The scale of the victory came as a shock even to Democratic leaders in Washington—including veterans like Chuck Schumer and Hakeem Jeffries, both of whom pride themselves on their mastery of polls, cross-tabs, fundraising, and voting patterns down almost to the precinct level.
As Democrats delivered their victory speeches late on election night, it was clear that they had made history, winning the midterms by a landslide larger than any since the Watergate era. Amid such an unmistakable repudiation of Donald Trump, hopeful liberals around the world indulged fantasies of belated justice—a level of accountability and a check on presidential lawlessness that could ultimately result in the permanent disgrace of the most corrupt president in American history.
But several hours later, after the confetti settled, a different attitude prevailed. “The American people don’t want us to get even,” Jeffries, the incoming House speaker, told the hosts of Morning Joe on November 4. “We won on affordability. And now it’s our job to govern on affordability.” Jeffries has, of course, nodded to the need for “accountability,” vowing to impose it on “those who have visited unprecedented corruption on our country.” But Jeffries’s frame—either Democrats will deliver or they’ll seek retribution—raised immediate questions about how deeply Democrats will internalize one of the key lessons of this election. A huge majority of Americans nationwide identified corruption as a key consideration. Will Democrats deploy all the powers available to Congress to expose and put a check on it?
The outcome of this election was thrilling. Democrats are set to control over 250 House seats and at least 54 seats in the Senate. But we need to face something soberly. Once the celebrations stop and the new year begins, we all know exactly what will happen: Even if the Democrats move aggressively on the accountability front, Trump will order his administration to ignore subpoenas and toss sternly worded letters into the garbage. If Congress refers Trump’s allies for criminal prosecution, his coconspirators who run the Justice Department will erupt in laughter. Trump might even ignore Congress when it tries to cut off the thing that makes all of his corruption possible: money. Yet already, a debate among Democrats over how aggressively to pursue Trump, and fight his obstructive tactics, has spilled into the open.
In the weeks leading up to the election, we spoke to a number of House and Senate Democrats and senior congressional aides. We sought an answer to a question that now appears even more pressing: How aggressively will congressional Democrats wield their institutional powers once it becomes clear that Trump and his accomplices in the White House will stand in the way of every investigation the Democrats undertake—and every check they place on his abuses of power?
To put the question another way: What deeper mindset will Democrats take into these battles? Will they approach the next year as if we’re still locked in a deep crisis—as if the constitutional order still hangs in the balance, requiring maximal exercises of power? Or will they enter with a more lax posture, as though their midterm victory has brought things more or less under control, and the crisis has largely been averted?
“We’ll still be facing a lawless president,” Senator Chris Van Hollen of Maryland told us. While Van Hollen stressed that this would only be one piece of the Democratic agenda, he added: “And that will require complete pushback.”
But, unfortunately, not all Democrats see things in these crisis-like terms. And it’s unclear whether the ones who do will be willing to act accordingly, or will be able to persuade their reluctant colleagues to rise to the moment and be sufficiently confrontational.
Every Democrat we spoke with agreed that the Trump administration is world-historically corrupt, and most expected his lawbreaking to persist or even escalate. Some do seem willing to contemplate suspension of the regular order of things, if that’s what it takes to slow or stop the lawlessness. Others, though, seem more resigned to running a playbook for normal times, one that’s plainly unsuited to the coming moment.
Checks and Balances? Under Trump?
To obstruct, all Trump has to do is say no. No, we will not cooperate with your investigations. No, we will not prosecute people who defy your subpoenas. No, we will not follow the law.
The key to understanding the dilemma Democrats now face is that our system of checks and balances rests on a shared baseline commitment to upholding the rule of law. Trump is the first president of the modern era to openly dispense with the notion that justice should be blind, and to declare the Constitution as nonbinding on his tribune-like powers. Trump feels exactly zero responsibility to act as steward of the constitutional order or preserve it for future generations. So the coming period of divided government could devolve into tests of will and raw power. Those, in turn, risk toppling us quickly into crisis. And the deeper problem is that when good guys blink, or appease transgressors, they don’t just end the acute crisis of the moment. They consign us all to new precedents. New double standards. New depths of doubt that a fair and just democracy can be restored.
Every Democrat we spoke to anticipates the very worst from Trump. They expect intense obstruction. Noncompliance with oversight requests and demands. Refusal to be bound by the strings attached to money, which the Constitution entrusts Congress to shell out and control. And a bottomless willingness to drag things out in court, with the undisguised goal of nullifying controversies by tying them up for months or years—perhaps even until this administration is over and the controversies are moot.
Normal checks and balances don’t have great answers to this.
In modern practice, Congress has leaned heavily on a standard set of tools for conducting oversight and seeking accountability. Committees request documents and testimony. Aides and members work behind the scenes to understand the often-opaque inner workings of the government. When they hit roadblocks, they demand depositions and further production of evidence. If the administration resists, they issue subpoenas. If officials flout their subpoenas, they can be held in contempt of Congress, at the risk of civil and criminal penalties, including big fines and even arrest and hard prison time.
These tools can be quite effective, even in adversarial conflict with an executive branch controlled by the other party. The oil that keeps it all functioning is a basic willingness, however reluctant, to preserve our system of government. This generally means officials don’t ignore their subpoenas sight unseen, they agree to appear at congressional hearings, and they don’t treat public money as theirs to spend or dole out to friends and allies.
When those assumptions no longer apply—and they certainly do not apply with Trump—Congress quickly runs out of normal tools to enforce compliance, and the majority has to choose: resign itself to being spat upon, or embrace significantly more aggressive tactics.
Josh Chafetz, a legal scholar at Georgetown who wrote the definitive book about Congress’s hidden tools, notes that the Democratic majority in the House struggled to respond to Trump’s obstruction of oversight in 2019 and 2020. The first Trump administration was historically contemptuous of congressional prerogatives, but it still honored some norms—for example, officials did attend hearings, and agencies did occasionally cooperate with oversight requests. Now things are likely to get more confrontational—much more so.
“The Democrats in the last two years of the first Trump administration sort of ran up against some of the limits,” Chafetz said. “Now they’re going to run up against those limits even harder.”
How Democrats Can Bring Down the Hammer—If They So Choose
So what would it look like if Democrats were to deploy maximal power against the administration next year? To escalate, Democrats would likely have to test one or all of the following approaches:
• Inherent contempt, a rarely invoked mechanism that allows Congress to imprison or otherwise penalize people who defy lawful commands.
• Impeachment, which threatens executive branch officials with the prospect of removal and places Congress at the height of its constitutional authority.
• The power of the purse, which allows Congress to place conditions on the money it authorizes the government to spend.
Unfortunately, as we learned in our conversations with lawmakers and aides, many Democrats are inclined to disclaim some of these methods.
That isn’t entirely a sign of weakness. Congress has not invoked its inherent contempt authority in almost 100 years, in part because it’s rarely been necessary, and in part because it’s messy.
The Supreme Court has repeatedly affirmed that the Constitution empowers Congress to enforce its own will; if a reluctant witness refuses to testify, Congress can punish him directly. In recent years, when members have flirted with inherent contempt, they’ve toyed with the idea of imposing fines on contemptuous witnesses.
But historically, Congress would dispatch its sergeant at arms and other law enforcement officers that he or she might deputize to arrest and detain those witnesses. For obvious reasons, this is thorny: If the witness is a member of the executive branch, with an executive branch security detail, what happens in an armed standoff?
This tactic is being debated at high levels among Democrats, according to Representative Ted Lieu, a member of the incoming House Democratic leadership team. “I have discussed inherent contempt with leadership and some of the oversight committee chairs,” Lieu told us. Still, he cautioned, any such move would be litigated, just like more standard processes. And we are skeptical that the idea has much traction among other Democrats. As one senior Senate aide told us, inherent contempt is “really fun to talk about,” but because it seems politically onerous, radical, and difficult to implement, it’s a “long shot.”
Impeachment, by contrast, should be much less controversial, and can be very effective at speeding up investigations and prying information loose. That’s in part because courts will be more deferential to an impeachment inquiry than to congressional committees conducting normal oversight. Witnesses also feel especially compelled to cooperate and are uniquely protected if they do. In 2019, investigators in the Democratic-controlled House were mostly stymied—until Trump’s first impeachment, at which point administration officials came out of the woodwork to testify in astounding detail about his corrupt scheme to pressure Ukraine to subvert the 2020 election.
This is why we think Democrats should be prepared to deploy the impeachment power promiscuously—including against Trump’s most controversial Cabinet officials. To give just one example, they should seriously contemplate impeaching Attorney General Todd Blanche for his corrupt prosecutions of Trump critics and for concealing important chunks of the Epstein files. This would be justified on the merits, but it would also maximize Congress’s investigative power over the Justice Department, where all sorts of malfeasance surely remains hidden from view.
But to do all this, Democrats would have to be overwhelmingly united. And as of this writing, they plainly are not. As Senator Tammy Duckworth of Illinois recently pleaded: “Don’t be impeaching anybody. Let’s just get back to work, and maybe we can come to compromises.”
Representative Adam Smith, a moderate from Washington state who’s the incoming Armed Services Committee chair, backs impeaching Trump. Smith told us he anticipated that Democrats from swingy or red districts and states will be reluctant to support impeachment proceedings. “I know this will be very difficult for a lot of my colleagues,” Smith said. “But Trump has simply become so dangerous that it needs to be done.”
Coming Soon: The Democrats’ First Test
Which leaves the spending power. If inherent contempt and impeachment remain off the table, congressional budget authority will be Democrats’ only real power tool, and they’ll have to wield it aggressively: no money for agencies that obstruct investigations. No money for key Justice Department offices so long as they’re withholding the Epstein files or corruptly prosecuting Trump critics. No money for the illegal war against Iran or illegal executions of supposed drug smugglers on the high seas. And so on.
In the decades since Congress cut off funding for the Vietnam War, however, Republicans have been much more inclined than Democrats to wield this power in divided government—with one notable exception.
Last year, when Obamacare subsidies were on the verge of expiring, Democrats withheld their votes to fund the government, contingent on the demand that Congress extend those tax credits. Republicans refused, and appropriations lapsed. The government furloughed federal workers across agencies, impacting everything from air travel to IRS assistance to environmental cleanup projects. And here’s the kicker: Even though the Democrats could fairly be said to have caused the shutdown in the immediate sense, Republicans shouldered more of the blame. Democrats were wielding power and doing so effectively. Then, abruptly, a bloc of Senate Democrats decided they’d made their point. They folded a winning hand, and the shutdown ended.
To vindicate their power of the purse, Democrats in this coming Congress will have to show greater stamina and resolve. Senator Chris Murphy of Connecticut argues that it actually undermines the Democratic Party’s core complaints about Trump—that his authoritarianism is a threat to the republic—when Democrats are unwilling to deploy this power against those things. “I do not think it helped our messaging over the last year and a half that we broadly weren’t willing to deny them funding for departments that were operating clearly outside of the bounds of the law,” Murphy told us.
The first test of Democratic mettle will arrive much more quickly than you might think. In December, almost a full month before Democrats reclaim power, the current operating budget for the federal government will expire. Democrats could insist on defunding the Iran war straight away. But at the very least, they should agree to only a very brief extension of funding. This would prevent the government from shutting down over the holidays, which would surely be unpopular. But more to the point, a short extension would allow Democrats to preserve their leverage over Trump, because the budget would have to be renegotiated in early 2027. Trump and Republicans will want a longer-term extension for precisely this reason. And that could escalate into a standoff.
Most Democrats we talked to expect the party to dig in. “We’re going to be confronted very quickly with a decision as to whether we’re going to use appropriations as leverage,” Murphy said, adding that effective oversight will be impossible if Democrats refuse to hold the line.
“My view,” Van Hollen added, “is either Republicans work with us to begin to make changes that we think are necessary, or, yes, we have a short-term [budget] punting it into the beginning of next year.”
More broadly, for this method to work—for it to end the Iran war, rein in ICE, end Trump’s vindictive prosecutions, and secure the release of the Epstein files—Democrats would have to resolve themselves to potentially leaving large parts of the government unfunded, in ways that they find politically challenging.
Some Democrats do appear prepared to refuse funding, even if it results in protracted standoffs, to accomplish things like thwarting Trump’s corrupt prosecutions. “I hope we will use our appropriations power as a hammer against any further illegitimate political persecutions of American citizens for their political speech,” Jamie Raskin, incoming chair of the Judiciary Committee, told us, stressing he will make this case to appropriators.
Representative Yassamin Ansari, a member of the Oversight Committee, agreed. “The Trump administration is using taxpayer resources to attack the president’s perceived enemies,” Ansari said. “We must stop funneling taxpayer dollars into Trump’s agencies that abuse their power and violate Americans’ rights.”
Murphy, who is an informal leader of a similarly stalwart faction in the Senate, is ready for long struggles, too. He says Democrats should hold up Defense Department spending entirely to force an end to the Iran war. “I think it would be a pretty popular move for us to draw a hard line and say, ‘We are willing to fund the military, but only if this war ends,’” Murphy told us. “It would force Republicans and the administration into spending more time and oxygen defending the war.”
But Murphy readily allows that he can’t force that dilemma on Republicans unless the Senate Democratic caucus is with him. “I think there will be a question,” he acknowledged carefully, “as to whether Democrats are willing … to hold up the entirety of the defense budget over a commitment to end the war.”
Affordability vs. Accountability: A False Choice
We see another problem lurking in the Democratic mindset. Some Democrats have taken to arguing that the threshold test for the party’s agenda—legislative or oversight—should be a simple one: Does it improve the lives of ordinary people? Yes, or no?
We’re not disputing that members of Congress are elected to deliver benefits to their constituents—to make people’s lives better. Obviously, they must pass such measures, even if Trump vetoes them. But there’s a problem with formulating this standard as a hard-and-fast rule: It creates a back door for some Democrats to avoid doing difficult things in defense of the rule of law, in defense of immigrants or other marginalized groups, even in defense of their own powers as leaders of a coequal branch.
There will quickly come a point when House Democrats must decide whether to take politically difficult stances on things that aren’t obviously connected to the immediate material circumstances of their constituents. If, for instance, Trump orders the DOJ to prosecute more of his critics, and Democrats confront whether to withhold funding from that office to end another outbreak of lawlessness, would that tangibly make ordinary people’s lives better? What about the debate over how to rein in Trump’s mass-deportation regime and his lawless ICE agents? Democrats will want, at a minimum, to draw hard lines against things like ICE’s warrantless searches, ICE’s mask-wearing, and Customs and Border Patrol—which has been responsible for a great deal of brutality—operating in the country’s interior. Some Democrats, at least, hope to use government funding as a lever to force an end to those things. Would that improve ordinary people’s lives, or not?
This mindset, we fear, will create additional cover for Democrats who are already inclined to avoid confrontation for other reasons. When very difficult political choices arise—over, say, whether to defund offices within DOJ to derail a corrupt prosecution—those Democrats will argue that their election victory was about “affordability,” and that defunding DOJ will do nothing to ease voters’ kitchen-table concerns.
Party strategists and a subset of commentators will no doubt agree. But Democrats should think hard right now about what such a surrender would look like after millions and millions of voters handed them an array of powers and authorities to check a lawless authoritarian president.
We’re arguing for this not just because we think our approach has more merit in the abstract. It’s also that the supposed tension between cost-of-living issues and accountability is mostly fictitious.
Consider, first, that there’s very little chance Trump will sign legislation that Democrats pass to ease cost-of-living concerns. He has shown no appetite for signing measures that redound to the political benefit of Democrats. And so, practically speaking, if kitchen-table issues crowd out accountability measures, Democrats will be choosing to focus on symbolic advances—cost-of-living legislation that Trump vetoes—over doing things where their power actually can slow or stop Trump.
Second, there is no fixed budget for congressional priorities. Democrats can do many things at once. Joe Biden signed the Inflation Reduction Act in August 2022, just days after the last substantive hearing of the House January 6 Committee in late July. Why can’t this incoming Congress impeach Pete Hegseth one day and send Trump a bill restoring Medicaid coverage the next? Of course it can.
We also think that, in the minds of voters, when the economy is stagnant and the president is looting the country for personal gain, there is no clear distinction between anti-corruption politics and pocketbook politics. Exposing, ending, and punishing corruption will make economic life in America fairer by definition. And that will place Democrats on the side of the people who play by the rules.
Framed in this way, anti-corruption politics can unite the caucus and avoid the divisions that flow from establishing a false choice between kitchen-table concerns and checks and balances.
Some Democrats appear to agree with us. “If we want this government to work for the people, then we have to put an end to corruption and restore the rule of law,” Virginia Representative James Walkinshaw, a prominent member of the moderate New Democrat caucus, told us. “I don’t think there’s any conflict between being substantively centrist or pragmatic [and] recognizing that Congress has a responsibility to assert its constitutional role. I don’t think those two things are in tension.”
Going After the Abettors
None of this is to say conventional oversight tools indicate weakness in and of themselves. These tools have their place, and they can function as intended, even against a lawless president like Trump. They did in his first term, and they surely will again.
After all, it was Michael Cohen’s 2019 testimony to Alexandria Ocasio-Cortez, obtained during a standard congressional hearing, that established the basis for New York Attorney General Letitia James’s sprawling lawsuit against the Trump organization.
Trump may rage and sputter. He may test our ability to imagine the outer limits of “high crimes and misdemeanors.” But he is also entering his lame-duck years a loser. He will become a more diminished figure, whose power to bully elites and underlings into line will ebb. Congressional aides tell us they expect some administration officials to grow more willing to appear before Congress—if not to turn over documents—as Trump weakens. If they’re right, this will create more incriminating moments, as when Cohen testified nearly eight years ago.
Aides also expect the pace of whistleblowing to pick up. The protections that a congressional majority can offer will render people “more willing to come forward,” one aide told us, adding that recent conversations she’s had with would-be whistleblowers left her persuaded that “there are a lot of people who have stories to share.” After the country rejected Trump so overwhelmingly, their willingness to speak out is likely to grow.
Civil contempt is another option. This mechanism outsources subpoena enforcement to judges, who can levy fines on noncompliant officials. It avoids the obvious problems associated with inherent contempt, though it operates at a much slower pace. And it’s very plausible that officials will grow less willing to risk a big financial hit on behalf of a sunsetting Trump, particularly with many in his party looking beyond him.
“In theory, you could have an individual fined on a daily, weekly, or monthly basis for the time that they’re not complying with a subpoena,” Walkinshaw tells us. “We absolutely have to be willing to do that.”
Also in this bucket: private-sector actors who abetted Trump’s corruption. Multiple Democrats privately told us that they will be looking for creative ways to bring oversight to bear on entities—law firms, media companies, universities—that capitulated to pressure to make “deals” that in effect handed money or resources to Trump’s pet causes. Other Democrats are already discussing oversight of corporations that handed thinly veiled bribes to Trump in the form of “donations” to his imperial projects and campaign committees and were rewarded with favorable treatment from the government, such as the companies that received government contracts after donating to Trump’s ballroom.
The key nuance here is that this creates a route to direct oversight of Trump’s corruption that he can’t obstruct. These entities can’t simply defy oversight demands without creating serious legal and financial risk for themselves. With Democrats taking power, Trump in decline, and the public clearly arrayed against him, incentives will align for executives to divulge internal communications about their decision to bandwagon with Trump’s corruption.
“By focusing on outside actors, you have a better chance of getting information,” a senior Senate aide told us. Yet some Democrats are already balking at this approach: One bafflingly told Politico that such oversight would constitute “banana republic” conduct, when in fact it would be about undoing Trump’s efforts to turn us into a banana republic.
These entities will plead that they only surrendered to Trump under duress. But caving was optional. Every company and firm and university that held to principle survived—even flourished. As for those that didn’t, to the extent that they want to contend they played ball with Trump’s corrupt schemes only because they felt they had no choice, Democrats should confront them with a new demand: that they show meaningful public support for new anti-corruption legislation to set things right.
Finally, there’s the simple tactic of gathering information that might be usable for future prosecutions if Democrats win the presidency in 2028 and a real attorney general takes over. That becomes germane if Congress is able to discover clear violations of federal law—actual, legitimate violations, as opposed to the fake ones drummed up by Trump’s DOJ—on the part of Trump officials or outside actors who corruptly collaborated with them. Indeed, Lieu told us he intends to question witnesses with this in mind. “One of the main things we should do is get evidence for the next Department of Justice,” Lieu said, adding that such evidence could also be grist for prosecutions by state attorneys general.
As Ocasio-Cortez proved, this can work under careful questioning of cooperative witnesses. But it works by delegating and deferring accountability. The damage Trump can do in the meantime—to immigrants, to alliances, to our constitutional system—will be incalculable.
A Fight Caucus
One of the frustrating things about this lack of consensus among Democrats right now is that past congresses have shown more mettle in less perilous times.
The House impeached Andrew Johnson for improperly firing a Cabinet official, and while that was controversial, it’s a reminder that impeachment should remain a tool when serious circumstances warrant it. In 1879, the House of Representatives arrested a U.S. envoy to China—an executive branch official—for the comparably small sin of concealing official ledgers, which Congress believed might show evidence of waste or theft. Why should this approach be verboten when Congress has so many more pressing affronts to its authority to beat back?
Some outside voices are starting to make the case for hardball tactics like inherent contempt. “I do not think that’s a dead end,” Georgetown’s Chafetz said. He asked us to envision a scenario in which Congress detains Elon Musk, who enjoys extraordinarily lucrative government contracts, for refusing to testify about his conversations with Trump about their quid pro quo corruption. Trump would undoubtedly claim executive privilege applies, and his claim would be litigated in court—possibly for months or years. Meanwhile, Musk could plead with the courts to order his release—but while those cases are pending, he’d be stuck in some kind of holding facility. “It doesn’t seem particularly outlandish for a private citizen who is defying a congressional subpoena to be held in custody while that defiance is litigated,” Chafetz told us.
In the end, we think that Democrats who resist this sort of approach will be susceptible to a combination of factors: public pressure, Trump’s escalating lawlessness, and cajoling from more energetic peers. Leaders who believe we’re still in the midst of crisis, and who feel pained when Democrats shrink from challenges, should prod reluctant colleagues to join them.
Indeed, we think these energetic Democrats should formally organize for what’s coming by creating Fight Caucuses—one in the House, one in the Senate. Large blocs of members in the Freedom Caucus, Progressive Caucus, Blue Dog Coalition, and other caucuses routinely bring influence to bear that changes the strategic direction of whole parties.
A Fight Caucus in the House could do the same. It can demand enforceable concessions from Jeffries, who will want a free and easy path to the speakership. We similarly hope that outside advocacy groups—existing ones, or new ones—will treat constitutional hardball as a litmus test that Democrats must meet, no less than support for abortion rights, universal health care, or environmental protection. They can give each member a Fight Score, and provide direction to Democratic Party primary voters: This candidate was a stalwart fighter for democracy, constitutional governance, and the rule of law. That candidate was not.
Ansari, for her part, says she’s open to the idea of Fight Caucuses. And she makes a critical point: Organizing within the caucuses in defense of the rule of law could improve party cohesion. “It’s a great way to unify people,” Ansari said, noting that “fighting corruption and authoritarianism” has adherents in “every part of the caucus.”
Perhaps the best message for hesitant Democrats is to remind them of who Trump is. He is incorrigible. Much as some may want to proceed as if everything’s normal, he will leave them no choice. All they do by resisting confrontation is let him set the terms on which inevitable power struggles unfold.
We are entering a period that will be defined by a paradox. On one hand, Trump will take his abuses of power and assaults on the constitutional order to dangerous new lows. On the other hand, in the eyes of the public—and even in the eyes of many in his own party—he will be seen as a naked and exposed tyrant, an increasingly ludicrous figure who’s passing from the political scene. The best way to resolve this paradox is for Democrats to mount a full-on offensive to save the country. The emergency remains; but the despot’s attempt to cement authoritarian rule has been dealt a potentially fatal setback. Now is the time to bury this national nightmare once and for all, by deploying every last shred of congressional power to that end.
