The new Congress must hold Trump accountable | Claire Finkelstein

In Tuesday’s midterm elections, voters sent the Republican party an unmistakable message: their love affair with Trumpism is coming to an end.

The overwhelming victory for Democrats in both the US House of Representatives and the US Senate, was foreshadowed by a number of polls showing growing disenchantment with Donald Trump – and it was personal.

One poll in September of this year found that 53% of those surveyed believe the president is corrupt. Another identified growing disappointment among Republican voters relating to the economy. Voters held Trump responsible for rising prices, particularly for pain at the pump.

Leaders of the 120th Congress must not squander this opportunity to make real headway on the monumental task of repairing the damage to US democracy inflicted by six years of Trump.

While it will be tempting to try to press ahead with badly-needed legislative reform, the obstacles to turning bills into law will still be nearly insuperable, despite Democratic control over both houses of Congress.

Managing divisions among Democrats themselves; avoiding derailment from a Republican filibuster in the Senate; negotiating with Trump to head off the inevitable veto on most, if not all, Democratic-led law reform effort, and other road bumps along the way will have congressional leaders spinning their wheels while real change remains elusive.

Democrats are more likely to achieve lasting gains through sustained oversight investigations directed towards two goals: providing accountability in the executive branch and strengthening the institution of Congress itself.

The two goals are interrelated. Effective investigations will require Congress to force members of Trump’s inner circle to participate in public testimony on highly incriminating subjects, and that will require the patience to issue subpoenas and methodically seek their enforcement.

Lessons from two failed bids to impeach Trump should prove instructive here.

Consider the first impeachment against Trump, launched over his alleged withholding of US aid to Ukraine in order to strongarm Ukrainian officials into announcing an investigation into Hunter Biden. House Democrats tried to call key witnesses in the administration who likely had firsthand knowledge of the illegal scheme, but Trump blocked their appearance by asserting executive privilege and testimonial immunity.

Although the House heard from some two dozen witnesses, impeachment managers largely gave up on forcing the most critical ones to appear, such as the Vice-President Mike Pence, Secretary of State Mike Pompeo, National Security Adviser John Bolton, Trump’s personal lawyer Rudy Guiliani and Director of the Office of Management and Budget, Mick Mulvaney.

The only subpoena House impeachment leaders decided to pursue was against the White House lawyer Don McGahn, but the ensuing two-year court battle meant the resulting negotiated testimony was too little too late.

As I argued in an opinion piece in 2020, the first impeachment of Donald Trump displayed a lamentable circularity. Congress was stymied in its ability to investigate the second article of impeachment – “obstruction of Congress” – by the very same sort of obstruction at issue in the proceedings.

In the face of Trump’s interference, speaker of the House Nancy Pelosi, along with other Democratic congressional leaders, believed the political costs of a protracted battle over witnesses was not worth the candle. But what was lost in the shuffle was the importance of asserting Congress’ role as a check on the executive branch – and that meant the power to issue and enforce subpoenas.

The error was repeated during the second Trump impeachment in 2021, when the Senate reversed itself on a vote to call witnesses during the trial and ended up calling none.

Forcing those nearest to the president to testify on the events of 6 January 2021 could have provided critical fodder for the special counsel Jack Smith’s criminal indictment of Trump during the Biden administration.

But even more critically: it would also have strengthened Congress’s oversight authority. From the standpoint of democratic repair, the impeachments reinforced congressional ineffectiveness and made the impeachments largely counterproductive.

Undertaking a serious and systematic attempt to restore congressional authority would not be easy. As the US supreme court reminded Congress in the 2020 case of United States v Mazars, separation of powers objections may outweigh congressional oversight authority in the absence of a “clear legislative aim”.

But there’s a crucial lesson buried here: had Congress not been in such a hurry to wrap up the first impeachment investigation, House subpoenas for Trump’s tax returns and other financial records would have been issued incident to an impeachment inquiry, and the Mazars case would have come out differently.

Congress will now face this choice again. Impeachment investigations against several members of the current administration would protect congressional subpoenas from Mazars-type objections, along with the inevitable assertions of presidential privilege Trump will make.

The iconoclastic Republican congressman from Kentucky, Thomas Massie, has already filed articles of impeachment against the secretary of defense Pete Hegseth. Starting with a member of Trump’s cabinet, rather than Trump himself, is a smart strategy for forcing cooperation, one that prosecutors know all too well from prosecuting organized crime. It will also help minimize presidential interference in the push for transparency.

Although Democratic leaders have refused to support efforts to impeach Trump for a third time, the House minority leader, Hakeem Jeffries, made clear that impeachment would be on the menu if the House changed hands.

Now leaders of the 120th Congress must weigh the costs and benefits of a third impeachment highly unlikely to result in removal. But in the plus column belong the oversight benefits of conducting a long, slow investigation that enhances transparency while enabling Congress to reassert its authority.

There is no time to lose. Repair of democratic institutions will be a lengthy process, and a critical interim goal will be strengthening the oversight powers of the new Congress and every Congress thereafter.

Simultaneously with this effort, Congress must put its own house in order by passing internal ethics measures designed to eliminate congressional conflicts of interest and enhance internal integrity, or newly strengthened congressional oversight powers could be weaponized against a law-abiding occupant of the Oval Office.

But right now an overly powerful Congress presents a distant and unlikely threat.

If past attempts to hold Trump accountable have taught us anything, it is that allowing presidents to control the very processes by which their own conduct is judged poses an even graver danger to democracy than straightforward presidential law-breaking.

The new Congress should be singularly focused on reversing this breakdown in the democratic process and restoring the role of Congress as a true check on presidential authority.

• Claire Finkelstein, a contributing opinion writer for the Guardian, is the Algernon Biddle professor of law and professor of philosophy at the University of Pennsylvania. She is also the founder and faculty director of Penn’s Center for Ethics and the Rule of Law (CERL). She is a fellow in residence at the Edmond & Lily Safra Center for Ethics at Harvard University during the 2026-27 academic year