This piece first appeared on the blog Impeachable Offenses.
This weekend brought a subtle, but important, bit of good news for those interested in effective congressional investigations of the Trump administration.
Attorney General William Barr is threatening to refuse the request of the House Judiciary Committee that he testify later this week. Reportedly, Barr is balking because the committee will deviate from the pattern of recent congressional hearings in which members do all the questioning and every member gets a paltry three to five minutes to ask questions of the witness, with no opportunity for follow-up. Instead, House Judiciary Chairman Jerrold Nadler is delegating some of the questioning to committee lawyers who will have 30 minutes to pursue lines of questioning to their logical conclusions. There may also be a private session about any classified materials in the Mueller report.
The “get every Member on camera for five minutes” mode of proceeding has long had those of us who are trial lawyers tearing our hair and screaming at our TV sets (or computer screens). It is guaranteed to be ineffectual for three reasons: First, cross-examination, particularly of reluctant or hostile witnesses, is the single most difficult trial skill. To do it well takes training and years of practice. Perishingly few members of either the House or Senate have the professional background to have mastered it. For most of those few, the experience was years in the past, and they’ve lost their edge.
Second, the best cross-examiner in the world can do little if confined to an arbitrary five-minute limit. Thus, even the rare talented congressional interrogator can be filibustered for five minutes by any reasonably self-possessed witness.
Third, sequential questioning by members could be made fractionally more effective if all the members (or at least all the members of one party) carefully coordinated the topics and lines of questioning to be pursued. But there is little indication that this is ever done, and it would require a degree of diligence, focus, and cooperative spirit improbable in a group composed of office-seekers eager to get individual, and distinctive, face time.
If you want an eye-opening contrast to the aimlessness and patent grandstanding of most modern congressional hearings, go watch the proceedings of the Senate and House committees investigating Nixon and Watergate. Three key differences jump out: First, the committee’s professional counsel did much of the questioning; second, they were unconstrained by artificial time limits; and third, the senators and congressmen of both parties were prepared for their turns at questioning and were obviously interested in learning the truth. Moreover, in order to promote candor and avoid concerns about unfairly besmirching reputations, a number of the key hearings were held in private.
The result was that, in Watergate, both the Senate and House hearings were genuine factual inquiries in which witnesses were compelled to answer questions comprehensively and explain inconsistencies in their stories. Both sets of hearings maintained coherent narratives and exposed important facts that would not otherwise have come to light.
It is extraordinarily heartening to see that Nadler seems to have learned a lesson from history. Barr’s anguished cries at the prospect of a modest move back toward earlier and more productive modes of procedure should be seen as what they are—the vain protestations of a lawyer who knows the power of competent cross-examination and desperately wants to avoid having it directed at him.
That said, Nadler’s proposal is only a modest step in the right direction. The staff questioning will still be broken up into five-minute alternating chunks between majority and minority counsel, which is sadly reminiscent of the clumsy experiment by the Senate Judiciary Committee’s Republican majority in the Kavanaugh Supreme Court confirmation hearings.
Nadler should do two things. He should stick to his guns in this confrontation with Barr. And in the future, he should move even more firmly in the direction of procedural rules that, in living memory, facilitated the discovery of truth. Committees of both the House and Senate who want facts should follow and build on his example.