Can Democrats Hold Trump Accountable?

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In this episode of The David Frum Show, The Atlantic’s David Frum opens with a reminder on how hard President Trump has worked over the past two years to prevent free and fair elections in 2026.

Then David is joined by Dave Rapallo, a former longtime staff director of the House Committee on Oversight and Reform, for a conversation on what tools Democrats in Congress would have to investigate President Trump, and how the president might respond. David and Dave discuss both the challenges and the opportunities for Congress ahead for reasserting the rule of law in America.

Finally, David ends the episode with a discussion of I, Robot by Isaac Asimov and its influence on today’s tech world.

The following is a transcript of the episode:

David Frum: Hello, and welcome to The David Frum Show. I’m David Frum, a staff writer at The Atlantic. My guest this week will be Dave Rapallo, a professor at Georgetown Law Center and one of America’s leading experts on congressional investigations: what they can accomplish, what they cannot accomplish. And we’ll be talking about the challenges and opportunities in the Congress ahead for reasserting the rule of law in America.

This week’s book is I, Robot by Isaac Asimov, which is—whether you notice it or not, whether you’ve read it or not—has become kind of a bible of the AI era, a book that obviously has influenced many of the most important people in the AI community and the AI tech world.

But before either the dialogue with Dave Rapallo or the book discussion of I, Robot, some opening thoughts about the dramatic events that are coming our way in American politics.

I am recording this monologue on Monday, November 2nd. You are watching it sometime after Wednesday, November 4th. So you will know, probably, or you are soon to know, the outcome of the 2026 midterm elections, and I don’t yet know them. But there’s something else that you know that I don’t know that may be even more important or at least as important as the outcome—and that is whether or not President Trump tried on voting day to manipulate the election result. I don’t know that yet. You know that story and all its drama. I hope for good news. I hope that everything I’m about to say is completely irrelevant, and that you are watching this knowing, Well, that went off not too badly under the circumstances.

But it’s important to keep in mind, as we come to this vote, how hard President Trump has worked over the past two years to prevent a free and fair election from culminating on Tuesday.

Now, let’s just go through the roster. And you will remember many of these details, but I don’t think you’ll remember all of them. First, President Trump encouraged his party at the state level to engage in redistricting in the middle of the decade. President Trump started that in July ’25 by asking Texas Republicans to redraw their congressional map to create more favorable districts for the party, even though there was no new census data to base that redrawing on.

Now, it’s not that things like this have never happened before in American history. They have happened before. But in our times, in modern times, it’s basic good government that you do the census in a year ending with a zero. You do the redistricting in the year ending with a one. And then everyone lives under the same maps for the next decade. And while those maps have some politics in them, some effort to prevent racial abuse in them, basically you try to draw something that’s reasonably fair within the political context of each state.

President Trump blew all of that up and started a redistricting war, Democrats against Republicans. At first, Republicans took the advantage; then the Democrats seized it back. In the middle of it, the Supreme Court ruled 6-3 in April of 2026 to gut most or all of the Voting Rights Act of 1965, to allow Republicans to engage on a new wave of gerrymandering—this quite racially motivated—to gain advantage for themselves. And while the first round of gerrymandering in 2025 probably broke even or ended a little bit in the Democrats’ favor, this second round has clearly worked in the Republicans’ favor, backed by the Supreme Court.

Now, if so far you would say, This is ugly politics, but again, not completely unprecedented. But the other things that the president has tried to do by executive order—those really are unprecedented. In March of 2025, he issued an executive order that would have required documentary proof of citizenship to register and stop the counting of mail-in ballots that arrived after Election Day from being counted. And he did all this not through the law, not through the law of the states—who are the ultimate keepers of the election, right, according to the Constitution—but through presidential personal power.

Now, a judge stopped this, so it didn’t happen. But President Trump did not give up. In March of ’26, he issued another executive order, this time directed to the Postal Service, to set up a system allowing it to block delivery of mail ballots to voters who weren’t on the list submitted in advance by state election officials. This, again, was a completely arbitrary action, personal power by the president. Again, stopped by the courts.

But he kept at it, with executive order after executive order taking upon the president powers that the Constitution assigns to Congress and to the states. There were repeated attempts to seize information belonging to the states—either to reopen the 2020 election, but also to test whether federal law-enforcement personnel could be used during the 2026 election to disrupt and seize information from those votes. He demanded state voter rolls. He tried to set aside state ballots while voting was underway. Again and again and again, President Trump tried to interfere. Again and again, he was stopped by the courts. He’s lost many more fights than he’s won, and that’s reassuring.

But the question you will know the answer to, and that I don’t, is whether President Trump, as of Monday, November 2nd, is out of tricks, or whether there’s something dark and nasty reserved to try on November 3rd.

As we built toward January 6th, 2021, everybody could see that something was coming. But I don’t think anybody imagined what was coming: the actual attempt to invade Congress and disrupt an election count by force, with putting the lives of the speaker of the House and Trump’s own vice president at risk. No one anticipated just that, even though we could hear the momentum toward something bad.

In this cycle, we also hear the momentum to something bad. I don’t know what that something is. You may know. Let’s hope it was nothing too terrible. Let’s hope it was defeated, as the preelection attempts were defeated. But if not, and if, as you watch this, you are dealing—and I am and my future self—are dealing with something nightmarish in America, let’s all hope that we can be strong through the next two years, as we’ve had to be strong through the past two years.

And now, my dialogue with David Rapallo.

[Music]

Frum: Dave Rapallo is an associate professor of law at the Georgetown University Law Center. He spent 23 years in senior positions in Congress and the White House. For a decade, he was staff director of the House Oversight and Reform Committee. In President Obama’s first term, he was senior director and counsel for legislative oversight at the National Security Council. His academic work focuses on congressional investigative power, with special attention to the minority party’s tools. Dave Rapallo, thank you so much for joining me today on The David Frum Show.

David Rapallo: Thanks for having me. Appreciate it.

Frum: Just to make things transparent for our viewers and listeners, we are recording this discussion before the midterm elections of 2026—or, at any rate, before we know the outcome of the midterm elections of 2026. And we’ll be posting it after you, the viewer or listener, do know those outcomes.

But for the purposes of today’s show, we are going to assume that there will be a change in the balance of power in at least one house of Congress, maybe two. And I’m going to ask Dave to explain to us what a new majority in either house can realistically do, and what it realistically cannot do, with the gavels of the chair of the majority power.

So let me start with that. What should people not expect from a new majority by way of investigative power and constraint on presidential action?

Rapallo: Well, thanks for having me. I really appreciate it. I think assuming, like you’re saying, that the Democrats have taken the House or the Senate or both, they’re going to have a steep road ahead in terms of enforcing subpoenas. There are legal enforcement methods; there are nonlegal enforcement methods. I think the challenges posed by the Trump administration in particular are unprecedented in terms of both the scale and the severity of those challenges. But I do think a Democratic majority, despite a steep climb in this area, can achieve significant goals if they plan ahead and they organize themselves, and they use the tools that they do have available in a smart way.

Frum: So let’s start with the obstacles. When you were in the Obama administration, it probably did not occur to you that you had the option of simply, when you received a subpoena, simply crumpling it up, throwing it away, and ignoring it.

Rapallo: No, not at all.

Frum: But it turns out, that is an option.

Rapallo: Yeah. In fact, we saw it during the first Trump administration, when I was still working as staff director on the House Oversight Committee. The president went out on the White House lawn and declared, “We’re fighting all the subpoenas.” There was no distinguishing what the subject matters were, whether there was an adequate privilege asserted. It was a blanket refusal to comply, and it didn’t have anything to do with the substance. He just declared that they were all partisan and therefore all invalid. And that is, constitutionally, just an unacceptable position.

Frum: And people in the administration, likewise—or people who had been in the administration or in President Trump’s orbit—they also refused to comply. And in some cases, they served prison sentences because of their noncompliance.

Rapallo: They did, yes, especially with respect to the January 6th investigation. Two of them were held in criminal contempt and did time. So in that case, there was a remedy. But of course, that was after President Trump had left office and we had a different president.

Frum: Because you had a Justice Department that was willing to assist Congress in enforcing subpoenas.

Rapallo: Exactly.

Frum: So where you’re going to be, likely, in ’27 and ’28 is with a Justice Department that shares with the president the view the president doesn’t have to answer any questions.

Rapallo: Correct. The president and a lot of administration officials, probably, will be their position.

Frum: Let’s start by playing President Trump’s cards.

So, you have an uncomfortable awareness that you’ve done a lot of things that might not look good if brought to light. In fact, won’t look good if brought to light. And some of them may even be illegal; some of them may be criminal. So you’re playing the cards to protect that. So let’s start by playing President Trump’s hand against Congress, and then let’s play Congress’s hand against President Trump.

The Trump hand first. So, move one: Ignore subpoenas. Move two: Justice Department says We won’t help Congress enforce the subpoenas. What’s move three?

Rapallo: Well, I think even before move one, I mean, typically—it’s important to say this—I think that a lot of requests from Congress traditionally had been voluntarily complied with. I mean, that was the norm. There was a famous memo during the Reagan presidency that says, We’re going to try and accommodate any congressional request to the extent that we can legally. And that’s what’s changed. Now there’s, I think, much more of an obstruction type of view.

Now, I don’t think necessarily that’s going to be consistent throughout the entire administration. I think it’s one important thing—and I know we’re getting into the congressional side—but you’re going to be the last two years of an administration. A lot of the people in this administration may want to have jobs in the future. You also have the entire two-year Congress in the shadow of a presidential election. So those candidates on the Republican side who may currently be in the administration might have a different view than the president in terms of whether they should comply with Congress.

But to your question: Say they don’t respond to the voluntary letter for records or testimony. There’s an impasse; then the committee would issue a subpoena. At that point the administration would have to basically defy a subpoena, have some sort of reason for doing that based on a constitutional privilege, like executive privilege. If the committee doesn’t buy that argument, the committee can choose to hold the president in contempt and then go to the floor of either the House or Senate for that contempt vote.

Now, at the floor there are two options. And you’re talking about the first one, which is criminal contempt. Criminal contempt is a statutory provision. It says: DOJ shall present the criminal contempt from Congress to a grand jury. And that statute was passed in the 1800s. It was used for decades without any challenges by the executive branch. The U.S. attorneys would dutifully present these criminal-contempt citations to the grand juries and process them. That continued until about the 1980s. And in the 1980s, it was during the Gorsuch investigation that the House was conducting, where the DOJ said, We don’t think “shall” means “shall” in the statute. In other words, prosecutors have to have discretion to decide whether or not to go forward on a case.

And the traditional idea of this is: Prosecutorial discretion’s on the merits. So for example, in my old committee, the House Oversight Committee, we were investigating the IRS’s alleged targeting of conservative groups, and Lois Lerner was the official who came to testify. She took the Fifth, but then she kind of kept talking during her opening statement, so the committee concluded she had waived her Fifth Amendment. It got referred over to Department of Justice, and the prosecutors thought, You know, it’s too close a case. I don’t think we’re going to win this on merits. We’re not going to go forward. So that was prosecutorial discretion.

The second point DOJ made was: If a president asserts executive privilege over certain information, DOJ is not going to prosecute an executive-branch official over which executive privilege has been asserted in terms of the records or testimony at issue. So that decision by DOJ removed criminal prosecution in those two areas: either prosecutorial discretion on the merits or in cases of executive privilege.

Since then, it’s evolved into a free-for-all, basically, under the Trump administration. Now, it doesn’t matter whether it’s prosecutorial discretion; doesn’t matter if it’s executive privilege. DOJ can just refuse to prosecute for any reason.

So I think under the next two years, as far as criminal contempt is concerned, it’s not really a viable option.

Frum: Let’s start with a realistic scenario. So the Department of Defense—or the Department of War as it now styles itself, but the Department of Defense as it’s known in law—has granted a number of contracts to companies in which the president’s children have had interests. And so one of the questions that a new Congress might be interested in is: Were these contracts handled in an arm’s-length manner? Or was there some special favoritism or influence on behalf of the president’s children with the contracts? So Congress will say, We will go to the companies and DoD, and say, “We want more information about these contracts.” Play that scenario out. How does that game go?

Rapallo: Yeah, and we conducted a pretty similar investigation after the Iraq War during the reconstruction-contracting issues that were happening with the Pentagon.

Yeah—basically from a committee’s point of view, you’re going to make requests to all the parties, right? You’re going to make requests to the Pentagon, to the private contractors, to anyone else involved, and collect information from all of the sources. In this case, there wouldn’t be really an executive privilege. This isn’t talking about close advisers to the president giving him advice. If it did come into that, you could make an assertion there. But the rest of the information we received, in terms of contracts, we received reports from auditors. All the information that you’d expect to get in a congressional investigation we were able to receive.

Now, I don’t know under the current presidency whether they’ll comply with those requests. They might have an interest in just dragging this out: forcing Congress to go to court and litigate this in civil court, maybe.

But I don’t think that’s going to be uniform in terms of all the people receiving the inquiries from Congress, all the people receiving subpoenas.

Frum: So the companies, for example, might say: You know what? We got the contracts in the first place. But we have an eye to the future here. The company will be in business after 2029, and we think it might be in our interest to actually disclose to Congress what it wants to know.

Rapallo: Absolutely. And they also know that it’s completely legal and within Congress’s oversight responsibility. And so it’s going to be a loser, I think, in court, if it goes to that. And just like you say, they want to continue working for the government after the next two years are over.

They also might be a publicly traded company and have to report some of these things to their shareholders, which also may factor into their decision.

Frum: So President Trump, in the famous Mazars case, went to court to argue: I, as a president, or ex-president in that case, can block the companies I deal with from sharing information with Congress that I don’t want them to share.

How is your assessment of that kind of Mazars—if we can call it that—kind of Mazars strategy? How does that look today?

Rapallo: Yeah, that was an interesting case. Because—and I worked on that case—as the committee, we were actually trying to be mindful of what the court said to get information from other sources. So we went to the outside accounting firms to get information. What President Trump did in that case is, he sued Mazars—

Frum: The accounting firm—

Rapallo: Yes, exactly. To block them. And then the House intervened in that litigation in order to represent the House’s interests. So, I think using proactive litigation like that is definitely one of the tools the president has shown that he’s willing to use, and he could try it again.

Frum: How much of this is a legal game, and how much is a political game? And let me give you another real-world example.

So President Trump made his first post-reelection fortune by selling a memecoin. And he made a lot of money from the memecoin. The memecoin promptly fell to worthlessness, and many people lost their investment.

Some of those people probably knew that this was just a way of giving money to the president and aren’t mad that they lost their investment. But some of the people may have been genuinely duped and may be mad. If you subpoena those people, what happens? Would the president try to stop them? And is simply telling their story all that Congress needs? It doesn’t need further legal remedy; it just needs the world to see that President Trump pocketed a lot of money from a transaction in which other people are enormous losers.

Rapallo: Yeah, I think it’s both a legal and a political issue in that case.

From the legal side, there’s no doubt that Congress has a right to collect information, testimony, from anybody that it wants to in order to help inform the legislative process. And so it can definitely have those people come in, testify. It’s a pretty routine thing for committees to have victims come in and have a hearing just devoted to hearing them out. Hearing what their concerns are. So that wouldn’t be out of the ordinary at all. People would probably want to hear that.

Frum: Now, many of the people that Congress will want to learn more about, like, Corey Lewandowski at Homeland Security, who was apparently trying to intervene in government contracts. He was a special government employee. I think Steve Witkoff, the president’s envoy, whose family has been doing business in the region to which he’s a special envoy, both Russia and the Middle East.

What is the standing—if Congress wants to find out more about the business dealings of special government employees while they were doing whatever they were doing for government, how does that work? And are there limits? Or do you have more range with a special government employee?

Rapallo: I don’t think that the fact that they’re a special government employee makes a difference to the committees. The committees can get information from private individuals, special government employees, regular government employees, contractors: anybody. It’s up to Congress to determine what information it needs to do its job.

What might come into play is there was this—and you may be referencing this—there was the Justice Department opinion over the summer that purported to say that executive privilege could apply to people outside the government. And that was new. That hadn’t happened before. Normally DOJ only issues those kinds of opinions if they relate to a specific case or controversy or something that they’re dealing with. That one didn’t. That one didn’t have anything to do with a specific case at all. So to me, that was a tell, I think, that they think—at least they thought during the summer—that they have a very good chance of losing the House or Senate, and they were trying to get ahead of it.

Frum: Let me invite you to step onto the other side of the game for a moment—the president’s side. Some of the scandals, or some of the alleged scandals, in the Trump world don’t seem to involve the president or his family personally. So there’s a big—right now there’s a lot of reporting about money that flowed in and out of the Kennedy Center. There are accusations that some millions of dollars of that money have disappeared, and that’s acrimony between people who are in Trump’s orbit. But Trump himself doesn’t seem, at least at this point, to have received any benefit or any alleged benefit from these alleged transactions.

If you’re advising President Trump—and now think of this from that point of view, not the West Wing president, but the actual President Trump—do you say, You know what? Throw Congress some bones here. There are people you can sacrifice? Or do you need to defend everybody, because if any one of them talks, it could bring down the whole house of cards?

Rapallo: It’s really hard for me to get inside his head, just in terms of trying to predict what he’s done in the past. I’ve not been a great predictor of it. But, it’s really hard, because he has shown times where he would do both, right? He’s shown times where—I mean, this recent case where they called on the ambassador to Greece to resign. They were willing to do that. But in other cases, it’s been a blanket refusal—like during impeachment—a blanket refusal. No agencies will cooperate with this whatsoever.

I could see arguments going either way. I could see some people advising him, You know what? You’ve got two years. You can drag this out. You can wait it out. You can go to court. You can embrace civil litigation, to just go that route. But I think the counter to that is all of the other people in the Republican Party who are going to be facing reelection in 2028, including some people in his Cabinet potentially. If, in that case, if a committee sent a letter to Secretary of State about this ambassador to Greece, he might have a very different response to Congress than President Trump would, right? If he thinks he’s running for president, he might want to do something where it’s a little more forthcoming.

Frum: Let me ask you about something you said about the two-year deadline. Is that really the case? Because this present political dispensation may not be over in two years.

Let me give you an example of what I have in mind. So, there’s this plane that the United States Department of Defense has received on a temporary basis from the government of Qatar. And the terms of the gift, as I understand them, are: It’s to be used by the United States to fly the president around for two years, then it’s to go to the presidential library, whatever the presidential library is. And maybe the engine is taken out, like the plane in the Reagan Library. Or maybe it’s just, you know, a library asset that’s available for other members of the family to use who are on the board—board members of the library, or the former president himself if he’s on the board of his own library.

So that may be an ongoing matter. The Constitution says you can’t accept any gifts without the explicit approval of Congress, and I don’t know whether that would apply differently after the president leaves office than it applies before he leaves office. How does that story work itself out?

Rapallo: Yeah. Well, to your basic point, I think you’re right. That’s sort of the point I was trying to make with the Marco Rubio example—that this will go beyond the two-year period, even though some advisers might be telling him, You can wait this out for two years. There are going to be implications well past those two years.

On that particular case, it just seems like such an egregious and obvious example of a violation of the emoluments clause. He doesn’t have consent from Congress to do that. The question is, what can Congress do about it? And I know [Representative] Jamie Raskin has some legislation to kind of put some teeth into the constitutional provision to have a remedy, but the current Congress hasn’t shown any willingness to go forward on that. So it really will depend on what the makeup of the new Congress looks like.

Frum: How much time does Congress have? I mean, one of the defenses that the Trump people might have inadvertently put up is if you—let’s say you have hundreds of scandals, that many of them must necessarily go by the board. Because Congress doesn’t have the resources; doesn’t have the time. Is that a kind of defense? Can you simply give Congress information in some cases of the least damaging stuff? Flood the zone with lots of information about the least damaging stuff, and then play for time with the more damaging stuff—and just count on Congress’s desire for easy and early wins to protect the president from more dangerous lines of inquiry?

Rapallo: It’s an interesting strategy. Definitely—papering a committee with useless information is an old trick that a lot of agencies have used in the past. I think it’s going to be up to Congress to triage. I think you’re exactly right. There are so many scandals.

I mean, I felt this way in the first Trump administration: that there were so many things to focus on. We had to triage; we had to coordinate with other committees to make sure that they were covering things that were different, we weren’t having overlap duplication, that sort of thing. I think they’re going to have to do that even more this time around, because there are so many just blatant examples of violating statutes that Congress has passed. Reallocating funding to purposes Congress never approved. All of these things that you’re mentioning.

So triage is going to be really important.

Frum: Well, we say Congress as if it’s a thing, but there are two houses of Congress that often have unharmonious relationships. Within those two branches, there are many committees whose chairs have egos and agendas, and they don’t always get along. Even if Congress has more time than I just suggested, there’s certainly not infinite attention from the media, which is what members of the Congress are seeking. So can triaging work? Or do you just get train wrecks as chairs of committee battle each other for attention, for authority, for money?

Rapallo: I think triage can work if there’s coordination. Congress is like hundreds of different stovepipes coming out with each individual office member, each committee office, each leadership office. And so there really has to be coordination in the committees and across committees, and ideally across the Hill if both houses flip.

Frum: Who does the coordination?

Rapallo: Yeah, that’s the problem. So it’s got to be—

Frum: Who’s in charge of that?

Rapallo: It’s got to be leadership. It can be member-driven. I’ve seen both iterations of it. If you have two committees on either side, sister committees on the House and Senate being able to work together, that can be effective as well. But it does require some leadership in terms of just de-duplicating, right? You don’t want everybody focusing on one shiny object as it continues to change.

Frum: Well, depending on the numbers of new members elected, and who they are, the next Congress may start off with a leadership battle in both House and Senate. And that consumes a lot of time and builds a lot of acrimony and gets in the way of coordination. I mean, if Leader [Senator Chuck] Schumer keeps his job, but only after he’s had a lot of dissent from the left of the party, if there’s a challenge to [Representative] Hakeem Jeffries, how do you coordinate after that kind of fratricidal battle?

Rapallo: I thankfully came up under Speaker [Nancy] Pelosi, and she was very effective at sort of fending these things off. I think they do happen. Obviously, they’ve happened on the Republican side, and they do pose challenges in terms of time organizing different factions, that sort of thing. I think it’s just part of the system.

You just have to go through that process, get through the other side, and figure out where you are. That doesn’t mean that committees can’t be planning and talking to each other and organizing while that’s all happening. You know, the chairs of the committees are probably pretty set, although there might be a few outliers.

But during that same period, from November to January, it’s very dramatic in particular in the House, because the ratio of staff and budget is two to one, majority to minority. It’s a little different than the Senate. So when it flips, it’s really dramatic. The majority will let about half of their staff go. The minority will have to staff up in about two months, doubling their staff, while they’re also figuring out what topics they want to focus on, while they’re also moving offices, changing furniture, computers, the whole thing. So they really are—and they’re used to this—building the plane while they fly it.

Frum: Is there the depth of talent in the Democratic world to do that kind of staffing and to get the right kind of people who can do this? Well, it sounds like it’s going to be pretty laborious, forensic, number-crunching, legal-crunching to get to the bottom of allegation after allegation after allegation.

Rapallo: Yeah. I think you do have some really talented people. I think there are a lot of folks who are Democrats who used to be in the government, or used to be on the Hill, who are very interested in coming back. I would be completely surprised if the Democrats in the House and Senate weren’t at least having coffees with people to figure out who they were going to bring on, what expertise they need, and how they were going to structure their internal staff should things change over.

Frum: Compare and contrast the Senate and the House as investigative bodies. I think many of us have memories that some of the most sober investigations in American history were done by the Senate rather than by the House, but not in every case. What are the advantages, what are the disadvantages that each of those bodies has if there’s a Democratic majority in one or the other to do the investigation?

Rapallo: So I’m a House guy; I should just say that. I’ve never worked in the Senate. But from my perch on the House side, it seems like the Senate has much more power in terms of actual tools that they can use. We talk about how difficult it is without criminal contempt and being stuck in civil court for a long time, but the Senate’s got a lot of other tools that they can use.

You know—they can hold up nominees, they can filibuster bills or just hold them if they’re in the majority at this point. But they have tools that they can use to extract concessions to get information. And there’ve been plenty of examples of that happening in the past, where they’re using their tools not just because they might oppose certain legislation, but because they’re trying to get information out of the administration.

Now, with that said, my impression on the House side is that the Senate can be a lot slower, just in terms of being able to call a hearing or being able to conduct an investigation. The one body that is sort of their chief investigative body—the PSI, Permanent Subcommittee on Investigation—they do fantastic work. They have excellent people. Traditionally, they focused on primarily bipartisan investigations that are very in-depth, that may go more than a year or two. And they, at the end of that process, come out with a really hefty, meaty report and a hearing.

My experience on the House side is that it’s sometimes preferable to be much more agile and dynamic and be able to call a hearing very quickly—in order to get information and keep the drumbeat going in terms of getting even more information down the line.

Frum: You talked about the ratio of staff in House and Senate. Is there some objective limit on staff? Could the House say, You know what? This is a hornets’ nest that we’ve never seen before. We’re going to need 1,000 more investigators than we’ve ever employed before, and we want to employ 1,000 more investigators. Could they do that?

Rapallo: Well, not only could they do that, but right now the House and Senate are so far below their historic levels. They’re way below what they used to be in the ’70s and ’80s, and I think that happened at least on the House side in the [Newt] Gingrich era. He came in, and staff was drastically, drastically reduced to the point where there’s a lot of commentators who talk about not even being up to the level it used to be. How in the world is Congress supposed to be able to conduct oversight over this massive growing bureaucracy, with all of these different agencies, when they don’t even have the same level of staff they used to? I think there’s a really strong argument for not just going back to at least those levels, but for increasing significantly. And I think it should be a long-term bipartisan effort, not just related to the current circumstances we find ourselves in with President Trump.

Frum: I’m going to ask what may be a tactless question you will answer tactfully. You, as a longtime staff director—how do you communicate to the chairman of a committee or the chairwoman of a committee, You know, we’d get better answers if you talked less and let the staff do the questioning?

Rapallo: (Laughs.)

Frum: How does that conversation go?

Rapallo: I’m not sure I would ever say that to my boss. (Laughs.) But I had fantastic bosses. I mean, I worked for Henry Waxman, who was a pro, and I worked for Elijah Cummings, who was just fantastic.

Frum: Okay, let’s say it never, ever happened to you. But there are surely staff directors of whom it’s true that it would be better if the committee let the counsel ask the questions and the people in the big chairs kept quiet. How can that be done? Or is it just hopeless? They’re going to talk, and nothing can be done about it.

Rapallo: So, where this tends to come up a little more than, like, in a public hearing would be in a deposition, right? So depositions are held in private. They’re usually conducted by counsel. But members can come, and sometimes they do, and sometimes they want to ask a lot of questions. Sometimes those questions aren’t exactly on point. You know, it’s something—they just walked in the room, they had heard outside, something like that. The best tactic, I think, from a staff perspective, is to be able to explain to the members all the work that’s gone into prepping for that deposition, and how you’ve got, you know, 10 lines of questions you want to make sure that you get through. And if the member does want to come in, it would be fantastic if the member could focus on this particular line. And by the way, why don’t we go outside and we can talk you through it? We can walk through the elements of it, ideally beforehand, before the member comes in.

Frum: Well, in a deposition, there’s no TV camera, so I assume that’s an easier conversation. But in a room where there is a TV camera, it’s a tougher conversation.

Rapallo: Yeah; I think our practice on the oversight committee was to staff the members, was to give them the best staffing they could have. We would work on question lines into the night to make sure that they were not only well thought out, but they had key evidence, prepping exhibits, that sort of thing, so that each member would be ready.

And that developed—it started during the Waxman period, and it continued to develop, and it really paid off, because the members started to see the value in having those well-thought-through question lines.

Frum: President Trump, there’s a story, there’s a report out—I don’t know how valid, but it sounds right—that President Trump is considering massive in-advance pardons of maybe hundreds, maybe dozens, maybe hundreds of people as a way of immunizing them against being subpoenaed, or being asked to testify, or being held to any kind of account for things that have been done that were wrong. How does that pardon power intersect with the subpoena power?

Rapallo: Sure. So the pardon power pardons a crime, right? Or a potential crime. It prevents any later prosecution of the act that’s pardoned. It doesn’t prevent somebody from being subpoenaed to testify about information that they know. So, any witness who’s pardoned would still have an obligation to comply with a congressional subpoena to come up and testify.

Frum: It protects them from punishment if they defy a subpoena.

Rapallo: It can only do that if the act has occurred. It can’t pardon a future crime. So, at the end—say, what I think you’re getting at is, say somebody refuses to testify. At the end of the Trump administration, that’s where the pardon could come. There couldn’t be any later prosecution of that act.

But there’s nothing to prevent the next Congress from recalling that person and asking them to testify again, sort of like the January 6th committee did. A subsequent administration brings people in, and there can’t be a future pardon for that act.

Frum: So that suggests that the pardon is a less potent tool of stonewalling than it seems. But is that a comfort, or is that a realistic theory, or is it actually a more potent tool than that nice summary suggests? Think like a stonewaller for a minute.

Rapallo: I think it will give people comfort if their idea is to stonewall for this two-year period. I don’t think it will protect people after that two-year period. But then maybe they roll the dice and think, The dynamic will be different then, and maybe Congress loses interest in me. Or something like that.

Frum: All right. Now let me ask you a question taking us beyond 2028 and 2029.

So let’s say there are—not everyone has been pardoned, and there are lines of questioning, and there has been stonewalling, and there are subpoenas that have been defied, and there’s a new president, a non-Trump-protective president in 2029. Maybe even a Republican non-Trump-protective president. How much of its energy, its mandate, will a new administration want to give to resolving these matters from the past? Is there a risk that, as I think happened in the Biden administration, the president says: You know what? Let’s just let bygones be bygones. I’ve got things I want to do. History can take care of itself?

Rapallo: Yeah, I think there’s always going to be that discussion. And it’ll happen with the members as well, members of the House and Senate. Do we want to look backwards? Do we want to look forward? And I think a lot of that will depend on the dynamics of policy. Like, Could we actually now use our majorities and a like-minded president to get some of our policies into effect? If that’s the case, there’s going to be less focus on the past.

However, given the really unprecedented nature of the Trump presidency, one of those policy goals might be a complete reset on accountability, right? And passing laws that can re-reestablish some of the safeguards that norms were doing the heavy work for before. So that could be one of the policy agenda items going forward. And as part of that, you may want to include or continue investigations into those topics.

Frum: Do you have a view on whether we need institutional or even constitutional reform? Some way to make the Department of Justice more independent of the executive of the moment? Some constraint on the pardon power to make sure it’s not used corruptly? Or is that just idle speculation and beyond the realm of real-world politics?

Rapallo: Well, it’s—yes, I do. I think the previous notion of DOJ being semi-independent had always been taken seriously, and now I think that’s basically gone. Can a future president restore it? I’m sure that some will want to try, but now the damage is done, right? You know it can happen again. Or can you impose some safeguards? I’m not confident with the current Supreme Court, that they would sort of allow true independence. I think Congress would have to work through all the details of the U.S.-versus-Trump case, and all the cases involving the appointment power and that sort of thing. But I do think Congress could make a change.

David Frum: Because I want to test a theory, and you tell me what you think of this.

So in the 1970s, we saw a big expansion of the regulatory state and the creation of a lot of new kinds of regulatory bodies, and big delegations of power from Congress to the president from everything from the environment to civil rights to trade policy. But Congress in the 1970s said, But we have a safety belt here, which is: If we’ve got a provision in this law that if these delegated powers, the powers we’re giving to the president, are abused in any way that we don’t like, we can veto it. And Congress can say, No, no, not that. Don’t issue that regulation. Don’t take this action. You, your delegate, we can withdraw the power that we have delegated.

And the Supreme Court in the 1980s said that that congressional veto is unconstitutional—Congress can’t do that.

But the delegations did not get voided. Congress delegated a lot of power thinking it had a safety belt, and the safety belt is taken away, and the delegations are all still there. And these bodies are all supposed to work in ways that—but they were all premised on a mechanism that no longer exists. And we’re kind of in the ruins of that system. And maybe it’s all unfixable without finding some way to either get the congressional veto back, or withdrawing the delegations that were premised on the congressional veto. And forgive me if that was unclear to anybody who’s listening or watching.

Rapallo: No, you’re absolutely correct. You described that really well. In fact, I have a colleague here at Georgetown Law, Josh Chafetz, who’s written an article about this exact topic, pointing out that the Supreme Court in one of the cases was Chadha. This is—“The Chadha Presidency” is the title of his article, because the veto power was taken away, but all of the grants of authority the court let stand. And not only that, in order to take those back, Congress would have to pass a new law that would have to overcome a presidential veto—which wouldn’t have been the case if they had just invalidated the entire law. So it’s actually harder to repeal the delegations than it would’ve been otherwise. So you’re exactly right the way you described that.

Frum: Any brainwaves as to what’s the exit from this box of delegation, without a safety belt?

Rapallo: Well, I think the appropriations power has got to be the linchpin to that. It’s a core congressional power. There have been a lot of discussions about how to use that power more effectively. Part of it also will be staffing up in Congress: increasing staffing levels so that the staffers have the expertise instead of delegating a lot of this to the agencies under the Chevron-type doctrines.

But I think the key, from my perspective as a congressional investigator, is information. Access to information. I mean, without information you’re legislating in the dark. You can’t adequately monitor current programs. You can’t do all of the functions that the Constitution requires Congress to do in an informed way. And the Supreme Court has said this over and over again, that each house is supposed to have its own independent power to demand information and then compel that information. And that, to me, is one key thing that’s really atrophied over the last several decades.

Frum: Well, so let’s end our conversation on a hopeful note, for any young lawyers listening. If you’re worried that AI is going to devour your job in document review or contract approval or anything like that, the Congress is going to be hiring very large numbers, it sounds like, of legally qualified people. So there is a job for you that looks likely to survive the AI revolution, at least for the next two years and maybe beyond.

Rapallo: Exactly. Yeah, I think there will be a lot of hires if you’re—and also it’s just a fantastic place to work. You know, as a lawyer, sometimes you might represent an individual, which can be critically, critically important. Could be a life-or-death matter. But for Congress, you get the chance to really think about the interest of millions, if not hundreds of millions, of people.

Frum: Thank you, Dave. Thank you so much for making time. I know how in demand you are, and I know how much more in demand you’re likely to be in the coming weeks. So I’m glad we got in under your wire. Thank you so much for joining me on The David Frum Show today.

Rapallo: Thank you for having me.

Frum: Bye-bye.

[Music]

Frum: Thanks so much to Dave Rapallo for joining me today on The David Frum Show.

As I said at the top of the show, this week’s book is I, Robot by Isaac Asimov. I need to make clear here—I, these days, am not a big consumer of science fiction. I read a lot of it as a boy, but that’s not why I return to it now. I return to it now because it’s becoming kind of obvious to me that just about everybody with a major view on the looming AI debate that is going to matter so much in the next Congress has had a lot of their views about the AI revolution formed by a combination of Isaac Asimov and Ayn Rand. Ayn Rand we’ll save for another day; Isaac Asimov for today.

I, Robot was published in 1950. But it’s a collection of short stories, not a novel: a collection of short stories that Asimov published in his 20s between 1940 and 1950. Now Isaac Asimov, if you’ve not heard of him, was a kind of prodigy. He became one of the world’s influential and famous writers still in his 20s. He’s a clever writer, an ingenious writer, kind of an attractive writer. He had a kinda technological optimism. He was also—I don’t mean this in a disrespectful way—but he was a kind of shallow writer. He had a very limited emotional range. I think there was something missing from his makeup, that he had a few emotions—but the full range of human experience, he never really entered into that. And that was both his strength and his weakness.

The stories in I, Robot describe a series of situations in which human beings find themselves interacting in the future with highly capable robots. Often quite human, human-looking robots. And along the way, Asimov coins a series of rules that he calls Asimov’s—or some people have called—Asimov’s three laws of robotics. Asimov always gave credit to the editor of the science-fiction magazine in which he published the stories for actually formalizing the rules, but the rules are attributed to him, and it doesn’t matter who the ultimate origin is. They’re in his stories. And here are his three rules. And if you’re a science-fiction fan, you probably know them by heart.

The first rule was: A robot may not injure a human being, or through inaction allow a human being to come to harm. Second: A robot must obey orders given by human beings, except where such orders conflict with the first law. And the third rule: A robot must protect its own existence, so long as that does not conflict with the first or second law.

Now, these three rules, or three laws it should be said, are not laws in the sense of some kind of worked-out code. They’re dramatic devices, because actually they can’t all be reconciled. And the interest of the short stories in the I, Robot collection comes from watching the conflict and impossibility of these three rules work themselves out.

But I keep getting the feeling that there are people who have enormous power over all our lives who regard I, Robot as a kind of like the Bible or Book of Mormon or Quran, or something that they can actually deduce real life, real-world life by, and live by. And not only live for themselves, but live for the rest of us.

So it needs to be stressed that you should go back and read these things to understand that the whole point to the three laws in the short stories is that they don’t work. They lead to constant surprises.

Now, because Asimov is a basically optimistic person and, again, kind of a shallow person with a limited range, the conflicts and the consequences of these rules not working is never too terrible in the short stories. But the book that he set himself to refuse, to write against, the book that’s looming in the background of all of these short stories, which is Mary Shelley’s Frankenstein. That book—which is the real book for our age, the real inspiration—that book reminds us the happy endings promised by Isaac Asimov are not necessarily the truth, and are not necessarily the conclusion we’d come to if we thought deeply about the era into which we are moving.

That’s it for this week’s David Frum Show. Thanks so much for joining me today, for watching, and for listening. As always, the best way to support the work of this program, if you’re minded, and to support all of us at The Atlantic, is by subscribing to The Atlantic. I hope you will consider doing that. See you soon here on The David Frum Show. Bye-bye.