disappointing midterm, are warning that carbon-copying Democrats isn’t the way to go.
“I think mostly what the Democrats did as precedent is weaken Congress … I don’t think they did a very good job,” said Rep. Kelly Armstrong (R-N.D.), who is joining the Oversight Committee. “If we get into a tit for tat — I don’t think that will serve Republicans, Congress or the American people well.”
In some ways, it’s a challenge Congress faces every time the House changes hands. Lawmakers intensely rely on precedent, taking inspiration from their predecessors regardless of party or even if they previously railed against it. To Hill veterans, it’s almost a cliche: when one Congress deploys an oversight tactic, it becomes part of the toolbox for every subsequent Congress — particularly if it is tested and approved by federal courts in D.C.
“Turnabout is fair play, and they were warned this at the time — on everything from kicking members off committees … two impeachment efforts, everything else,” Rep. Tom Cole (R-Okla.) said about the possibility that Republicans use Democrats' tactics against them.
Democrats acknowledge that they approached, and even expanded, the outer limits of Congress’ investigative powers. But they say investigating an attempt by Trump and his allies to derail the transfer of presidential power, and the violent attack on the Capitol that followed, called for them to push the boundaries.
Doug Letter, the top lawyer for the House under former Speaker Nancy Pelosi and an architect of the legal battles to empower the Jan. 6 select committee, defended the panel’s investigative tactics that lawmakers had previously used only sparingly.
“It’s hard to think of a whole lot of congressional investigations that are going to be like the January 6th one, that are going to need that kind of stuff,” Letter said in an interview, pointing specifically to the panel's voluminous subpoenas for phone records from third-party carriers like Verizon and T-Mobile.
But he also said that he anticipated Republicans would seek to deploy their own battery of oversight tools, some likely aided by the battles Letter himself won on behalf of the Democratic House.
“We obviously live in a democracy,” Letter said. “Those are the people in power."
In court filings, Letter emphasized Congress’ broad ability to conduct investigations into matters of national significance. He frequently defended the panel against dozens of lawsuits brought by figures like former White House chief of staff Mark Meadows, the Republican National Committee and Trump himself.
Time and again, judges agreed that the panel was operating properly on matters of grave national significance.
That included last year, when then-Minority Leader Kevin McCarthy (R-Calif.) unsuccessfully argued in an amicus brief for Trump ally Steve Bannon that the committee shouldn't be granted certain powers as he had not appointed any members to it — a result of McCarthy's decision to boycott the panel after Pelosi tossed some of his original picks.
Republicans’ tactical options aren’t limited to those the Jan. 6 committee deployed: Democrats booted Reps. Marjorie Taylor Greene (R-Ga.) and Paul Gosar (R-Ariz.) from committees for incendiary rhetoric aimed at colleagues. (Both Greene and Gosar will sit on the Oversight panel this Congress.) Democrats also subpoenaed and won a legal fight to obtain Trump’s tax returns.
A House Democratic aide, granted anonymity to speak candidly, predicted Republicans will use some tactics against them but warned the “flip side is true as well.”
“Republicans set the playbook, and Trump set the playbook, for how to defend against some of this, get it in court and tie it up. … That sword cuts both ways from them. I’ve been around the Hill long enough to know what goes around comes around,” the aide added.
So far, Republicans have embraced two plays Democrats used: First, McCarthy is vowing to prevent Reps. Adam Schiff (D-Calif.) and Eric Swalwell (D-Calif.) from getting Intelligence Committee seats, something he can do unilaterally as speaker due to the nature of that panel. He’s also promised to keep Rep. Ilhan Omar (D-Minn.) from getting a Foreign Affairs Committee seat, which will likely spark a House floor showdown.
Secondly, Republicans green-lit a sprawling select subcommittee that will probe the “weaponization” of the federal government, including current federal investigations, the Justice Department, the FBI and the intelligence community. The controversial panel, a demand by some of McCarthy’s hardline detractors during the 15-ballot speakership fight, will be under the stewardship of Judiciary Committee Chair Jim Jordan (R-Ohio).
McCarthy, for now, says Democrats will get to pick their members for that panel. Under the rules for the “weaponization” panel, Jordan and New York Rep. Jerry Nadler — the top Democrat on Judiciary — automatically get seats. Then of the 13 additional members McCarthy names, five are in consultation with House Minority Leader Hakeem Jeffries (D-N.Y.).
“The other side will get to name their members on the committee. It won't be handpicked by me and denying the Democrats their voice,” McCarthy has told reporters.
Another area to watch will be how Republicans use their subpoena power, both in compelling witnesses and obtaining records from third parties.
Comer noted that he thought Democrats have “set a lot of precedents,” pointing to both their use of subpoenas and their use of contempt of Congress.
Both Bannon and former Trump trade adviser Peter Navarro faced federal charges for defying subpoenas from the Jan. 6 select committee. DOJ declined to prosecute two others held in contempt by the House: Meadows and Trump social media adviser Dan Scavino.
While Democrats focused on phone records, Comer has his own target: bank records, which he noted it’s “very likely” he will need to subpoena. He’s already re-upped his request to Treasury Secretary Janet Yellen for so-called suspicious activity reports tied to the president’s son, Hunter, and a network of associates. The financial reports, filed routinely by banks, often don’t indicate wrongdoing but can be a basis for further investigation.
“We want specific [financial] transactions,” Comer said. “I don’t want this thing to keep growing and growing and they never end.”
While Congress’ biggest Donald Trump antagonists are household names to political junkies — think Liz Cheney, Adam Schiff, Jamie Raskin — there’s a lesser-known Trump adversary who may have been more effective than the others: Doug Letter.
The former House general counsel was involved in every political brawl between House Democrats and Trump that has defined Washington politics for the past four years. Letter helped guide the work of the Jan. 6 select committee, played a critical role in both Trump impeachments and strategized the certification of Joe Biden’s win — before violent rioters upended those plans on Jan. 6, 2021.
Before the Capitol riot, Letter spent years litigating the chamber’s effort to obtain Trump’s tax returns and financial records, not to mention fighting the Trump administration’s effort to include a citizenship question on the 2020 Census, among many more fronts of courtroom battle.
In a wide-ranging interview with POLITICO, the House's former top attorney described his tenure battling a former president who tested the limits of executive power at every turn, resisting efforts at accountability in ways that previous chief executives had not. But he has faith that his work helped to stem future presidential attempts to push constitutional boundaries, lending more power to lawmakers.
“I just feel like the Biden administration and future administrations are not going to act like the Trump administration,” Letter said. “They’re not going to show such ignorance of our system and think that the executive branch can ignore the legislative branch. That’s not the way it works.”
Until the Capitol attack, Letter was convinced that his role in Trump’s first impeachment would’ve been the pinnacle of a job already marked by extraordinary legal confrontations. That changed on Jan. 6.
Letter was returning to the House floor from some basement vending machines when he ran into Speaker Nancy Pelosi being whisked from the Capitol under heavy guard. Don’t go back up there, one official told him. An angry mob had breached the building.
But Letter, in a panic, said he had to retrieve several giant binders that were full of sensitive strategy and scripts for the day’s proceedings. He opted to forgo evacuating with Pelosi and instead raced back to the chamber.
“I was the last person in before they locked the doors,” Letter recalled.
The attack on the Capitol led to the Jan. 6 select committee, where the House’s then-top attorney charted a legal strategy that Letternow describes as one of the hallmarks of his tenure.
Through his work on that panel, Letter secured at least two streams of information that became a core element of the committee’s voluminous findings: Trump’s confidential White House records and the Chapman University emails of attorney John Eastman, an architect of the then-president's bid to subvert the 2020 election.
Letter also won court fights to obtain telephone records from Arizona GOP chair Kelli Ward, who took part in Trump world’s plan to send false electors to Congress. And he helped direct the House’s strategy to hold certain Trump advisers in contempt of Congress, which resulted in prosecutions of Trump advisers Peter Navarro and Steve Bannon.
“We had a whole enormous number of people that, as we now know, were putting together this massive, not just a conspiracy, but a whole bunch of conspiracies, to attack our democracy,” Letter said.
Additionally, Letter played a role in the select committee’s decision to subpoena five sitting Republican members of Congress to testify before the Jan. 6 select committee, including now-Speaker Kevin McCarthy.
He has moved on now that Republicans have gained the House majority, taking a new job as chief legal officer for Brady: United Against Gun Violence. That role bears a more significant connection to his Jan. 6 committee work than it may appear, in his view. Brady, he noted, had previously written a report that credited D.C.’s strict gun laws with limiting the damage rioters caused; if they had been able to stockpile firearms closer to the Capitol, it could’ve been much worse, the report said.
And he still remembers the Capitol attack vividly. Letter said he was one of the last to leave the House chamber on Jan. 6, recalling the scene in which Capitol Police officers aimed their firearms at a rear door that the pro-Trump mob had attempted to breach. He finally evacuated at around the same moment one rioter, Ashli Babbitt, was shot and killed by a Capitol Police officer.
Letter doesn’t remember hearing the shot. But that same evening, as he was processing his own trauma, he was still acting as an attorney — representing a sergeant-at-arms official who had attempted to administer medical aid to Babbitt and faced questions about the incident from Washington-area law enforcement.
He’d kept doing his job right after being evacuated from the chamber, too. Letter joined lawmakers at a safe location in the Capitol complex, where he continued to draft scripts to rebut potential challenges, should the House reconvene and continue the session (as it did later that night). But he noticed something else that bothered him — a group of House Republicans were crowded 10 feet away and refusing to wear masks, despite the raging pandemic and the limited availability of vaccines at the time.
“I’m not going to get killed by insurrectionists,” he remembers thinking. “I’m going to die of Covid.”
One of the most interesting challenges for the House counsel, Letter said, is having to technically be the lawyer for every member of the chamber — even those who would later battle the Jan. 6 select committee.
Though the position is filled by the speaker, the House general counsel is often called upon to represent individual members in legal disputes. Letter remembers successfully representing Rep. Lauren Boebert (R-Colo.) in a First Amendment case, even though she had also been considered one of Trump’s enablers in the election gambit.
But when lawmakers aim legal disputes at each other — as when McCarthy sued to block Pelosi from implementing a system of “proxy voting” amid the pandemic, or when Reps. Thomas Massie (R-Ky.) and Marjorie Taylor Greene (R-Ga.) sued to overturn House fines for refusing to wear masks on the floor — Letter defaulted to representing the speaker and the institution as a whole.
Overall, Letter says he believes his efforts helped empower the institution of the House by putting teeth behind its subpoenas and earning court rulings that reinforced Congress’ power to obtain information to support potential legislation.
Republicans, who now hold the gavels of powerful investigative committees that Letter had previously aided, have fretted that some of the rulings during Letter’s tenure could cut against the House’s authority. One example the GOP notes is Democrats’ pursuit of Trump’s financial information through his accounting firm, which resulted in a Supreme Court ruling that established a test for the type of private information Congress could request from a sitting president.
While Letter acknowledged the criticism, he said he considered that case a “major victory” for Congress. The Supreme Court endorsed lawmakers’ sweeping power to demand information, he argued, and agreed they could obtain a president’s private information under specific circumstances, which the House ultimately met in that instance.
Mostly, he said, the rulings he pursued all the way to the Supreme Court were a function of Trump’s willingness to battle Congress more aggressively than any of his predecessors. But Letter hopes that marked a unique moment in history.
“I would hope that we’ll go back to a system where there are nowhere near as many fights in court,” he said.