Congressional investigations can make a world of difference in humanitarian crises. In 2008-2009, I led the staff of a bipartisan Senate investigation of the federal government’s response to Hurricane Katrina, probing the government’s failure to provide for the needs of those displaced. Our nearly 300-page report described in detail what had gone wrong and why, and concluded with extensive recommendations on reform of law, policy, practice and personnel to fix what was broken.
This level of congressional oversight is needed today on the government’s response to the coronavirus. Today, as with Katrina, the nation is faced with a deeply flawed federal response to an ongoing crisis with catastrophic consequences on a historic scale. Congress has held hearings on discrete issues, but the crisis calls for much more—a sweeping review and report that comprehensively studies the response, identifies what has gone wrong and right, and makes concrete recommendations. As this investigation proceeds, matters that need to be dealt with urgently can be addressed through hearings or interim reports.
Many lessons the congressional staff learned during our work on Katrina echo hauntingly today. Carefully developed crisis planning was ignored, replaced by ad hoc decisions. Federal responses were poorly coordinated, inadequate and confused. The crisis and response hurt black and low-income citizens the most. There was no federal strategy, a stark failure our committee conducted a hearing about and corrected with oversight.
Today, there are worrying signs that all of this may be happening again. Having apparently discarded the careful pandemic planning it inherited, the Trump administration has no evident strategy guiding its response to the complex crises created by the coronavirus. Administration statements and decisions have been impulsive, contradictory and in some instances dangerous. Congressional oversight is necessary to review the federal response and correct it where necessary.
Why Conduct an Investigation?
A coronavirus investigation falls within the broad authority vested in Congress by the Constitution to investigate matters that are or could be the subject of legislation. Oversight and investigation power is necessary for Congress to carry out its constitutional duties to legislate and appropriate funds in response to the crisis, which it has done in the initial stimulus package and is continuing to do in considering follow-up assistance. As a co-equal branch of government, Congress has enormous authority and responsibility to act as necessary to protect the American people in response to this crisis.
It is important for investigations to be objective and not to prejudge conclusions. But the administration’s floundering response to the pandemic, along with its efforts to limit oversight through existing mechanisms, provides ample evidence of the need for a congressional probe.
The administration’s response from January through mid-March was characterized by the president’s refusal to accept and act on internal warnings of the pandemic’s danger, issuing statements that proved to be dramatically wrong about the spread and lethality of the virus and undermining expert recommendations that citizens take protective measures. The president has since suggested that governors who disagree with him might not receive aid regardless of state needs and continues to encourage citizens to resist state and local safety measures that have overwhelming scientific support.
Meanwhile, the metrics are grim. More people in the United States have been killed or infected by the virus, by far, than in any other country. Over 100,000 Americans have been killed by the virus. Numbers of deaths and infections continue to grow, and the administration has increased its estimates to project a sharp upturn in fatalities. More than 36 million Americans are unemployed in part due to the financial crisis caused by the pandemic. Despite the country’s wealth and medical prowess, there are shortages of relatively inexpensive medical protective equipment and testing kits. These past and present problems are ample grounds for investigation.
Yet the Trump administration has stifled oversight. Since the outset of the crisis, the president has fired or removed four inspectors general with authority to review pandemic response—including the inspector general of the Department of Health and Human Services, who warned about shortages in protective gear and tests, and the inspector general with authority to oversee the $2 trillion stimulus relief program. There is also the Trump administration’s refusal to allow Anthony Fauci, the infectious disease specialist helping lead the government’s pandemic response, to testify before the House of Representatives—though Fauci was permitted to appear before the Republican-controlled Senate. These efforts to thwart legitimate oversight render it even more vital that the whole of Congress—including the House—exercises its independent authority to review the administration’s response to the coronavirus.
What Should Congress Investigate?
A thorough congressional investigation could include the following questions. Congress could elect to separate and prioritize subjects with an urgent impact on public safety or economic vitality.
What did the Trump administration do regarding pre-crisis preparedness? It has been established that the Trump administration dismantled the National Security Council pandemic response team and disregarded a lengthy pandemic response strategy manual prepared by the Obama administration. Congressional investigation should cover these actions and their impact on the government’s preparedness for the pandemic, as well as any other actions the administration took, or did not take, that improved or degraded readiness.
Does the Trump administration have a pandemic crisis response strategy, and if so, what is it? A whistleblower testified that the administration is proceeding without a plan and warned that this could lead to catastrophic results this coming winter because of the extraordinary logistics required for effective response. Given that prior preparedness planning and personnel were reportedly dismissed, Congress should ask what replacement strategy the Trump administration has implemented.
Are the federal government’s capacities and resources sufficient for pandemic response? During the Katrina investigation, we found that a combination of factors across administrations weakened the capacity of the federal government to respond to a disaster of that magnitude. These factors included limits on statutory and regulatory authority, shortcomings in institutions shaped in part by that authority, outdated technology, personnel shortages and overly complex processes. There are reports that similar problems are impeding the coronavirus response. Congress should assess and address the federal government’s capacity to respond to a pandemic of this scale..
What has the Trump administration done to produce urgently needed medical supplies? Despite the enormous resources and productive capacity of the United States, medical workers have struggled with the life-threatening scarcity of supplies needed to safely treat the sick. In March, nurses in New York City resorted to wearing trash bags, and doctors in Tennessee were advised by the state government to wear diapers for masks. One April study of nearly a thousand hospitals predicted that nearly all had only two weeks’ worth of some protective gear. According to the Washington Post, hospital shortages continued into May.
Likewise, though it is widely accepted that widespread coronavirus testing is necessary to safely end restrictions on movement, the shortage of tests is so severe that states have been forced to get them from other countries. Though the president delegated authority to increase production of medical equipment under the Defense Production Act to Secretary of Health and Human Services Alex Azar in mid-March, there are questions as to whether the administration used this authority as promptly and fully as it could have to increase the production of safety and treatment supplies and equipment. Congress should investigate whether the administration is taking the necessary steps to protect medical workers and to provide adequate tests and treatment.
How have executive branch entities with coronavirus responsibilities performed and coordinated? Crisis response has been carried out by federal departments with jurisdiction and expertise—such as the Centers for Disease Control and Prevention (CDC), the Department of Health and Human Services and the Federal Emergency Management Agency (FEMA)—the White House Coronavirus Task Force (which includes appointees from some of these entities), and an ad hoc group led by the president’s son-in-law, Jared Kushner.
All these entities have made grave mistakes. CDC testing kits failed early in the pandemic because the center breached its own protocols and produced faulty tests. FEMA gave no-bid contracts to unqualified businesses that failed to deliver masks, while Health and Human Services rejected offers by qualified manufacturers to make millions of masks. Kushner has no experience in disaster or pandemic response, logistics or resource management. And neither do many on his team, who, like him, are young, inexperienced people from the world of finance. There are reports of confusion between these groups regarding authority and responsibility, that the recommendations and warnings of the federal experts are being ignored, and that the Kushner group prioritized “tips” about urgently needed supplies from a “VIP” list of the president’s supporters. Congress should assess the performance of each of these entities as well as whether the executive branch is effectively managing their coordination and communication.
Is the Trump administration’s crisis response free from conflicts of interest? Congress should also review whether Trump or any of his key advisers have conflicts of interest that are clouding their decision-making. The president has a financial interest in hotels, resorts and restaurants heavily impacted by restrictions, and it is reported that Kushner has financial conflicts as well. Part of investigating potential conflicts would involve assessing whether the president or anyone in his crisis response team made transactions during the crisis that were influenced by the information and authority they have. Leadership in most administrations would follow divestment or disclosure practices designed to prevent such conflicts, but that has not been the case with Trump or key members of his administration—making it particularly important for Congress to determine whether the administration’s response has been free from improper influence.
When and how should safety protections be lifted? While it is true that restrictions cannot be sustained indefinitely without deepening the already-severe financial crisis, lifting restrictions prematurely will kill and hurt more people—and lead to new fear that may prolong and worsen the damage to the economy, as Fauci himself has said. Though all states and many localities are relaxing protective restrictions, it is far from clear that it is safe to do so given the rates of infection and fatality and the absence of testing and tracking necessary to protect against another surge in the virus. The CDC released detailed guidance on reopening, but this was delayed until May 20, after all states began to reopen. Even then, the CDC guidance does not address how churches and faith institutions should safely reopen—a strange omission given reports that religious services have been among the greatest spreaders of the pandemic.
Reopening decisions require an excruciating assessment of health risks against the economic harm done by restrictions. Congress should conduct hearings to assess the bases on which these decisions have been made, particularly given that states made their decisions before the CDC released its May 20 detailed guidance. Congress may also wish to study actions taken by countries that have successfully managed the pandemic and reopened, to determine whether the U.S. should take similar steps.
What is the impact of federalism and effectiveness of state-led response? The Trump administration wants the states to lead response efforts with the federal government as a “backup.” There are positive aspects of this approach: States’ circumstances differ, and each is better situated to make localized decisions than the federal government. But there are negatives as well. The ongoing public health and economic crises are national in scope and require federal resources and a nationally coordinated response. Experts warn that the virus is harder to contain geographically with a patchwork of differing state restrictions; a state that fails to contain the virus could reignite a regional or national outbreak. States are forced to compete for scarce resources. Congress should assess the results of putting states in the lead and make recommendations on whether this should be continued.
Why have death and disease rates been so disproportionately high among Blacks, Latinx, and victims of economic inequality? The pandemic is another chapter in the bitter story of American racism and inequality. Black and Latinx people are being infected and are dying at much higher rates than white Americans. Many people of color are disadvantaged and have inadequate health care, or are disproportionately among the essential workers who work in close quarters with much greater exposure to the virus. Congress should investigate, report on causes and propose solutions.
Is stimulus funding meeting the needs of those hurt financially by the crisis, and is it being properly spent? The House has established a special committee for oversight of the stimulus package, which is essential to ensure that the funding is being distributed as appropriated, for determining the effectiveness of stimulus programs, and for assessing the need for further assistance. There are reports of abuse of the program. The Small Business Administration acknowledged that businesses owned by the economically disadvantaged, particularly those owned by minorities and women, have not received loans as intended.
How Could an Investigation Be Conducted?
There are recent examples to guide congressional oversight. The Katrina investigation, along with a prior Senate investigation that focused on immediate response to the hurricane, brought a series of reforms that helped improve disaster response. The 2008 Senate Armed Services Committee investigation of detainee mistreatment after 9/11, and a subsequent investigation by the Senate Select Committee on Intelligence, confirmed reports of pervasive abuse and laid the groundwork for the McCain-Feinstein Act reinforcing the prohibition of torture and cruel treatment.
The 9/11 Commission investigation and report is the best example of an alternative to direct congressional investigation—appointment of a respected commission of high-profile members who conduct an inquiry independently. The 9/11 investigation was widely considered authoritative and nonpartisan, and its extensive recommendations served as a blueprint for upgrading counterterror protections. While none of these investigations was without controversy—nor could they provide perfect solutions to the complex problems they examined—they provided a comprehensive account on matters of vital importance, educated the public, and offered meaningful and well-grounded recommendations. Experienced leadership capable of bipartisan cooperation helped guide this work.
As these past experiences suggest, there are several ways Congress could choose to investigate. One model—used during the Katrina investigation and the Senate Intelligence and Armed Services investigations into detainee treatment—is to have members and staff from an existing committee conduct the investigation. Senate and House committees with homeland security and governmental oversight authority would be well suited for this role.
Another model would be for Congress to create a new select committee. Indeed, the House has already done this for oversight of the coronavirus stimulus—but this committee’s authority is limited to review of the stimulus program. The House could expand the select committee’s authority to include comprehensive review of the government’s response—and senators (with their staffers) could join in as well to create a joint congressional committee. While any of these options would produce partisan friction, they have the advantage of being able to get started on work quickly, as they would largely be carried out by existing staff.
A third option would be to create a commission led by a group of prominent and respected people outside Congress. This would likely be perceived as less partisan than an investigation run solely within Congress and, if properly resourced, could conduct a more comprehensive investigation. By way of example, the 9/11 Commission had more than 80 staffers who worked full time on that inquiry; a typical congressional investigation is conducted by fewer people who often conduct their work among other duties. However, a commission would also likely take longer and be less effective at providing the immediate solutions demanded by the coronavirus crisis. It is easier for congressional committees to move from investigation to legislation and executive branch oversight (since Congress has these authorities) than it is for an independent commission. What’s more, a commission with the authority to carry out a meaningful investigation on the coronavirus response would have to be created by statute. At least two bills have been introduced to do just that. Congress would need to define in detail how members would be selected, what they would be authorized to investigate, the investigative powers they would have (including whether the committee could issue subpoenas and hold hearings), and what kind of report the commission would submit.
It is hard to imagine Congress agreeing on any of this, and inconceivable that the president would approve or cooperate with an independent commission. Though neither investigative pathway is free from drawbacks, and both would surely meet with the refusal to cooperate that has characterized the administration’s response to oversight, the better path is to move forward with an investigation within the legislature. Congress already has the power and personnel to conduct an investigation, and it is better suited to address these issues separately and quickly if need be. Moreover, Congress could investigate immediately while authorizing an independent commission inquiry later, as was done for the 9/11 attacks.
Lawmakers may worry that such an investigation will inevitably be attacked by the administration as politicized and partisan. This should not block Congress from doing its job. For one, congressional oversight is constitutionally mandated—the president cannot exercise unchecked power, even in emergencies. There is abundant evidence that the president’s response is flawed and that this is deepening the crisis. Congress can and should exercise its authority.
Moreover, congressional oversight can be bipartisan. Republicans control the Senate and participate in House proceedings. Supporters of the president in Congress will have the opportunity to participate in the investigation and reporting. Congressional oversight will also give Republican members concerned with the administration’s response to the pandemic an opportunity to use their authority to influence improvements.
Given the life and death urgency of ensuring that the federal response to the coronavirus crisis is as effective as possible, congressional investigation should start promptly. However, Congress could agree—as we did with the Katrina report—to a “blackout” period for a set time preceding the November election, during which it would not report or hold hearings. Congressional oversight could be confined to a select committee to guard against time-consuming duplicative investigation. Ultimately, the success of Congress’s work will depend on its credibility—and that in turn will rest on the integrity of its factual investigation and reporting and the wisdom of its actions and recommendations. As the pandemic continues, congressional oversight is necessary to hold the Trump administration accountable and ensure that officials are doing all they can to keep Americans safe.