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Why Elissa Slotkin’s Threats To Trump Staffers Are Probably Unconstitutional

Sen. Elissa Slotkin’s statements not only crossed a line but also make it harder for Congress to defend its oversight powers before the Supreme Court.

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While recording a recent podcast at the University of Chicago, Sen. Elissa Slotkin of Michigan said that if Democrats win the House in the midterms, they should “go after” Trump administration staffers. She added that Democrats’ efforts should have a “deterrence” effect on college graduates seeking to join the federal government during the Trump administration.

Slotkin’s goal would be to make it clear to anyone seeking entrance to the federal government that upon joining they would be “buying [themselves] a ton of problems.” This is not only wrong, but it provides evidence for those who wish to block enforcement of future congressional subpoenas. 

Congress’s Investigative Powers

There is no enumerated constitutional provision that gives Congress oversight or investigative power. Instead, its power to conduct investigations and issue subpoenas is an implied power recognized by the Supreme Court. The U.S. Constitution grants Congress “all legislative powers” and the power to “make all laws which shall be necessary and proper for carrying” out Congress’s duty to make legislation.

In Trump v. Mazars USA, LLP, the Supreme Court explained that Congress possesses the power to issue subpoenas and conduct investigations “‘to secure needed information’ in order to legislate.” The court has described Congress’s investigative power as “broad” and “indispensable” because, otherwise, Congress would be “unable to legislate ‘wisely or effectively.’” But a congressional investigation or subpoena must be “related to, and in furtherance of, a legitimate task of the Congress,” and for a “valid legislative purpose.”

Congressional investigations outside of Congress’s power to legislate are invalid. Courts have held that Congress cannot use its power “to expose for........

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