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Yes, Members Of Congress Should Let Staff Question Witnesses Like William Barr


Controversy simmered over the weekend regarding this week’s scheduled testimony of Attorney General William Barr regarding Special Counsel Robert Mueller’s report. Politico reported Sunday on the planned strategy of House Judiciary Committee Chairman Jerry Nadler (D-NY):

Nadler wants to allow each committee member a five-minute round of questioning. A key point of contention has arisen over Nadler’s wanting to allow for another round of question of 30 minutes for each party’s committee counsels. The chairman also proposed that the panel go into closed session to discus the redacted sessions of the report. Barr has rejected both proposals, according to CNN, which cited an unidentified committee source.

On Monday, the House Judiciary Committee announced plans to hold a special vote on Wednesday authorizing an extra hour of questioning at Thursday’s hearing, which would allow the majority to designate 30 minutes for its counsel.

White House Press Secretary Sarah Huckabee Sanders criticized House Democrats’ behavior regarding the hearing as “childish.” One Republican committee aide viewed it as disrespectful to have staffers questioning the attorney general.

Given the divergence of opinion over the Mueller report, even minute elements can easily devolve into partisan foodfights. Put another way, whether one believes committee staff should question a witness may turn on whether one also believes House Democrats’ behavior constitutes a fishing expedition designed to damage, embarrass, and impeach President Trump.

But the merits of this particular process question have little to do with the merits (or lack thereof) of the inquiry regarding the president’s conduct. As a former congressional staffer, I can think of several reasons why it would make more sense for members of Congress to return to the past practice of having staff, instead of lawmakers, question witnesses.

Detailed Subject-Matter Expertise

Members of Congress serve on multiple committees, and must familiarize themselves with many issues. After the hearing on the Mueller report, members will vote on climate legislation in the House on Thursday.

Members will also attend other committee hearings this week, on issues ranging from the budget and infrastructure to health care, energy, and everything in between. These appearances and commitments require most members to become versed on a variety of policy issues.

Unfortunately, however, breadth of knowledge often comes at the expense of depth of knowledge. Just like many members of Congress did not read Obamacare prior to voting on the legislation, many members of the Judiciary Committee may not have read all 448 pages of the Mueller report prior to Thursday’s hearing, which would inherently limits their ability to question witnesses.

Capitol Hill staffers—both those working for the committee, and those working for individual members—try to draft insightful questions based on witness testimony available prior to the hearing. But the best questions sometimes arise “on the fly,” based on spontaneous prior responses, or connections among the proverbial dots in an investigation.

And the more complicated and detailed the issues—as with the Mueller investigation—the tougher it becomes for generalists to make those connections themselves. The individuals who have fully immersed themselves in material related to the investigation stand the best shot of piecing together the full picture. That’s the committee staffers, not the members.

Into the Weeds

The “Saturday Night Live” skit of Brett Kavanaugh’s confirmation hearing touched on this issue. During the Kavanaugh proceedings (the real-life version as well as the skit), the counsel hired by Senate Judiciary Committee Republicans to question Christine Blasey Ford lamented the difficulty of investigating a series of events that happened three decades previously in short, five-minute increments. Longer rounds of questioning would allow for more time to pursue detailed subjects in depth. That’s one reason oversight subcommittees in Congress allow for longer questioning times.

Because they decided to run for Congress, most members tend to seek public approval, and would rather be loved than feared. They also may not play an adversarial role well, one that requires questioning a witness’ credibility or argument. In this case, an unelected committee staffer can more easily play the proverbial “bad cop,” because he or she has less to fear from aggressive questioning of a witness than a member of Congress afraid of looking bad to constituents back home.

What’s the Point?

Congress has a long history of using staff to question witnesses. During the Senate Watergate hearings, committee counsel Fred Dalton Thompson (later a senator himself) asked the questions of White House employee Alexander Butterfield that prompted the revelation of the Oval Office taping system that proved President Nixon’s downfall.

But as cameras have become ubiquitous in official Washington, lawmakers have proved less and less willing to cede the proverbial hearing spotlight to their staffs. As a result, congressional hearings have become less an exercise in policy-making than in theatrics. Members and witnesses get to regurgitate their talking points, but the legislative process does not benefit from as much of an in-depth give and take as might have occurred in years past.

In some sense, whether staff question witnesses at Thursday’s House Judiciary Committee hearing seems immaterial. Most Republicans and Democrats have their minds made up about the merits (or lack thereof) of the Mueller report, and the president’s actions, and the hearing seems largely a messaging exercise.

But going forward, members on both sides of the aisle, and in both chambers of Congress, should think about ways to allow for more substantive, in-depth hearings on policy issues. Returning to the past practice of having committee staffers question witnesses seems a good place to start.