Yesterday I posted commentary on Trump’s stone-walling subpoenas from Congress: Our nation is living divine right of kings redux. In the eyes of his followers President Trump can do no wrong. After having reviewed How the Trump-Congress subpoena fight is likely to play out by Phillip Bump at the Washington Post, I offered a pessimistic evaluation of how the battle between executive and legislative branches might end.
Who will win? The short of it is twofold. First, the clock favors Trump. His stalling and stonewalling are devices meant to run out the clock and deny effective congressional oversight until 2020 or beyond and in a new Congress, maybe not even then. Second, and perhaps more importantly, Congress can issue subpoenas but “it lacks a robust criminal enforcement mechanism. A recent Congressional Research Service report delineated the two ways in which Congress could pressure administration officials to respond to subpoenas: criminal contempt citations or civil enforcement.” Those actions end up in court and that creates delays. “And with Barr as AG, what are the chances that DOJ will act to enforce the subpoenas?” With absolute executive branch control, there are no checks and only imbalances. Our democracy is on the block.
Today I’m going to revisit Congress’ powers because they are more nuanced than my pessimistic conclusion suggests. In another post today (April 26), AZ BlueMeanie at Blog for Arizona provides an analysis of Congress’ power to compel testimony, Congress has inherent contempt power – ‘lock them up!’
The BlueMeanie concludes that “… Congress possesses “inherent contempt power” by which it can actually arrest people, hold them over for trial, and issue punishments without any help from either the executive or judicial branches.” The rationale is found in several sources with case examples dating back to 1795. The most recent opinion on this point is quoted by the BlueMeanie: Congress Needs To Lock Up Non-Complying Witnesses by Martin Longman (April 24, 2019, in the Washington Monthly Political Animal). Bear with me on this as I also quote Longman.
In 1795, two men offered bribes to three separate congressmen. These congressmen introduced a resolution calling on the Sergeant-at-Arms to arrest and detain the two men “pending further action by the House.” A special committee was established to investigate, and they recommended that the House hold a trial. Of course, they then had to determine what would constitute a fair trial. Here is what they decided:
Upon adopting the resolution and after considerable debate, the House determined that the following procedures be adhered to: First, the complaining Members were to submit a written signed information to the accused and for publication in the House Journal. In addition, the accused were to be provided counsel, the right to call witnesses on their behalf, the right to cross-examination of the complaining Members through written questions submitted to the Speaker, and adequate time to prepare a defense.
The trial was held using these procedures. The House voted 78–17 to find one of the accused guilty of contempt for trying to corrupt the integrity of its members. The other man was essentially found not guilty. This was the first exercise of Congress’s “inherent contempt power.” It’s one of three ways in which Congress can try to compel citizens to comply with their requests for information. They can actually arrest people, hold them over for trial, and issue punishments without any help from either the executive or judicial branches.
The second way Congress can try to enforce a subpoena is to make a criminal referral to the Department of Justice. They would send a contempt citation to the Department of Justice via the U.S. Attorney with jurisdiction. The obvious weakness here is that they are often depending on the executive branch to enforce a subpoena against an executive branch official, and this may not happen. [Probably not with William Barr as AG.]
The third option is for Congress to “seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena.” The problem here is that it can be a lengthy process with an uncertain outcome. [Remember that Trump has shifted SCOTUS to a 5–4 conservative majority.]
In contemplating the specter of the House jailing someone, remember this from Longman:
Mike Allen of Axios quotes a source “familiar with the president’s legal strategy” who says “Trump can run out the clock by taking a hardline position. The president thinks it’s in his political interest to keep the fight going, and make it harder for the Democrats to have a coherent message.”
So two of the House’s options are shot leaving only the exercise of Congress’ “inherent contempt power.”
… based on strong precedent and the facts at hand, Congress would still be an excellent position to win any challenge to their authority to hold a contempt trial of their own for Don McGahn and for other holdouts, like former chief of the White House’s Personnel Security Office Carl Kline.
… the House could create a select committee dedicated to compelling the enforcement of their subpoenas, which would help them avoid tying up regular business on the floor.
Ordinarily, I would never advocate taking such a radical step. The procedure seems anachronistic, and the idea that a citizen can receive a fair trial in a political body like the House of Representatives seems absurd and would probably be perceived that way by the modern mind. I don’t like the idea of Congress locking people up.
But the Trump administration is taking steps more alarming, radical and norm-shattering than what I am proposing. I honestly don’t see how Congress has any alternative other than to lose this battle, and a lot of their power and prestige along with it.
In truth, I am no more than modestly concerned about congressional prestige. They need to invoke their inherent contempt authority less for themselves than for the rest of us. This rogue presidency is dangerous and cannot be left unchecked. There is still one way to check them, and as crazy as it might sound, it’s perfectly legal and has a long history.
Congress needs to get rough with non-complying witnesses and lock ’em up.