House Intelligence Committee Chairman Adam Schiff took part in a live event on Tuesday with the Washington Post. In discussions about how the House would respond to Donald Trump not just disregarding congressional subpoenas, but actively suing the House and suing third parties to keep them from cooperating with the House, Schiff stated that Congress would use “whatever means we can to enforce our oversight responsibility,” including the possibility of “fence funding” Trump’s priorities.
By this Schiff isn’t suggesting that Congress would provide more money for Trump’s border fence. What he’s suggesting is that the House would specifically write funding bills in a way that eliminated funding for Trump’s top priorities unless Trump cooperated with congressional oversight.
Congress using its power of the purse is one way that Trump could be brought under some level of control … except that to do so would also require the cooperation of Republicans in the House. Unlike the possibility of issuing contempt citations, which would proceed directly to court, or of reviving the concept of inherent contempt—which would also likely immediately head for court—effective use of funding would require passing legislation through both chambers. And it would also have to be done in a way that kept Trump from simply declaring another national emergency and simply appropriating the money he wanted in any case.
It would be great if there were a simple, effective way that Congress could enforce its oversight authority. But despite the headlines that suggest that Elijah Cummings or Adam Schiff is about to send the sergeant-at-arms to bring someone in and lock them in the House basement … there is no magic solution.
The simplest and most obvious step is to hold a vote and rule that someone is in contempt of Congress. That charge can then proceed to court, where the ruling will be mostly along the lines of what Donald Trump has argued in his fight against subpoenas: Does the matter at hand fall within the "legitimate legislative sphere"? If so, the party found in contempt could be fined up to $100,000 and held up to a year … and Trump could choose to test his pardon power. But civil contempt charges are generally thought to be exempt from Trump’s “Hey, probably less universal than you though” pardon power.
The second possibility is to have Congress revive inherent contempt, a charge which hasn’t effectively existed since 1935. With inherent contempt, Congress itself genuinely could find someone in contempt and apply a penalty that isn’t so neatly defined, but generally consists of just parking them until they agree to testify. The best parts about inherent contempt: It requires only one chamber, it doesn’t run through court, and, because it’s also considered a civil contempt procedure, it’s also likely free from the possibility of Trump overturning it. So, hey, it sure looks like the House really could send that sergeant-at-arms and … only, no. Rulings going back to the 19th century strictly limit the issues over which Congress can apply inherent contempt—just as they do with generic contempt of Congress. And deciding whether or not a charge fits in that box would certainly mean a trip to the courts. So it’s very unlikely the House will ever dust off a storeroom and fit it with bars. Even in the case of inherent contempt, it’ll be court first, Congress second.
Finally, the House can do as Schiff warned on Tuesday: simply put its foot down and refuse to fund anything Trump wants until he stops obstructing congressional oversight. But that’s difficult on a number of fronts. Not only would it require butting heads with the Senate, but it might even mean collecting enough votes to handle a veto, since Trump would be unlikely to sign a bill that gave a scoop of ice cream to everyone else but left him out of the party. Republicans were willing to go along with Trump enough to protect his veto on the national emergency, so there’s little reason to think that they would cross him up on this occasion—especially when many Senate Republicans have already gone all-in on endorsing Trump’s congressional contempt.
The smart thing for the House to do is likely … all three. File charges of contempt. Begin reviving inherent contempt. And start authoring bills that specifically write around Trump’s priorities. All of them, or none of them, may work. So try them all.
Then get creative. It’s time for more options. And while you’re thinking of the next thing, stay vocal, because if Americans just hear from Republicans, they’ll think that Trump gobbling up congressional authority is just peachy.