Lawfare Daily: Congressional Power and the Confirmation Process, with Mike Stern and Donald Sherman

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[Intro]

Donald Sherman: So there's any number of questions that will not get asked once Trump comes into power. And certainly that Republicans in the Senate have demonstrated they have no interest in exploring, but Democratic senators need to remember they have power until January 3rd and they need to use it.

Molly Reynolds: It's the Lawfare Podcast. I'm Molly Reynolds, senior fellow at Brookings and senior editor at Lawfare with Mike Stern, former senior counsel to the U.S. House of Representatives and Donald Sherman, executive director and chief counsel at CREW.

Mike Stern: So it already has in Article 1 a tie breaking provision which says if one house wants to adjourn and the other one doesn't, you don't adjourn. You need the consent of both. And if what they meant was, well, you need the consent of the other one or the president, you'd think they would have said that there.

Molly Reynolds: Today, we're talking about the Senate confirmation process, recess appointments, and what's ahead for oversight in the 119th Congress.

[Main Podcast]

All right. So there are lots of issues to talk about with the coming Congress, both in terms of the Senate's role in the advice and consent process, and then generally the role of Congress in overseeing the executive branch. So I want to start with kind of where we are in time right now and thinking about the period between now and the end of the calendar year, which is still the 118th Congress, still working. And will feature the Democrats still have a majority in the Senate until the end of the Congress before the new Congress is sworn in on January 3rd.

So Donald, I want to start with you: what, if anything, just could Senate Democrats be doing now to be kind of getting information about, using the power that they still have as the majority party in advance of the new Congress, particularly in the context of some of the more controversial nominees that have been announced by President-elect Trump?

Donald Sherman: You know, I think the Senate has often had a problem harnessing its own power. I think Leader McConnell has been an outlier and a powerful outlier and has blocked Senate norms and traditions to exert power, most notably when he blocked President Obama from even having a hearing for Merrick Garland despite, you know, close to a year long vacancy on the Supreme Court. So I think it's important to remember that as important context.

But, you know, the things that the Senate can do and needs to do aren't magical, right? Like, they are the things that presumably the American public sent them to Congress to do, and so, you know, they are working hard to confirm judges despite Senator Schumer's deal on the Circuit Court of Appeals judges, which I will set aside for the moment. But, you know, they could also move the IG nominations, the inspector general nominations that President Biden has nominated through the process.

There are a couple of notable ones that still haven't been confirmed, including the Treasury Inspector General for Tax Administration, TICTA, which is incredibly important because it oversees the Internal Revenue Service, which, you know, if you listen to anything that Trump has said and look at what both the House and Senate are doing now is they are trying to give the executive branch, and specifically the president, more authority to, to punish nonprofit organizations through the Internal Revenue Service. So having a confirmed inspector general overseeing the IRS is important.

Including, in addition, there's a vacancy for the inspector general that oversees the intelligence agencies. And given that President-elect Trump has nominated someone who's had a number of dubious issues related to security and security clearance. I think, you know, confirming an NSA IG is going to be important as well.

But I think the most important thing that the senators could be doing right now is conducting oversight over some of these nominees. For example, Mr. Hegseth, who's been nominated to lead the Department of Defense, despite having scant qualifications for the role, as compared to any prior person to sit in that chair, has a number of really damning scandals, including allegations of sexual misconduct, like Mr. Gaetz before him, who recently withdrew. Why isn't the Senate calling a hearing to hear from either his accusers or from the lawyers for his accusers and witnesses? There's no reason why they can't hold that kind of hearing. There's no, certainly it would be of great public import. And I have every bit of confidence that Republicans in the Senate will have no interest in calling those witnesses before the committee. And so that's one way among many that the Senate could be using its authority.

There's a number of highly, highly questionable nominees, whether it's Robert F. Kennedy Jr. for HHS, you know, Dr. Oz. You know, not only do they have conflicts of interest, but again, they have, you know, pretty glaring public scandals that should be investigated before they are confirmed and will not be by Republicans.

But, you know, I think another opportunity for oversight is over the Department of Government Efficiency which is, it's unclear what it's going to do. It's unclear where it's getting its money from, though they are interviewing people for jobs, apparently, in this quasi-government, but not government committee, partnering with subcommittees in the Senate and the House in order to do their work.

Well, if I were on the Senate Rules Committee, I would want to know who's paying for this, you know, committee to do its work. What's the interaction between the Senate committee and whatever this private entity is? Is it going to be a federal advisory committee, in which case he would have to comply with the FACA. Are the staffers that Musk and Ramaswamy hiring government employees where they're subject to conflict of interest laws? Are they being paid from the federal purse or are they essentially lobbyists that then have to do, you know, comply with lobbying disclosure?

So there's any number of questions that will not get asked once Trump comes into power, and certainly that Republicans in the Senate have demonstrated they have no interest in exploring. But Democratic senators need to remember they have power until January 3rd and they need to use it. If Mitch McConnell was in this situation, he would be using his authority until the wheels fell off. And there's no reason why, you know, these senators on the Democratic side should do anything different.

Molly Reynolds: That's a great sort of overview of what's kind of on the table between now and January 3rd. Let's talk about after January 3rd. Let's talk about what happens once Republicans take the majority. Thinking then mainly about, kind of, the hearing process, the confirmation process, the process of committees engaging in vetting or not. What does that look like?

And particularly, I'm curious, you know, to hear your thoughts about what power, if any, Congress has, both parties, to push back against reported plans by the Trump administration or sort of the Trump administration transition, to eschew FBI background checks in, at least for some nominees in the confirmation process. What are the tools available during the confirmation process on the part of the Senate in this scenario?

Donald Sherman: Well, if they're foregoing the FBI background check, you know, I mean, first of all, when I worked in the Senate and did nominations for Homeland Security, we didn't have a hearing until Senator McCaskill got her FBI briefing, right? That was the last thing that was done before there was a hearing.

There is no reason why these hearings should be scheduled without an FBI briefing. This is not just standard protocol, it is absolutely necessary to ensure that nominees are loyal to the United States as opposed to loyal to a foreign agent or, you know, one particular person.

It is necessary to ensure that they have not committed or been credibly accused of any crimes. I mean, there are any number of reasons why, you know, eschewing the FBI background check is a dereliction of duty. And every Democratic senator, I like, I don't even know why Democratic senators are talking about substance, right?

They should be talking about, we're not hearing any of these nominees until we have the FBI background check. I'm like, I'm not familiar with any deviation from this process. Maybe there has been a, you know, at some point, but not in my experience. And there's any number of reasons why it would be highly problematic.

First of all, we don't know who's paying these people to do the background checks, right? Like we don't know anything about them. One of the reasons why the process goes to the FBI is because the FBI works for the government. They don't work for one president or another, which is another thing that will likely change if President-elect Trump gets his way, but there's no indication that these folks doing background checks is independent.

And, you know, again, an example of what the Senate can do with its power right now is they can ask questions about who's doing this vetting, what kinds of questions they're asking. Does that process, you know, make sense? They could have hearings with people that did background checks in prior administrations to explain why it's so important, what kinds of things the background check process reveals, so that the American public understands, there is a reason why Trump is not going through the FBI process.

Here's why it's bad for everyday Americans. Here's why, you know, having a cabinet secretary who has some glaring conflict or glaring criminal issue in their background getting confirmed, or even getting all the way to through, like further through the confirmation process, is bad for the process and bad for the public, but again, you know, Democrats need to lean into their power. And I think Republicans and Democrats need to, need to stand up for the rule of law in some kind of regular order here.

Molly Reynolds: Mike, any thoughts from you on either what could happen between now and the end of this Congress or in the sort of vetting and confirmation process early in the next Congress?

Mike Stern: So I would say, first of all, that one important time period is the time period between now and January 20th, because that's the time when the Biden administration remains in place.

So to the extent that Senate Democrats or Republicans, but presumably mostly Democrats, want information from the administration, obviously now is a good time to do that, right? And that's true even in January after they become the minority, if they've made requests to the administration for information they need, that's obviously time-critical.

There's a lot of other things that they could be doing. Donald mentioned a number of them. Probably some of them are maybe more politically realistic than others. I personally would be interested if I were the chair of the Judiciary Committee, for example, be interested in asking the president’s Justice Department nominees, the AG, but others as well, their opinion on the January 6th election theories that were floated by the president's lawyers last time around. What they think about the vice president's authority to set aside electoral slates, for example. That's something they could send letters to do, to the various nominees and ask to respond before January 6th, cause that could be important information during the electoral count of next year.

There's a lot of things, I guess, that could be done. I tend to agree the Senate has not historically been very active in doing things like issuing subpoenas and enforcing them, so there's a limit, probably, on what you can reasonably expect them to do with respect to forcing people to come and testify.

But, there's got a lot of issues to raise with these potential nominees and there's certainly things they can start on now, while they're still controlling the committees, but even, you know, in January.

Molly Reynolds: Great. Thanks. We started by talking about kind of the first step in the process of vetting and moving nominations, which is, so, the investigation hearings in the Senate. I would expect probably that some of these, some hearings for the highest profile nominees may well occur after January 3rd and before January 20th when President Trump is sworn in. That's quite common, even though the nominations themselves don't actually get submitted formally until the new president is in place.

But that's sort of assuming we're living in a mostly regular advice and consent world. Again, whether the Senate chooses to exercise all of its institutional power in terms of trying to get information about nominees, it's a little bit of a separate question, but again, assuming hearings, votes on the floor.

President-elect Trump has been floating a possible scenario whereby we don't actually get confirmation votes on some of these nominees. He's been floating the idea of using a very aggressive version of the recess appointment power to get some of these folks in place. So Mike, can you walk us through a little bit of sort of what the recess appointment gambit looks like? Why are we talking about this? What does it actually rely on for it to be able to happen? That sort of thing.

Mike Stern: Sure. So, since the Noel Canning Supreme Court decision in 2014, the Senate, and the House, actually, have both been holding pro forma sessions, even when they're really not conducting active legislative business. They hold pro forma sessions every three days in order to ensure that there's no recess within the definition that the Supreme Court played out in Noel Canning so that the president is unable to use this power to make recess appointments.

The theory seems to be that if the Senate is unwilling to agree to a recess, which, from what we understand, even though the Republicans will be taking control in January, it does not sound like a majority of Senate, or enough Senate Republicans are willing to go along with that in order to create a recess, that the president would use a provision constitutional provision, which has never before been used, to have the House ask for recess. And then if the Senate disagrees with that, the president would use a provision of Article 2, which says, in cases of disagreement between the House and the Senate, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper.

And the theory is that if the president uses his authority, that will create a recess within the meaning of the Recess Appointments Clause. And the President can then go ahead and appoint, make recess appointments that would be valid even without advice and consent, and would last until, through the end of the next session of the Senate.

That is the theory. I think there's a number of serious problems with it. I think beginning with the fact that the margin in the House is so narrow that I seriously doubt even the House is going to go along with this. But if, hypothetically, the House were to pass an adjournment resolution, I think there's a lot of questions about whether or not, there's two basic questions.

One, does this provision, which has never before been used, actually allow the president to adjourn both the House and the Senate under these circumstances. I think there's serious questions about that. And then even if he can, is that a recess within the meaning of the Recess Appointments Clause as it's been interpreted by the Supreme Court in Noel Canning? I think there's also some serious issues about that.

Molly Reynolds: I agree with you, that it's possible that the House itself is a constraint on this. We've mostly been telling you all this out so far, but there are a couple of House Republicans who have indicated that they are not in love with this possible plan.

They're not House Republicans who have necessarily have a strong history of pushing back against either Speaker Johnson or President-elect Trump, but the quotes are out there. So, we will see what happens.

But I am curious to just hear you talk a little bit more about those two issues that you just raised about the potential that if we were to find ourselves in what I've taken to calling the refusal scenario, where the Senate refuses to consent to a recess and President, then full President, Trump chooses to try and send them home, what are the legal questions in terms of like what constitutes disagreement and whether that meets the definition of a recess under Noel Canning?

Mike Stern: Okay. For the few listeners who are really into this, this is very exciting!

So, as I mentioned, the language that we're talking about. It says, in case of disagreement between them, the House and the Senate, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper. Now there's not only no case law on this, there's really no precedent whatsoever and very little, almost no even scholarly speculation about it. It's such a dormant clause.

However, looking at it on, just sort of on the face, well, one has to think, what is the time of adjournment mean? As someone who actually has read this before this came up and thought about it, at least in passing, I always assume that the time of adjournment referred to the time that they would start the adjournment, right? The time that they would actually decide to adjourn.

But there's a problem with that: it doesn't make a lot of sense. Because as the clause is written, there's a disagreement as to the time of adjournment. And then it says the president can adjourn them to such time as he thinks proper, which means the time that they would, the adjournment would end, right, when they would come back? That’s really an odd way of formulating the provision.

If their disagreement as to the time of adjournment, as the disagreement as to when they adjourn, why wouldn't he break the tie as to that, as opposed to breaking the tie as to something they may not even disagree about, right? So, that creates the possibility that the time of adjournment actually means the time that the adjournment will last, right? The time, the length of the adjournment, really, is what they mean.

And when they say the time to which adjournment, to the time which he thinks proper, they mean he can decide on the, on how long the adjournment should last, because they disagree about that, right? The assumption being that they actually both agree that they should adjourn, it's just that they disagree as to when they should come back.

And that would actually make sense, because there's a provision in Article 1, which already talks about what happens if one house wants to adjourn and the other one doesn't. It says, neither house shall adjourn for more than three days, which is how we got this Noel Canning pro forma session, right, without the consent of the other.

So it already has in Article 1 a tiebreaking provision, which says if one house wants to adjourn and the other one doesn't, you don't adjourn. You need the consent of both. And if what they meant was, well, you need the consent of the other one or the president, you'd think they would have said that there. So if that's true, then if one house wants to adjourn, if the House wants to adjourn, the Senate doesn't want to adjourn, there is no disagreement as to the time of adjournment, and there's no cause for this provision to be used.

There are some other possibilities that various other people have raised about how this provision could be interpreted that also might not allow the use of it in this case. For example, some have pointed out that the way the provision actually immediately follows the president's use of the extraordinary session power. So it could be referring to only adjournment after the president calls an extraordinary session, which would not be applicable here. I personally don't think that's probably right, but again, since there's no authority, there's a lot of room for creativity. In any event, that's my reason for thinking that it may not apply in the first place.

Let's assume, though, that it does apply, right? So that gets on to the next issue. Let's say the House does ask for a recess, Senate doesn't act. President says, okay, there's a disagreement, so I'm going to adjourn you for 10 days or 20 days or whatever it is, and then he tries to make recess appointments. In that case, we get to the issue that was discussed, or the language of Noel Canning, which actually involved a 5-4 split, even though the court unanimously agreed that the recess appointments that President Obama made were unconstitutional, disagreed 5-4 as to why.

The majority decision, written by Justice Breyer, took kind of a functional approach to the issue of what was a recess and basically, he said, as long as there is a break and adjournment of a sufficiently long time that the Senate can't reasonably act, that that constitutes a recess and therefore the president can make recess appointments, even if they're within a session.

And in reaching that conclusion, he relied heavily on the fact that presidents had historically made these kinds of appointments in relatively short timeframes, basically recesses or adjournments of 10 days or more. And he concluded along with the majority of the court, that as long as the break was 10 days or more, that was a recess and recess appointments can be made. However, because they had only actually been three-day breaks in the case of President Obama's appointment, that was too short, therefore, they were invalid.

However, four justices, led by Justice Scalia, said, no that's not right, as to how you determine when recess appointments are to be made. They said you could only have recess appointments when the recess is actually between sessions. So, basically, the end of a, basically when this, when the Congress adjourns, sine die, at the end of a session, could you make recess appointments. And they also said that the vacancy that the recess appointment is made for has to actually happen during the recess, which is obviously something that rarely happens, which really would eliminate recess appointments in most cases.

In any event, so we have these two views. If you take the concurring opinion, the minority opinion in Noel Canning, clearly this recess appointment would not be valid, because this is just an adjournment within a session. Now, it's actually an interesting question that we get to is what could the president actually use his power to end a session, which is would be another novel thing.

But if he did that, then the new session would begin right when they came back and so that would make the recess appointments much shorter. So he probably wouldn't want to do that, even if he thought he had the power to do it. And for reasons I won't get into, because we've, because, I know nobody wants to get this much into the weeds. I think actually you cannot use that clause to end a session.

Nonetheless, the concurrence from Noel Canning, which still has three justices on the Supreme Court: Justice Thomas, Justice Roberts, and Justice Alito, all joined that Scalia opinion, which would say that what Trump was trying to do here would be illegal, right? And then you have the majority opinion, which, they're only two justices, Sotomayor and Kagan, left, assuming they followed the reasoning of the majority opinion, I think you'd have serious questions about whether this was valid. There's no historical basis for it, and functionally it doesn't make any sense.

Unlike the recess appointments that Justice Breyer approved in Noel Canning, that were, his argument was the purpose of the recess appointment clauses to allow the president to make these appointments when the Senate is out for a long time, right? And it doesn't shouldn't really matter whether it's in between sessions or not.

Here, the only reason they're out at all would be because the president decided that they should be out so he could make the recess appointments, which is totally contrary to the purpose of the recess appointments. And again, it has no historical precedent.

So I think even if you assume that a majority of the current court would follow the majority reasoning of Noel Canning, I think they would, very well might hold that these are, that this was invalid. And certainly if they followed the concurring opinion, Justice Scalia's opinion, which one would assume that new justices like Justice Gorsuch, Kavanaugh, Barrett might be inclined to do, then it would be clearly invalid. So, I think for all these reasons, this is a very, very long shot and President Trump would be well advised not to do it, but luckily, I think he won't get the chance.

Molly Reynolds: Mike, that was an incredibly helpful overview of the legal issues. Donald, I want to ask you, just why does this matter? Why should we be worried about the possibility, in addition to sort of the legal questions that Mike raises, but as a matter of institutional power, why should we be worried about the possibility that the Senate, you know, could choose to go along with the president, or in a situation where they didn't, the president might still try and do this anyway. What are the institutional considerations?

Donald Sherman: Well, our system of government is set up and advice and consent is specifically written into the Constitution so that the Senate could be a check on a president's power. It is among the sort of key distinctions in our government, you know, why we're a democracy and not a monarchy.

And so, you know, I think the abdication of this responsibility, and Trump's desire to sort of plow ahead, cannot be divorced from the fact that he has a 53 to 47 majority in the Senate. And so the idea that he would be interested in pursuing recess appointments despite an electoral, significant electoral advantage in the Senate is a clear indication that he won't abide the Senate's power in any way, shape, or form, whether it's advice and consent, which is a function so important that it's written into the Constitution, or oversight or anything else.

And so, you know, it's a reminder that, you know, when the Senate abdicates its responsibility, as it did when it declined to convict Trump after his impeachment in January of 2021, it's bad for democracy. And, you know, we have checks and balances for a reason, and the fact that Trump would consider undercutting this explicit constitutional mandate in such a brazen way is disturbing.

Now I will say, I think it's unlikely that this will happen, because the Senate will probably vote for his nominees, you know, and if it was going to happen, why wouldn't it have happened for Gaetz, right? You know, if there was a nominee so important to Trump, but also so bad that, you know, he couldn't get that person confirmed with a 53 senator majority, there's something else wrong there, right?

And so, you know, I think it is just highly unlikely to happen because I don't know, you know, I don't have a great deal of confidence that four senators are going to buck Trump in that way, without fear of political retribution. And I don't know that it's going to be important enough to Trump to do it.

If not for the attorney general, then, you know, I'm not sure what role is of such significance, to him personally, that he would sort of go through all of these motions to push it through, you know. To be perfectly honest with you, it seems like a solution in search of a problem that the Senate doesn't have spine to create in the first place.

Molly Reynolds: Yeah. I mean, I do think that, I think that for me, ultimately, this is a question of like, Trump testing the sort of loyalty of Senate Republicans. And it does have these ultimately interesting certainly for people who think about these separation of powers questions, kind of legal, sort of legal dimension. But fundamentally it's a political question and it's a question about what Senate Republicans are willing to do or not do.

So Donald, you mentioned in your last answer, oversight. So I'd love now to talk a little bit about oversight generally, looking ahead to the next Congress. And I'll sort of pose the same question to both of you and Donald, maybe I'll come to you first.

What are you watching in the oversight context? What do you think are going to be sort of the most pertinent issues, biggest flashpoints, that sort of thing as we look ahead towards congressional oversight in the new year?

Donald Sherman: You know, I think two things. One is what happens with inspectors general is already lots of signs that Trump plans to fire every inspector general in government as part of the transition, which is not normal, does not happen and should not happen. But it will have the air of normalcy, if, you know, if IGs are lumped in with other political appointees. And I think that's going to be important for oversight.

Again, I find it highly curious that a president who's concerned about efficiency in the government, has designs on firing the people who are hired specifically to promote efficiency in the government. They're making a big stink about DOD failing an audit. Who audits DOD? What did Trump do to the DOD inspector general during his first term in office? He pushed the acting IG aside, right?

So I don't view those concerns with credibility. I think you only remove IGs, not because you're concerned about efficiency, but because you are concerned about somebody blowing the whistle on corruption. So I think that's the first thing that I'm looking at in oversight.

The second thing that I'm looking at is: does the minority have any steel in its spine? And at least in the Senate, the answer to that question will be obvious based on what they do while they still have power, as we discussed earlier.

But, you know, I think, to be honest with you, I am happy that there are some House members that are coming to the Senate because the House does oversight, as messy as it is, does oversight better than the Senate. And hopefully there is some of the, that House sentiment and attitude that comes to the Senate in terms of the oversight that they conduct.

But I'm also curious about what happens when the administration's corruption and incompetence begins, as it undoubtedly will, to undermine the stated political priorities and so-called mandate from the American public, right? When the grifters get in and start making decisions that line their pockets, as opposed to focusing on the priorities of the president, focusing on, you know, the priorities of the public, will the oversight come at that point? Because I think as we all saw the last time around, there were a number of instances where agencies that had priorities from the president couldn't get the job done because they were too busy spending taxpayer dollars on private jets, on ridiculous furniture, creating scandals of their own making.

And I think it'll be interesting to see whether Trump goes to bat for some of these people or whether the oversight function will at least do that. We know that they will abide anything that Trump wants. How willing they are to stand by his cabinet and his cronies, I think is a different question. And I think maybe that, you know, that could present an opportunity for bipartisanship, you know, give some of these people cover to act like they're doing something. And, you know, I'm happy to have accountability come, regardless of the motivations of the people doing it.

Molly Reynolds: Mike, what about you? What are you watching in the oversight context of the new Congress?

Mike Stern: Well, I think I'll pick up on what Donald was saying. I think there is an opportunity for some bipartisan oversight.

One of the things that I think happened during the first Trump administration is that there were so many scandals surrounding Trump personally, that all of the oxygen was like, taken up with that. And when you get to those kinds of issues, it becomes very difficult for people, even people who are people of the president's party, to break with them, even if they're critical of the behavior or whatever.

If you're dealing with problems in the agencies or even cabinet officials, it becomes much easier, I think, for there to be bipartisanship. And it may be wise to start out the administration focusing more on those things. That's particularly true given the very narrow margins in the House. So you can easily imagine that if there's only three seats or less separating the parties, that just a handful of Republicans in the House who want to investigate something that isn't, you know, at the thermonuclear level, right? They have a lot of power.

So, for example, if the problem solvers, the House problem solvers, wanted to start being a clearinghouse for certain types of oversight, they would have the ability to do that. And it would be very hard for the Speaker to tell them no, given that he would depend on their vote. They would have more than enough votes to tip any vote in the House. And so, that kind of oversight, I think, is important.

We can also look at, the use of the GAO to do oversight. So for example, we're talking about the Department of Government Efficiency, right? And what is it? And you know, what, how does it, is it a FACA committee and what legal authorities have and where does it get its funds from? Those are all things that GAO could look at pretty effectively, I think. And so if you get, and really the Democrats don't need the Republicans to join in to make a request to GAO, but certainly if they had some bipartisan support for that, that would make GAO investigation and that kind of thing much more effective.

And then we have to look at the issues regarding the minority's ability to conduct oversight. During the first Trump administration, there was a memo from the OLC, which I don't believe has ever been rescinded, that says that individual members of Congress, including ranking minority members, do not have the authority to conduct oversight in the sense that committees do.

That is, while they can make requests to the executive branch, there's no, the OLC said, there's no obligation, no constitutional obligation to provide the information or to engage in the accommodation process, in order to give them information. And that was somewhat taken, I know Senator Grassley reacted very badly to that. And he got I think a letter from Mark Short in the Trump White House at the time that sort of walked that back a little bit, but it's still on the books. So we'll see if they go back to that and whether there are members on the Republican side, like Grassley, who are willing to stand up for the process of oversight.

And then I think there's just generally, when we talk about IGs and issues like that, a question of the institutional power of Congress to conduct oversight and whether there'll be some focus on that, just a general matter.

I think, in that regard, the Supreme Court's recent decision in the presidential immunity case is important because it suggests that there's some certain things that the criminal justice system no longer has jurisdiction over, relating to presidential conduct and potentially even the conduct of other officials in the executive branch. And certainly Congress needs to take a look at that and see what it needs to be able to look at in order to make sure that those things are not being, just falling through the cracks. So there, there are a number of issues like that, that I think Congress should be taking a look at.

Donald Sherman: Yeah. You know, I totally agree, I think if I were about to be in the minority, I would be sending GAO requests now, given that they take a little bit of time to move along. But, you know, the, I think the other big thing that I am thinking about in terms of oversight, is retribution that was promised, and that, you know, the president elect ran on, and I think I would not be surprised if congressional committees and the president's allies in Congress use their oversight authority to attack the president's  critics. That's something that he has promised, that they have supported, but also it's something that Congress can do and give President Trump some distance from it.

And so, you know, I think that's something that I, you know, I think that if, and when it happens that, you know, the good government community and the press should sound the alarm, but I think it's something that would not surprise me, at all because, you know, Trump has promised this for a long time. His nominees have promised retribution and, you know, his supporters in Congress have done so.

And even if they have a slim majority, you don't need a majority to send subpoenas. And so I, like, that's the other thing that I am thinking about because they certainly don't have a vested interest in doing oversight of the executive branch. Well, you know, with the exception of IGs and with the exception of going after people on Jack Smith's team and things like that, which I think they will also do, but those are the things that I am looking at, because I think they create a toxic environment that would allow Trump to deliver on his promise with cleaner hands than picking up the phone and calling the attorney general.

Molly Reynolds: All right, Mike, Donald, we'll leave it there for today. Thank you for joining us.

Donald Sherman: Thank you.

Mike Stern: Thanks very much.

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