• American Governance Institute

00:00 Introduction: Inside the new Congress 01:49 Why the outgoing Congress stays in power 03:39 Shutdown deadlines and last-minute Supreme Court appointments 07:16 Learning the job: How new representatives are inducted 10:40 New Congress, new House rules: An opening for reform? 15:32 Who runs the House? The Speaker, committees and members 19:50 The Democrats’ internal battles: Factions, leadership and reform 23:10 What powers can Congress use against Trump? 26:09 Ukraine funding and the limits of impeachment 27:35 The power of the purse: How spending deals get made 30:07 Investigations, subpoenas and officials who refuse to cooperate 33:40 Investigate or legislate? Delivering the Democrats’ agenda 36:54 Immunity, pardons and running down the clock 40:03 Can America’s checks and balances be repaired? 43:46 Blocking nominees and debating Supreme Court reform 47:08 A crisis moment: What happens when presidential power defies the rules? 48:00 Our next episode: Baroness Kidron talks about her work at the centre of parliamentary efforts to regulate the online world

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Intro: [00:00:00] You are listening to Parliament Matters, a Hansard Society production, supported by the Joseph Rowntree Charitable Trust. Learn more at hansardsociety.org.uk/pm.

Ruth Fox: Welcome to Parliament Matters, the podcast about the institution at the heart of our democracy, Parliament itself. I'm Ruth Fox.

Mark D'Arcy: And I'm Mark D'Arcy. And coming up this week ...

Ruth Fox: After the Democrats triumph in the latest US elections, will the new Congress be able to put a break on President Trump?

Mark D'Arcy: With the UK Parliament in recess at the moment, we talk to congressional expert Daniel Schuman about how a Democrat dominated legislature can take on the man they see as a rogue president.

Ruth Fox: And we probe the mysteries of how a new Congress sets up shop for two years of intensive lawmaking and politicking.[00:01:00]

Mark D'Arcy: Well, Ruth, we're recording on the 5th of November, but the real fireworks have come in America, where the voters have delivered a devastating verdict on President Trump's Republican Party. He's still in the White House. He's still commander-in-chief, still in charge of US foreign policy, but he now faces a hostile Congress determined to reign him in.

Ruth Fox: But under America's checks and balances and separation of powers between the executive and the legislature, that's gonna be no easy task. So for this special episode, we turn to Daniel Schuman of the American Governance Institute in Washington, DC. That's the American equivalent of the Hansard Society, and Daniel's a regular listener to this podcast.

So we asked him for his analysis of what happens next. And I should say before we start that occasionally the line to Washington was, well, a bit iffy, so the sound quality is not always perfect.

Mark D'Arcy: Daniel, welcome to the pod. We, we're very keen to tease out the many differences between the way the US system works as compared to the British system.

And one of the things that I think a lot of Brits find [00:02:00] particularly strange and particularly different is the idea that having had an election, the new politicians don't immediately take their seats in the legislature. You have a period where the politicians, often the ones who've just lost, are still in office in what's known in the trade as a lame duck Congress. How does that work?

Daniel Schuman: It doesn't work all that well, as it turns out. Um, we used to have actually a longer lame duck process, both for the presidency and for Congress. It is shorter than it used to be, but it's still about two months. The election just happened early November, and the new members of the House and Senate will be sworn in in January.

So the old folks are still in power and in office, although you will see several interesting things start to happen. One is all of the things that they wanted to do during the last two years that they were unable to do because they were afraid of the election, well, the election is over. It is no longer a constraint on the things that they might want to do.

So if there are bipartisan efforts that have been held up because maybe [00:03:00] you'll give someone in the other party something to run on, that is no longer an issue. In, uh, matters that were very partisan, that you could only ram through, uh, in such a way but would cause a significant reaction, they will try to move that legislation as well.

There is a third factor, of course, which is that a number of members, since they're not coming back in January, their interest in this whole process, it turns out, has started to decrease.

Ruth Fox: Yeah.

Daniel Schuman: So their willingness and ability to show up Will create significant problems and in a House of Representatives where there's only a one or two member majority, that majority starts looking thinner and thinner and thinner.

So we will have a disappearing Congress. At the same time, the Congress has set up, um, an appropriations fight, a fight over spending that will happen in early December. And if they don't pass this continuing resolution, this appropriations bill, our government will shut down, which will be nice and well-timed, uh, as a nice gift for the incoming Congress.

Mark D'Arcy: One of the things that there's been a bit of chatter about [00:04:00] is the idea that the president might try to nominate some new Supreme Court justices in the lame duck period while the Republicans still have a majority, because there are a lot of fairly elderly Supreme Court justices, and they don't want to have to try and get a new nomination past a Democrat Congress later on.

So you try and rush, persuade someone to stand down now and rush through a replacement while the going's good. Is that feasible? Is that something that people might feel, hang on a minute, we've just lost a mandate, no, maybe we shouldn't do that?

Daniel Schuman: Well, so you, you asked two very different but important questions.

Is it feasible? Could they do that? Is it technically possible? And the answer is yes. The Republicans, uh, when Mitch McConnell was the, the leader of the Republicans, in fact did do that. It was not just a breach of good manners, it was destructive to the operations of the Senate. The Republicans could try to do it again.

You could have a Supreme Court justice say that they are going to stand down upon the confirmation of a replacement, and the Senate could [00:05:00] try to do this. Uh, the current margin is 53 to 47. Uh, strangely enough, our Senate has 100 members. I don't know why we ended up at that number. That's just twice the number of states, but it is possible.

But one, there is a senator from Ohio who was serving on an interim basis, and that senator is going to depart sooner before this January, uh, probably by the middle of December. So there will be a Democratic pickup there in Ohio. So the Republican margin will decrease from 53 to 52 in the next month or so.

But also it takes a tremendous amount of time on the floor of the Senate. So all the time that you spend trying to deal with confirmations of Supreme Court justices are times that you can't spend dealing with the fact that the government may shut down or that you haven't passed a bill to authorize the military.

And there's also a number of, I hesitate to use the term moderate, 'cause moderate is not the right word, but less conservative Republicans or maybe more institutionalist Republicans [00:06:00] who may not be as excited to go along with this process. And there are several members who are, what's the polite phrase?

In poor health, shall we say? Non compos mentis might be more accurate. Um, but there are several members who, because of physical or mental debility, would not be able to fully participate in the process, such that it might be harder and harder and harder to actually move a justice through the process. So is it technically possible?

Yes. Is it likely? No.

Ruth Fox: Why is that member from Ohio standing down early? Is that a particular requirement or is that a personal decision?

Daniel Schuman: Neither. So when, um, vice president was a member of the Senate, and when he left to go bec- serve as vice president, they had to appoint a replacement, and that replacement is only for a two-year period.

That period of that appointment ends on December 10th or 15th or something to that effect, I think it's the 15th, so that the new senator needs to be sworn in on or [00:07:00] about the time that the old senator has departed. We actually have two senators that are replacing either a member who has deceased or has gone on to higher or other office.

So you have this replacement process that is in effect for two years until a, an election can be held.

Ruth Fox: Hmm. Interesting.

Mark D'Arcy: And the other thing that's going on in this kind of interregnum between the election and the new members of the Senate and the House of Representatives taking their seats is a lot of induction training, which is something that you simply don't really have in Britain, or at least not in the formal way that you seem to have in America.

Both the parties and various institutions run training sessions that most of your new incoming politicians go to. Is, is that correct?

Daniel Schuman: It's correct for the House, but not for the Senate. The House will be starting new member orientation very soon. It is a bipartisan process that takes months and months of planning, um, by the Committee on House Administration.

And, uh, this is intended to provide basic orientation to new members, [00:08:00] things like how do you hire staff? In the House, you will have 18 staffers that you will have to hire. How to run that office. How do you manage your member representational account, which are the funds that you receive? How do you set up a constituent service?

I think you call it a surgery, right, where you, you provide support to your constituents. There is some training around introduction to the basic parliamentary offices. What is the Library of Congress? What is the Government Accountability Office? So there's that level of basic orientation for people who have never served.

The Senate doesn't have anything like this, so we will have a number of new senators, perhaps up to 20 new senators. They will not be oriented, so they will wander around disoriented for quite a while. But even with the House process, it is short. It is run on a non-political basis. There will also be political trainings that are done by the parties.

Uh, but those trainings are how to be a good soldier, not so much how to exercise power. And there will be outside entities that will also try to provide [00:09:00] orientation to the new members. Uh, some of them will be run by advocacy groups, and there's also academics like the Harvard Institute of Politics will do a orientation program as well, which can be of Varying quality and varying purposes.

Ruth Fox: And that programme at the Institute for Politics at, at Harvard, uh, Daniel, that, that's been controversial in the past. So the idea is that, you know, you take them to Massachusetts, you sort of all sit them in a room together, and they meet experts and learn about some of the sort of big political foreign policy issues, economic issues that the country's facing.

It got a lot of criticism last time, including from, uh, from AOC, Alexandria Ocasio-Cortez. Uh, she was not happy with it.

Daniel Schuman: And so it has received criticism over time. As it turned out, and, and this was a little bit further back in time, this is when she was first elected 10 years ago or eight years ago.

Ruth Fox: Mm-hmm.

Daniel Schuman: It turned out that all the presenters, uh, or many of the presenters were people that were well connected to corporate interests, and they didn't have interests representing [00:10:00] labor or civil society. Of course, when you run any program like this, you need to see, you know, the first rule that we learned from Watergate is follow the money, and the money here that was supporting the work was coming from well-heeled interests, and that led a certain cast to the nature of people that were in the room that were- Mm

meeting with these future members of Congress. So when you set up an orientation program, it is important if you're trying to do it on a nonpartisan basis to make sure that you're not privileging particular well-heeled interests. You know, the, the Musk Institute of Congressional Studies is probably going to have a particular perspective to it, one might say. So you can run into challenges here.

Mark D'Arcy: And the next thing that happens is when the, when the new House of Representatives in particular is assembled, what I hadn't realized, and despite of, uh, decades watching and rewatching The West Wing, is that when a new Congress opens, it has to adopt its rules.

It doesn't just start, you know, the, in Britain you'd slap down a copy of Erskine May on the table [00:11:00] and say, "These are the rules- Mm ... you must follow." Mm. In Congress, they actually have to adopt a whole set of rules. Now, they may be very similar to the last set of rules, but they don't have to be, as I understand it.

Daniel Schuman: That's entirely correct. So the House and Senate, of course, are different bodies. The House of Representatives at the start of each new Congress must adopt their set of rules. The Senate considers itself a continuing body, which means that it does not adopt new rules. It continues the rules from before.

And in fact, it is almost impossible to adopt new rules in the Senate. So what the Senate does instead of adopting new rules is it simply reinterprets the rules that it currently has in a process that is politely known as going nuclear, which tends to make people generally unhappy. Particularly if they're too close to the blast.

On the House side, there's chamber rules, which is what we're talking about, but there's also a party rules process that happens before that. But let, let me try not to confuse the issue too much and stay to, to where you are. So the, the House of Representatives will adopt new chamber rules generally on the first day.

They're not required to do it on the first day. Uh, it's the second order of business. [00:12:00] You, you elect a speaker and then you adopt the rules. Uh, last Congress, we never really got past step number one for a week or so, where we kept circling back to trying to choose who the speaker would be. And the chamber rules can change significantly.

They do take the rules from the prior Congress, and they make a number of changes to them, uh, that sometimes it's bipartisan, sometimes it's not. One thing that I found when I've spoken, uh, with folks around the world, this is a fairly permeable process. I myself have made recommendations for changes in the House rules and seen them put into effect, so it is possible to do things.

Mark D'Arcy: What sort of things are we talking about here? What, what would be the things that you change?

Daniel Schuman: The creation of a House Modernization Committee, uh, was done through a change in the House rules. The creation of the Office of Congressional Ethics, which is an independent watchdog, was done through the rules.

The whistleblower ombuds, which is an office that helps take in outside, um, concerns. The modernization of technology. We made it so that the paper [00:13:00] documents are not the only indicia of validity, but you can actually use, I know in 2026 is a crazy thought, but we can use electronic documents. Uh, we provide electronic notice of when hearings and markups are taking place.

It prohibited former members of Congress who have become lobbyists from having access to the chamber floor. And my personal favorite over the last 20 years, it prohibited members of Congress from having relations with staff under their s- direct supervision, which you would not think would need to be a rule but it turned out that it did. It did.

Ruth Fox: I like the idea of having a process at the start to adopt new rules, and, and people, uh, like yourself, Daniel, uh, perhaps the Hansard Society being able to influence, uh, i- influence those. Is there a problem, though, that you've got so many incoming new members? How do they know how the rules have worked, what changes they ought to have?

I mean, it's, it's quite difficult if you, you, you're coming into a process, a new sort of job of work, a particular role as a, a legislator and a scrutineer. You're setting rules [00:14:00] before you've even done the job.

Daniel Schuman: The short answer is you don't. You have absolutely no idea. The reason why you adopt the rules at the beginning is because most members will have no idea what they're voting on, and thus they're going to vote for whatever leadership puts forward.

One of the jobs of my organization at the American Governance Institute, we publish, uh, a weekly newsletter. It's not as good as what you put out, but it's a weekly newsletter called The First Branch Forecast, which is intended to educate members of Congress and their staff about how the chamber works now and how it's worked in the past.

Uh, we put out rules recommendations, both on our own and on a bipartisan basis, for what the chamber rules should look like, and we've engaged in advocacy around that. Uh, we've done trainings for new members, talk about new member orientation. We've, we've spoken with both new ones and ones that have been around for a while to help them advance problems they have.

So one problem that members have is that the calendar for the House operations is really brutal. It's three days on, two days off. It's a big country. Fly in [00:15:00] and fly out. They don't like that schedule. They want to change that schedule. You can change it through the rules, but you have to get enough members together and realize that this is a problem in pushing leadership to be able for them to exert control to change the operations.

So right now, unfortunately, it relies on organizations like mine, and presumably like yours as well, to make recommendations and to build coalitions and to help members be able to take control over their chamber, because they largely, they largely don't know how to pull the levers of power.

Mark D'Arcy: Now, you described earlier on the very first thing that an incoming House of Representative does is elect its speaker.

In the UK Parliament, the speaker is someone in a robe who's a neutral chair of proceedings and makes procedural rulings. The Speaker of the House of Representatives is a much more powerful figure than that, can almost be at, at times, uh, almost a domestic prime minister kind of figure in opposition to a weak president.

It's happened from time to [00:16:00] time. So talk us through the powers and abilities of the Speaker of the House of Representatives.

Daniel Schuman: That's a great question. The powers of the Speaker of the House of Representatives has changed tremendously over the last 250 years. At times, the speaker has been called a czar and has been the most powerful person in the chamber and has run the chamber.

There was a period of 20 years, from 1890 to 1910, where three people were responsible for the operations of the House of Representatives. We've also had periods of time where the speaker is so weak that they, they don't matter. We had a period of time where there wasn't even a speaker of the house in any meaningful sense.

The modern era, by that I mean since the mid-1990s, we have had very powerful speakers. Uh, it started with, uh, Newt Gingrich, and the way that they became powerful was by cutting out the power of everybody else. When Speaker Gingrich came in, he removed one-third of the pers- of the committee staff He eliminated the Office [00:17:00] of Technology Assessment, which provides science and technology advice to Congress.

Who would think that you would need that in this modern era, right? Uh, got rid of, uh, a third of the staff of the Government Accountability Office, which is the government watchdog. Same thing with the Congressional Research Service. Pulled much of the power into the hands of the speaker's office and away from the rank and file.

There has been ongoing fights about where power should be distributed. There are three major mechanisms of how power is exercised in the US Congress and I think in many parliaments. One is control over who gets elected. Uh, the second is control over who writes the legislation, and the third is what legislation, uh, goes to the chamber for a vote, what's being voted on.

And where that power has been exercised in the US context has changed tremendously over the decades. Sometimes, uh, that power is exercised by the speaker, sometimes it's been exercised by the Rules Committee, sometimes it's exercised by committee chairs, and at times it's been rec- organized by the rank and file who have organized into [00:18:00] factions.

In the current moment, that power is largely exercised by the speaker's office. Uh, they control the Rules Committee, which is the mechanism by which legislation goes to the floor, and they control, through their party organization, the caucus, they control who gets appointed to the committees through their Steering and Policy Committee, which is a super secret committee that governs who gets to be on what committee under what circumstances.

So through control of these mechanisms and control over where money goes, so do you have enough staff to help you? Can you organize sufficiently? Uh, this power has largely moved into the hands of the speaker. But this is where things get more interesting. In the House of Representatives, we've had five different eras of control of the House, control by the members, control by the committees, control by the czars, which were the very powerful speakers.

This has started to break down. We're seeing more and more discharge petitions being successful, which routes around the Rules Committee. We saw the [00:19:00] prior speaker who was deposed. We saw rank and file being able to put people onto the Rules Committee, which is something they could never do. So our system of centralizing power in the hands of a speaker, it seems to be becoming unstable.

And there's a corollary to this, which seems to be the more power you put in the hands of the speaker the weaker the Congress is vis-a-vis the White House. I don't know why that is, but there seems to be a relationship between the two. So if you want a strong Congress that is capable of checking the executive branch, you don't just want a couple people making the decisions.

You wanna distribute the capabilities and make use of as many members in the committee process as you can. And we seem to be starting to move back in that direction, but we will know more in two months when the new rules for the chamber are adopted.

Ruth Fox: And are you expecting with this, this incoming Congress, we assume that there won't be a repeat of the issues with the, the last election of the speaker when Mike Johnson [00:20:00] ran into so many difficulties, and they had goodness knows how many rounds of voting before he eventually, uh, secured his position.

We're expecting Hakeem Jeffries, I think, to be speaker in, in, in the new Congress. But are you anticipating quite a number of reforms to both the chamber and the party rules? Because, you know, the last time there was an electoral wave of this scale was, people are saying it's 1974 in the aftermath of Watergate, and actually after that, there was a period of quite significant changes in, in the procedures.

Daniel Schuman: If you had asked me that two days ago, I would have said yes, that there will be significant changes. To control the House of Representatives, you need 218 members. The Democrats may go all the way up to 260, but it's worth remembering, of course, that the Democrats, like the Republicans, are not unified.

Underneath the party is faction And we don't talk about faction that much, but within the Democratic caucus there are a number of factions. There are the progressives, which are more to the left. There's the, the new [00:21:00] Democrats, which are the... Think like Bill Clinton or Tony Blair. And then there's the Blue Dogs.

They used to be the Southern Democrats. I guess they will once again be the Southern Democrats now that we have them again. These are very conservative Democrats, and there will probably be 20 Blue Dogs up from four or five. There'll be 130 progressives up from around 100, and the remainder, which is 140, 150, please don't check my math, but it's somewhere in that ballpark.

Well, within... And, and not just within the Democratic Party you have something that's different from the Republicans, is you also have, we call it the tri-caucus. It's, it's the, the Black Caucus, the Asian Caucus, and the Latino Caucus, right? And each of these exercise power as well. Their exercise of power is built around affinity and helping each other to attain power, less around ideological, uh, ends.

So this is the I'll help you, you help me type of group, and Speaker Pelosi's power, for example, is built on the Congressional Black Caucus because they made a [00:22:00] deal. You use the seniority system so that we can rise to become chairs. In return, we will support you to be the speaker no matter what. And it is unclear to what extent those arrangements will continue into the new Congress.

But we expect to see both jockeying among these factions for power against one another, but sometimes some of them actually have a good idea that maybe they want to have more power and not be a supplicant to leadership, and they will sometimes work together to hold up leadership for powers that they wanna have for their members.

And if that happens, that will be very interesting.

Mark D'Arcy: And I suppose with so many new faces in the House of Representatives particularly, nobody really quite knows how that's gonna gel.

Daniel Schuman: No. I mean, most... These new members are foot soldiers, right? They, they are not going to be the ones who will be organizing for the most part these efforts, but there are members that have been around for a while, members that have helped them get elected, that campaigned for them, that gave money to their campaigns, that they will have a patron-client relationship with to some extent, [00:23:00] and they may help organize them to push for matters that they would like to see happen.

So that is, that is eminently possible.

Mark D'Arcy: Now, one of the things that's completely unfamiliar to a UK politics watcher is the idea of a government that doesn't have a majority in its legislature. To, to run the UK government you have to have a majority in the House of Commons pretty much, or be able to sustain one somehow even if it's cobbling together different factions.

In the US Congress you can have, and now do have, a situation where there will be majorities in both chambers who are against the president who's still running the government. And I suppose the question then arises, how do the Democrats when they are finally seated in the Senate and in the House of Representatives going to try and jerk President Trump's chain?

What power do they have over him? How might they use it? Can they fight him to a standstill, or is the executive in America so powerful that Congress can only really [00:24:00] tinker at the edges of what it's doing?

Daniel Schuman: Congress, when it exercises its power, is the most powerful branch of government. Through the power of the purse, the ability to spend money, hold money, they can direct the executive branch to do or to forego all sorts of, uh, behaviors.

They can defund agencies. They've u- This is how we stopped the Vietnam War, right? It it is possible to do significant things through, in particular, the use of the appropriations process. But this requires that the three branches operate in a lawful manner, that the White House does not spend money in violation of law or does not withhold the spending of money as has been directed by law.

It requires the courts to enforce this to some extent. It requires the Department of Justice to try to color within the lines. And the Trump administration, more than I think any other administration in American history, does not believe in the rule of law. They believe in the [00:25:00] rule of a single man, and we have seen this through efforts to rescind funds that have been appropriated by Congress in an unlawful way, including the use of pocket rescissions.

We've seen this through the use of impoundment, which is also not lawful. We have seen this through political prosecutions of the president's enemies and a number of other issues. So to the extent that we operate in a lawful manner, the US Congress has tremendous power because they can simply say, "I'm sorry.

We are not going to allow you to spend any funds in support of this particular activity that you want to do. So you want to engage in war in Iran? Well, we have said that you can't do that, and we are going to force you to draw down on our timetable. We have said that we disagree with your use of tariffs.

Uh, we are going to prevent you from using those authorities, or we're going to try to pass legislation to hold you up, to prevent you from doing so." And then in theory, although not in practice, should the president veto such a measure, the Congress would be able to override a veto [00:26:00] But this administration is not operating in a lawful fashion.

So the question is, what do you do when people are no longer following the rules? And we don't really have a good answer for that

Ruth Fox: To give an example that was of great interest over here, I mean, could, for example, the Congress say, "We actually want to restore funding to Ukraine, to the government in Ukraine to support them against Russia"?

And the White House and the Pentagon don't want that for their own particular reasons. Mm-hmm. Could Congress force that through and ensure that the transition of money to the Ukrainian government happens, or could the president just veto that or h- how would that work?

Daniel Schuman: Yes to both of your questions. So this is what got Trump impeached the first time around, where Congress had directed funds to Ukraine and the president refused to spend them as required and then tried to engage in an extortionate scheme with the Ukrainian leader to try to discredit Joe Biden in some fashion.

That is what [00:27:00] got the House of Representatives to actually impeach. So, and I should say impeachment is the recommendation for removal. It requires a majority of the House. So impeaching the president, you know, the recommendation is easy. The Senate has a higher threshold to actually remove. It's two-thirds.

And Senator McConnell, who was the Republican leader at the time, undermined the impeachment process for President Trump, refusing to allow convenings to take place along those lines and failed to remove him. So impeachment is possible. We probably will see to other questions you have, other officials may get impeached, which is a very rare process.

But let's talk about appropriations. I spend a lot of time working with Congress on appropriations. It's, it's... Oh, Ruth, what is it that you like? The, the delegated authorities? But it's, it's- The

Ruth Fox: ...delegated legislation, my favorite subject

Daniel Schuman: Yes, your favorite subject. So this is your

Mark D'Arcy: favorite subject.

Daniel Schuman: Th- this is, this is my favorite subject.

Appropriations generally works on a bipartisan basis in the Senate because to get past a filibuster in the s- in the Senate, it [00:28:00] requires 60 votes out of 100 to be able to proceed. So the Democrats and Republicans usually work together in the Senate to craft the appropriations legislation. It starts in the House.

Sometimes you write a more bipartisan bill, sometimes you write a more partisan bill. It passes the House. They have, by Constitution, these bills have to originate in the House. They go to the Senate. The Senate, well, makes significant changes that the House is usually very unhappy with, but generally has to swallow.

They'll reach an agreement. There are 12 appropriations bills because why have one when you can have 12? The subcommittee chairs are known as cardinals because the appropriators think they have a sense of humor. Um, and, uh, they, they work these bills together and they present them as a package or, or partial packages to the White House and they say, "Do you want to fund the military? Well, you have to fund, um, health as well. You know, take it or leave it." And the White House, as a general rule, will take it. What will Trump do? Who knows?

There is no [00:29:00] way of knowing the answer to that question, but in a less abnormal presidency You know, the president may veto at times, but Congress will generally get a lot of what it wants in the appropriations process.

So to your question, if Congress wanted to restore funding for Ukraine, it would put it in an appropriations bill that has other things that the president wants and it would try to jam him to make it happen, and their assertiveness will depend on the composition of the members and whether they are of the same party or of a different party with the White House.

Mark D'Arcy: So we're heading for quite a big trial of strength here, first of all.

Daniel Schuman: Yes, and very soon. There's the continuing resolution that's coming up shortly. Congress kicked the ... All these stupid phrases, kick the can, right? They, they bought themselves some time. Instead of passing the spending bills by October 1st when they're due, they said, "Oh, we're gonna, we're gonna buy ourselves a couple months."

Well, that couple months is about to run out, so in this Congress they're going to have to vote on what they're going to do around appropriations and then there will be a new bill for the next fiscal cycle starting [00:30:00] in March or April of next year that will need to be enacted by September 30th and we will go through all of this yet again.

Mark D'Arcy: And if the Congress doesn't want to try and coerce the president with the power of purse, there are other, other avenues of action as well that they might take. You, you mentioned the idea that they might try and impeach other government officials than the president. Pete Hegseth, the defense secretary or war secretary depending on which terminology you choose to adopt, seems to be a, a, a likely target for that if he doesn't, uh, somehow get moved out of the line of fire before it can happen. So they might impeach Pete Hegseth, they might impeach the, uh, Surgeon General, uh, Roy Kennedy Jr., they might try and impeach other people.

They might also try and summon some of the lesser lights of the Trump administration in front of committees to give evidence on embarrassing matters, on things of Jared Kushner and, uh, Witkoff, the other international emissary- Yes ... and, uh, have a look at some of the dealings that have been going on in their perambulations around the Middle East.

Uh, so are those [00:31:00] areas that are easier for a Congress to do than to get into a firefight with the president himself?

Daniel Schuman: Yes. It's still a fight with the president. Like, it's, it's ... The distinction is not that great, but that said, it seems likely that there are several members of the administration that are extraordinarily unpopular.

The Secretary of Defense is certainly one of them. The war in Iran, there are a number of Republicans who are not particularly happy. I ... It would not surprise me if Trump fires him to try to avoid some of these eventualities. There are other folks, the attorney general is not particularly popular so impeachments are very rare, but it is possible.

Much more likely, inevitable, is going to be oversight hearings where the committees in the House and the Senate call administration officials to testify about anything and everything that they can possibly imagine and this is where it kind of gets interesting where Congress has the, uh, authority to demand whatever information it wants from the executive branch and the executive branch has an obligation [00:32:00] by and large to provide it.

But what happens if they don't? Well, Congress can request it. They say no. Congress can demand it. They can send a subpoena And the administration can say, "We are not going to do this," even though they should. And then Congress can move to hold people in contempt. Being held in contempt is not such a great thing.

There are two types of contempt. There's statutory contempt, which is a legal process, but unfortunately the way it works is that the Department of Justice needs to bring the charges before the court. And the Department of Justice is not going to do that by longstanding policy, which is based on the legal principle of we don't wanna.

They have no constitutional basis not to do so. They just simply decline to do so.

Mark D'Arcy: So a Trump attorney general would not sign off on proceedings a- against members of the Trump administration, essentially?

Daniel Schuman: Correct. But we also have a process called inherent contempt, derived from Parliament, right? Congress has the inherent capability to, uh, engage in either make civil fines or to confine someone.

It hasn't used inherent contempt in, looking at my watch here, [00:33:00] 120 years, 110 years, so, uh, it's a little bit dusty. Uh, Congress, as it turns out, doesn't actually have a prison, although it does have a handful of cells. So i- in theory it could confine ... It's confined people to hotel rooms. It's confined ... You know, so it is possible to do this.

It doesn't really have an army. It does have a Capitol Police force and a sergeant at arms, so in theory it could hold someone for the duration of the Congress to try to get them to ... But, like, this is ... With each word that I'm saying, it becomes less and less likely that they're going to go down parts of this path.

Mm-hmm. But it is something that the House and perhaps the Senate will be exploring to try to get the records that are required to be able to conduct the oversight that they need.

Ruth Fox: And who would decide whether or not to hold these hearings? Is that purely gonna be in the control of the committee chair and, and the members and the majority on the committee?

You can already see the tension, uh, emerging- Mm-hmm ... in the questions that are being asked of these new [00:34:00] Democratic congressmen and senators, where you've got this sort of how much time do you wanna really wanna spend doing investigations of the Trump administration and Cabinet members versus how much time you want to spend actually delivering for your constituents who want relief in terms of the cost of living.

So you need to get legislation through. You need to get the budget through and deal with tariffs and so on. And this sort of how much of your sort of political capital and how much of your legislative time do you wanna spend on, on this? Would they have to kind of do deals at the leadership level, or could you see one committee chair going off at a tangent and doing their own thing, where the rest of the Democratic party's not very happy with them?

Daniel Schuman: That's a great question. And there are several questions in there. I will try to be brief, and we can dig in if there are places that you want. Mm. One is the committee chairs have discretion. They can conduct whatever oversight that they think is appropriate within their committee jurisdiction. That's set by the, the Rules Committee.

They can work for legislation. [00:35:00] And the committees have subcommittees, so in theory and oftentimes in practice they can walk and chew gum at the same time. You can move legislation and conduct oversight. It is highly likely that the committees will coordinate with one another to some extent and to, with leadership to a fair extent about what they're going to do.

But also, the committee chairs have egos, and they're going to want to do their work. Our committee chairs are strong, so while in theory they could consult with the members of the committee, in reality, the staff work for them. They can do a lot of what they wish to do at the full committee level. In the subcommittees, it, it varies depending on how much independence they have.

So they can do both of these things. Uh, one just sort of final point, though. Let's investigate the Trump administration for a second. Is Donald Trump ... Has he used his office for personal gain? If you ask him, he's going to say, "Yes." Okay, so what are you going to investigate when you have the answer, right?

The, a lot of the [00:36:00] corruption of the Trump administration is blatant and obvious. What more information are we going to gather about them engaged in, in illegal and corrupt activities? There is a point to which, yes, you've made this determination. Two-thirds of the American people vote to vote against the Trump administration.

Who are you persuading? Like, what is the purpose of the proceeding? One purpose could be you simply wanna tie them into knots, right? If you have to testify before five committees this ... and five committees next week and five committees for the rest of your calendar for the rest of your life- ... that is going to prevent them from doing the other things that they may wish to do.

But on the other hand, what is the political purpose that you're trying to accomplish? Oversight has to be for a thing. What are you building up to? I mean, there already is a general repudiation of this administration. What more do you need? Uh, so that's, that's a challenging question for the oversight work.

Mark D'Arcy: I suppose one side issue here is that there is the potential that, uh, some member of [00:37:00] the Trump administration gives evidence and is then accused of perjuring themselves afterwards, and there would be criminal penalties for that.

Daniel Schuman: This gets into an interesting side issue. The c- Congress can provide immunity for witnesses.

There's two types of immunity, but they can provide either immunity on the particular matter, or they can provide sort of a general form of immunity. The chambers is able to do this. So if you ask Pete Hegseth to testify, and he says, "I don't wanna testify," uh, you can give him immunity, and then he's re- you no longer have

The constitutional concern about, uh, self-incrimination no longer applies, and then you must testify, and if you do not testify, then you can be held in contempt. One other wrinkle to this, the president, of course, can pardon people as well. If you have been pardoned, then you do not face jail time for your illegal activity.

And then if that's so, on what basis can you refuse to testify if you have no threat of, uh, criminal prosecution? So there, there's [00:38:00] a number of sort of intricacies that get wound together here in terms of trying to avoid your time on the witness stand.

Ruth Fox: So essentially, the president could grant the pardon in advance.

That would mean that Pete Hegseth would not be facing jail time, so he, what? He effectively loses his Fifth Amendment right to ... So in a sense, he's protecting Pete Hegseth, but Trump would be opening himself up himself to more problems because Hegseth would then have to go before the, the Congress and, and answer some potentially difficult questions about what Trump has or hasn't said to him or directed him to do or, you know details about meetings. So it's, it's quite politically fraught then.

Daniel Schuman: The most likely result is that the administration is going to play for time. This Congress only will be in for two years, and then the request to testify and all these other matters expire at the end of that period of time. So they will claim executive branch immunity.

They'll say that it's privileged. They will make up things, and then when Congress tries [00:39:00] to get them to comply, they will go to court And going to court takes a very, very long time. Mm. There is no expedited process to deal with this. And oh, as it turns out, the president has chosen a significant number of Supreme Court justices who have no problem making up new rights and privileges that have never existed before, including presidential immunity, which has never been a thing, right?

The idea that the president is above the law, that's only been true for about, I don't know, two years? Mm-hmm. Three years? That was n- the president could always be held criminally responsible for his activities. That was the major threat against Nixon. Uh, and now the court has said otherwise, at least to some extent.

So they will play for time, install it as much as they humanly can, and they will hope for a giant meteor from space or aliens perhaps, or, uh, some- something that somehow changes the... I'm, I'm being a little funny, but something that, that changes the circumstances [00:40:00] where they will no longer be in, in the hot seat.

Mark D'Arcy: That's what's so fascinating about this, is that the US Constitution is famously a mechanism of checks and balances, and it seems to me that those checks and balances are being stretched and tested and stressed as almost never before, possibly not since the Civil War, certainly since Watergate. And nobody really knows what happens as a result of the, the, the stresses it's going to be put under.

But you can imagine that this Congress, or maybe the next, is going to have to start thinking about how to stress-proof the mechanism for the future. Is that happening at all? Are people starting to think- It- ... we need to change the system a bit so this kind of thing doesn't happen?

Daniel Schuman: Not only is that happening, but we d- we went through this before.

After Watergate, we put into effect a law that said the president cannot impound funds, and we established a mechanism to deal with that Uh, we put into effect, uh, a War Powers provision says the House and the Senate can stop a war within 30 days. All this, we did this already. And our good friends over at the Supreme Court, uh, issued several opinions that undermine the legislative branch's ability to effectuate these powers.

Uh, there was a, a opinion in a case called Chadha that said that, that Congress only acts when the House and Senate pass legislation and the president signs it, which was not the framers' understanding and it wasn't the understanding for the first 200 years, but it was the understanding of the senior White House officials that the president appointed and the Senate stupidly confirmed to the White House who believed in this theory of a strong or unitary executive branch.

And thus, until we change the composition of the Supreme Court in one way or another, we are stuck with a limiting and reducing framework that constrains Congress at the expense of expanding the powers of the executive branch. There are checks and balances only when you set up the legal framework to allow those checks and balances to function, and you put a whole bunch of people who believe in fringe legal theories into the Supreme Court, such as there's no such thing as an independent [00:42:00] agency, or the president can fire anyone he wants, or the president is immune from prosecution, which are all innovation and probably something positive.

They're, they're all novel approaches in the, in the last 10 years. The consequence of that is that the system of checks and balances does not function in the way that we would have intended it to. In our efforts to fix it the last time we had a president engaged in these types of actions, the Nixon administration, those fixes are no longer operative, uh, to use language from the Nixon era, right?

It's an inoperative fact, because the mechanisms that were expected to exist no longer function in that particular way. We are running past the constitutional tax. To your point, it, this is more like Civil War era stuff where, what's, what's the Latin phrase? Uh, when war is happening, the law is silent. I mean, the example that I'm trying, that I use for the American audience is we look to the Orange Revolution that you went through, and what are the powers of Congress, particularly around appropriation of, of spending, [00:43:00] and how do you effectuate that, and to what extent do you assume or believe or assert that the president has pow- powers that the president otherwise does not have and can simply say no, when the whole point was that Congress, the first branch of government, is supposed to be the most powerful branch, is supposed to be the one that makes the decisions, and it is so powerful that we divided it so that it couldn't abuse its power Uh, and now it's too weak to check an over-powerful president.

Mark D'Arcy: I find myself thinking of a quote from a, an earlier republic, the Roman Republic, uh, Pompey the Great. Mm. "Why do you quote laws to me? We carry swords."

Daniel Schuman: Yes.

Mark D'Arcy: Ouch.

Daniel Schuman: And of course, there's the famous stand-up philosopher, Mel Brooks, uh, who said, "It's good to be the king."

Ruth Fox: A lot of the obsession of the British audience, or certainly British journalists, is around the Supreme Court and Supreme Court nominations and, and so on. If there were a Supreme Court member who, who died or who [00:44:00] retired in the course of the next two years Clearly Trump would nominate one of his preferred people.

Right. Um, the Democratic Congress are unlikely to find them to be acceptable. Mm-hmm. So if that were to happen, are we in for a period of extensive fights over a nomination, withdrawals of nominations, and basically the Supreme Court being at least one member down potentially?

Daniel Schuman: It's possible. So we're having a similar issue now with the Government Accountability Office, which is Congress's watchdog, uh, where the, there's a 15-year term for the Comptroller General who just retired after 52 years of service.

Wow. And Russ Vought, who's the head of the Office of Management and Budget, wants to appoint one of his people in charge of GAO, which would destroy the agency. Why would you go and talk to the watchdog when they're gonna tattle back to you to the executive branch and exert retribution? The law provides that Congress recommends three people that the president must appoint in the context of GAO.

You could [00:45:00] see something like that happening either publicly or behind the scenes with respect to the court. President Obama tried to do this with Merrick Garland. He picked someone that would be acceptable to Republicans. They didn't accept him anyway, but, like, you could imagine the Democrats saying, "We would

These five people, we would confirm them. Uh, or we, we would provide consideration to it." Would the Trump administration, would they agree to that? No idea. If you had a less abnormal presidency, then yes. Right? You, you can see arrangements being worked out in the background. You talk about the usual channels, there's usual channels-between the, we call them the four corners, the heads of the Speaker of the House, minority leader, majority and minority leader of the Senate, they can have a conversation with the White House, or just the Senate would, saying, "This is, this is who would be acceptable. This is who would not." There's a process that you go through, but we don't know.

We're also talking about how do we change the court? The size of the court, for example, is a matter of law, not a matter of being [00:46:00] constitutionally required. So you can expand the number of Supreme Court justices or you can contract the number of Supreme Court justices. My proposal is that we contract it to kick eight of those people off, and then we expand it again and just appoint new ones.

But, uh, I call it the Big Bang, right? It's like- But, uh, I mean, we're in the area, era of things that were never would be taken seriously. That is insane to do something like that, but we are in the era of r- we're grasping at straws and trying to figure out how to right the ship. And so Trump will not be able to appoint any new Supreme Court justices in the next two years.

It is highly unlikely that he'll be able to appoint district court or court of appeals judges. I imagine almost all, all or almost all that is going to stop I imagine that all or almost all appointments to federal agencies is going to stop. We're going to see a lot of people that are acting in, in those roles.

The only appointments that will go through are probably people in the military, because that needs to be confirmed by the Senate. It'll be very messy.

Mark D'Arcy: I was thinking as I was having a chat on [00:47:00] Twitter to someone about another American political program, The Diplomat, and saying, "Yeah, it's pretty implausible, but is anything implausible these days?"

Daniel Schuman: The question is not what's lawful, it's can somebody stop you from doing it.

Mark D'Arcy: Yeah.

Daniel Schuman: I mean, that's basically where we are, and a lot of things rely on norms and behaviors and, and conciliation, and that is just not a thing. We are at, I think, the crisis moment. Congress is controlled by Democrats. There is no longer this fig leaf of Congress authorizing or agreeing to these things that the president is doing, and the president is not going to stop doing those things, and the agencies won't stop doing those things.

So what happens when the law says one thing and what the agencies do is something else? I don't know the answer to that, and I don't think anybody does.

Ruth Fox: We'll find out in, uh, in the, in the coming months, and, uh, we'll have you back, Daniel, to, uh, try and, uh, unpick it and talk about what might happen next.

Mark D'Arcy: Uh, Daniel Schuman, thanks very much indeed for joining us on the pod [00:48:00] today. That was very illuminating and really quite scary.

Ruth Fox: Thanks, Daniel.

Daniel Schuman: My pleasure. Thank you for having me.

Mark D'Arcy: And talking of titanic legislative battles against incredibly powerful opponents, we've got another fascinating conversation coming up with Baroness Kidron, the crossbench peer at the center of parliamentary efforts to regulate the online world.

It'll be hitting your podcast feed at the start of next week.

Ruth Fox: So if you're a new listener, do follow Parliament Matters on your podcast app, and if you enjoy the podcast, please leave it a rating or review, especially if you're listening on Apple Podcasts or Spotify. It helps more people discover the pod and understand why Parliament matters.

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But for now, from Mark and I, goodbye.

Mark D'Arcy: Goodbye.

Outro: Parliament Matters is produced by the Hansard Society and [00:49:00] supported by the Joseph Rowntree Charitable Trust. For more information, visit hansardsociety.org.uk/pm, or find us on social media @HansardSociety.