GOP keeps the Senate. Now comes the hard part.
BY EMMA DUMAIN AND LESLEY CLARK
Republicans cemented their hold on the Senate Tuesday night for another two years, ensuring President Donald Trump will have a built-in army of allies to advance his agenda, confirm his judges and defend his office.
But the GOP triumph also means Senate Majority Leader Mitch McConnell of Kentucky will have many of the same challenges that have dogged him in the current Congress.
By 10:45 p.m., Republicans had secured 50 seats, giving them a majority since Vice President Mike Pence breaks ties. Republicans beat two Democratic incumbents: Businessman Mike Braun beat Sen. Joe Donnelly in Indiana, and Rep. Kevin Cramer beat Sen. Heidi Heitkamp in North Dakota.
Candidates Trump campaigned for in the final days before the midterms — Rep. Marsha Blackburn, R-Tennessee, and incumbent Sen. Ted Cruz, R-Texas — prevailed.
“In a year when Republicans faced stiff political headwinds, an avalanche of liberal political spending and the historic midterm election disadvantage, our successful defense of the Republican Senate majority was a crucial accomplishment,” said Steven Law, president of the Senate Leadership Fund, a McConnell-aligned political action committee which spent $123.4 million this cycle.
McConnell is currently presiding over a Senate with 51 Republicans.
Next year, he’ll still have to rely on a largely uncooperative Democratic minority, since it usually takes 60 votes to advance major legislation. He’ll also still be working alongside a president whose volatility makes it hard for Republicans to stay on message.
Still, with the retirements of two of Trump’s biggest GOP critics — Sens. Jeff Flake of Arizona and Bob Corker of Tennessee — McConnell’s Republican Senate stands to have more ideological unity and a shared sense of purpose as it prepares for 2020.
That’s when the president is up for re-election, when he will try to tell voters what his party has accomplished. McConnell will be seeking to deliver the types of legislative victories that can bolster that argument and excite the national Republican base.
McConnell will also face re-election that year, meaning voters will be judging his own job performance.
“(They) are actually joined at the hip in terms of their own re-election campaigns,” said Scott Jennings, a political consultant and longtime McConnell confidante. “Trump’s successes are McConnell’s, and McConnell’s are Trump’s.”
Senate Republicans will have to look to Trump to plot a legislative blueprint.
Congress could be asked to approve an updated trade deal with Canada and Mexico, with McConnell expected to get his members to support the agreement Trump negotiated. And the president recently said Republicans should pass another tax bill that provides relief to the middle class.
McConnell could try to help Republicans fulfill their years-old pledge to repeal and replace the Affordable Care Act, which would be a major gift to Trump. The Senate GOP in 2017 fell short of the votes to overturn former President Barack Obama’s 2010 health care law and McConnell called the failure “the one disappointment of this Congress from a Republican point of view.”
McConnell and 20 of his Senate Republican colleagues are up for re-election in 2020, and several come from states with rapidly changing demographics that could prove challenging for the GOP.
Though he has already shown an ability to raise a considerable amount of money for the GOP — the Senate Leadership Fund has raised more than $100 million for the midterm elections, including $37.6 million in September — he’ll have to do more than that.
He will have to work to protect incumbent senators such as Thom Tillis of North Carolina, David Perdue of Georgia and Cory Gardner of Colorado — and even outgoing Senate Republican Whip John Cornyn of Texas — against votes that could alienate their diversifying constituencies.
If conservatives from deep-red states want to build Trump’s border wall, they might have to finally grapple with legislation that would provide a pathway to legal status for certain undocumented immigrants.
If the GOP wants to pass an Obamacare alternative, it will have to be mindful not to cut spending for Medicaid. McConnell might have to reconsider his recent suggestion that the Republican Senate could try to overhaul entitlement programs such as Social Security as a way of reining in the deficit.
Ultimately, with all the competing regional, ideological and political factions, there’s only one sure thing McConnell can count on to score wins for Trump and the party: Confirming judges, which only requires a simple majority and doesn’t depend on the dynamics in the House.
Since Trump was sworn into office in 2017, McConnell has made confirming Trump’s judicial nominees a signature accomplishment. He has, so far, shepherded 82 conservative judges to lifetime appointments on federal circuit and district court benches., as well as two Supreme Court justices.
In 2017, he led the effort to change Senate filibuster rules to make it easier to confirm justices, a crucial maneuver for Republicans to confirm Neil Gorsuch with a very slim GOP majority. Gorsuch was promoted in a 54-45 vote.
Last month, McConnell risked backlash from women voters by aggressively promoting Brett Kavanaugh’s confirmation to the Supreme Court, hoping the gambit would have a galvanizing effect on Republican voters ahead of the midterms.
Democrats, and even some Republicans, have suggested that if there’s another Supreme Court vacancy during the next two years, the Senate would have to wait until after the election to move forward with confirming a new justice.
It would only be fair, they argue. Republicans in 2016 refused to consider Merrick Garland, Obama’s nominee, reasoning an outgoing president should not get to make such a crucial appointment.
McConnell has refused to make that commitment.
“You have to go back to go back to 1880 to find the last time a Senate controlled by a party different from the president filled a vacancy on the Supreme Court that was created in the middle of a presidential election year,” he recently said on Fox News.
Anthony Kennedy, whose retirement from the Supreme Court earlier this year resulted in Kavanaugh’s nomination, was appointed by a Republican president, Ronald Reagan, in 1987, and confirmed by a Democratic-led Senate, 97-0, in February 1988.
Moving ahead with confirming a Supreme Court justice in 2020 would be exactly the type of red-meat, hardline gesture that excites the GOP base.
McConnell’s Republican colleagues stand ready to help deliver other wins for Trump, too.
Sen. Lindsey Graham, R-South Carolina, could become the next chairman of the Senate Judiciary Committee if Sen. Chuck Grassley, R-Iowa, decides to head the Senate Finance Committee, a decision Grassley said he would not make until after the election.
Graham emerged from the Kavanaugh hearings a more hardened partisan, furious with his Democratic colleagues for trying to derail the nominee because of what the senator called false accusations of sexual misconduct. Though Graham has a history of working across the aisle, there’s every suggestion now that he would be unrelenting in moving Republican judicial nominees through the committee pipeline.
He recently promised to introduce legislation that would eliminate “birthright citizenship,” piggybacking on Trump’s own stated interest in ending the practice. Graham also said he would use his potential chairmanship to investigate the “Steele dossier,” a memo making various claims about Trump’s ties to Russia that Hillary Clinton’s 2016 campaign helped fund.
Graham’s interest in helping McConnell help Trump is also self-serving: He is up for reelection in 2020, too.
Emma Dumain: 202-383-6126, @Emma_Dumain
Dems to flex muscle with new House majority: Subpoenas, investigations, even possible impeachment talks loom
The incoming Democratic majority in the House of Representatives has the power to open a slew of investigations into the White House and President Trump when the new Congress is seated in January, and early indications are that Democrats plan to aggressively take advantage of their new authority.
Bogging down the Trump administration with burdensome document requests and subpoenas could backfire, political analysts tell Fox News, but there is little doubt that the strategy -- made more viable by heightened partisanship and loosened congressional norms -- would impair Republicans' messaging and even policy goals for the next two years.
House Minority Leader Nancy Pelosi, who aims to reclaim the position of House speaker when her colleagues vote on leadership roles in the coming weeks, recently seemed to threaten to use congressional subpoenas as a cudgel against the White House.
“Subpoena power is interesting, to use it or not to use it,” Pelosi said at a conference in October, referring to the authority of House committees to summon individuals and organizations to testify or provide documents under penalty of perjury. “It is a great arrow to have in your quiver in terms of negotiating on other subjects." She added that she would use the power "strategically." (Trump has flatly called Pelosi's plan "illegal.")
DEMS RETAKE HOUSE, BUT GOP EXPANDS SENATE MAJORITY -- GIVING THEM CONTROL OVER JUDICIAL APPOINTMENTS
On Tuesday night, as it became clear Democrats would retake the House, Pelosi appeared to double down on that rhetoric, declaring that the midterms were about “restoring the Constitution’s checks and balances to the Trump administration."
"In sharp contrast to the GOP Congress, a Democratic Congress will be led with transparency and openness, so the public can see what's happening and how it affects them. ... We will have accountability," Pelosi said.
"A Democratic Congress will be led with transparency and openness."
— House Minority Leader Nancy Pelosi, D-Calif.
Pelosi has said that unearthing Trump's personal tax returns would be "one of the first things we'd do" in an interview with The San Francisco Chronicle, calling it the "easiest thing in the world" to obtain them using statutory authority granted to congressional committees under the Internal Revenue Service code. Democrats made several efforts to obtain Trump's returns while in the minority, only to be rejected by House Republicans.
Trump would likely seek to stall those requests with legal challenges, and it remains unclear whether Democrats could publicly release his tax returns even if they obtained them for investigative purposes.
Before a rally in Indiana on Monday, Trump appeared unconcerned about the matter. "I don't care," he said. "They can do whatever they want, and I can do whatever I want."
Rep. Jerry Nadler, the Democrat who was projected to win New York's 10th congressional district, warned Trump in a tweet his administration would be "held accountable."
"Tonight, the American people have demanded accountability from their government and sent a clear message of what they want from Congress," he wrote. Trump "may not like it, but he and his administration will be held accountable to our laws and to the American people."
House committees can effectively hold in statutory contempt anyone who refuses to fully comply with a subpoena relevant to the committee's legislative purpose and pertinent to its investigation. While criminal penalties, including fines and even imprisonment, are then possible with a judge's approval, separation-of-powers issues emerge when the House tries to penalize a member of the Executive branch.
In 2014, a federal judge denied House Republicans' efforts to hold then-Attorney General Eric Holder in contempt of court, saying the move was "entirely unnecessary."
But even fruitless investigations can beleaguer and derail administrations, and historical evidence suggests they are becoming a popular partisan tool in the lower chamber for that reason.
Research conducted by Cornell University political science professor Douglas Kriner, who co-wrote the 2016 book "Investigating the President: Congressional Checks on Presidential Power," underscores how important control of the House, as opposed to the generally less partisan and slower-moving Senate, is to these congressional probes.
"We examined every congressional investigation from 1898 to 2014 – more than 11,900 days of investigative hearings," Kriner told Fox News. "What we found is that divided government is a major driver of investigations in the House. This is particularly true in periods of intense partisan polarization. For example, from 1981-2014, the House averaged holding 67 days of investigative hearings per year in divided government, versus only 18 per year in unified government."
Kriner added that modern congressional probes seem geared towards "maximiz[ing] the political damage on the White House," rather than producing more substantive results. "Investigations are less likely to trigger new legislation than in previous, less polarized eras," Kriner told Fox News.
President Trump has repeatedly derided the ongoing investigation by Special Counsel Robert Mueller into possible illegal Russian collusion and obstruction of justice as a "partisan witch hunt," saying it's fueled by Democrats upset that he won the 2016 election. But it's not clear how effective those attacks have been: An August poll showed that 59 percent of registered voters approve of Mueller's investigation.
The House Intelligence Committee’s top Democrat, Adam Schiff, already has warned his party would relaunch the Russia probe in the House with Democrats in charge.
“We will be able to get answers the Republicans were unwilling to pursue,” he recently told CNN.
Democrats have an array of potential avenues of investigation to pursue aside from Russia. In September, a federal judge ruled that Democrats have standing to sue Trump over potential violations of the Constitution's Emoluments Clause, which ostensibly precludes the president from accepting certain foreign favors. While the legal argument that Trump is violating this clause by maintaining lucrative and profitable overseas investments is far from settled, Democrats' pursuit of this line of argument offers some clues into what their investigations might focus on.
University of North Carolina Law Professor Michael Gerhardt, a constitutional expert who testified during impeachment proceedings of former President Bill Clinton, told Fox News in an interview that Democrats might focus on Trump's financial ties to Saudi Arabia.
"It is possible — would not be a surprise — if there were some interest in exploring the president’s Saudi connections or finances," Gerhardt said, before adding: "It would also not surprise me if the Democrats did not pursue these things."
The killing of dissident Jamal Khashoggi in the Saudi Consulate in Turkey last month led to heightened scrutiny of the past connections between Trump's business empire and the Islamic country. The president initially condemned what he characterized as a rush to judgment against the Saudi government, before saying that its agents had apparently engaged in the "worst cover-up ever."
Trump has tweeted that he has "no financial interests in Saudi Arabia," and there is no evidence that he currently does. However, he has repeatedly touted his real estate deals with the country, saying at a 2015 rally that "they buy apartments from me" and "spend $40 million, $50 million. Am I supposed to dislike them? I like them very much."
In August, Axios published a spreadsheet circulating among Republican circles on Capitol Hill documenting possible areas of focus for Democratic investigations. They include the White House's revocation of top former officials' security clearances, Trump's unreleased tax returns, and the administration's proposed travel ban and a prohibition on transgender individuals in the military.
Other topics on the list, which Axios said originated in the office of a senior Republican lawmaker, are Trump's personal iPhone use and his personal payment to porn star Stormy Daniels -- a move that implicated, but did not appear to definitively violate campaign finance law.
Frequent Trump critic Rep. Ted Lieu, D-Calif., said in an interview last week that Democrats intend to "exercise oversight over the executive branch the way the Framers intended."
He went on to mirror Pelosi's threat: "We would be able to get Donald Trump's tax returns to see if he's being influenced by foreign entities. ... We can call in the secretary of Homeland Security [to] ask her why she still has hundreds of children she has not reunited that she ripped away from parents at the border. There are a lot of things that we can do with our oversight responsibility."
House Oversight and Government Reform Committee ranking member Elijah Cummings, D-Md., who is poised to become the committee's chairman, offered another possible angle in an interview with The Hill. "I want to look at what President Trump has done, aided and abetted by the Republicans in Congress, to tear down the foundations of our democracy," he said.
Republicans who control the Oversight committee have rejected more than 50 Democratic requests for subpoenas of Trump administration documents, covering everything from the White House's decision not to defend key provisions of ObamaCare in court, to perks used by Cabinet members.
A particularly prominent possible investigation would revolve around Trump's decision to fire FBI Director James Comey, which critics have cited as potential obstruction of justice in part because Trump acknowledged that Russia-related matters were on his mind at the time.
“The cover-up is always worse than the crime, and this one is very shady,” Andrew Hall, who represented a top adviser to then-President Richard Nixon during Watergate, said in an interview. Hall has maintained that Trump will "undoubtedly be impeached."
However, legal experts, including emeritus Harvard Law professor Alan Dershowitz, have said that penalizing the president for firing an FBI director who serves at his pleasure would be unconstitutional, and others have pointed out that Comey's firing would have done little to halt the Russia probe generally.
Mueller's findings, which are expected to be submitted to Congress in a matter of months, might provide a launching point not only for further investigations but for even impeachment proceedings.
"Impeachments tend to be driven by particular events that are instances of grave misconduct — not liking someone or being an opponent is not likely to be enough to get the whole process started," Gerhardt told Fox News.
Such an escalation, analysts warn, would potentially pose a risk to Democrats. "I don’t think there is something as well developed as a tradition not to seek an impeachment when it appears conviction is unlikely or unthinkable," Gerhardt added. "Nonetheless, I think there is always awareness of the possible risks of seeking an impeachment when conviction is impossible."
Handling many of these congressional inquiries will be the new White House Counsel, veteran high-powered Washington lawyer Pat Cipollone, who will oversee an office that dwindled from a staff of approximately 50 to fewer than 30 in recent weeks. That headcount is expected to expand significantly in the wake of Democrats' House takeover.
"He’s very talented and he’s a very good man," Trump said last month, referring to Cipollone. In a campaign email in the days leading up to Tuesday's vote, the president made an impassioned effort to cut down on Cipollone's workload, saying Democrats are interested only in "vicious obstruction and mindless resistance."
"We can only imagine what they’d do with legitimate power in our government," Trump said. "We can’t hand Democrats the keys to Congress. We can’t go back.”
Gregg Re is an editor for Fox News. Follow him on Twitter @gregg_re.