It is just 40 days (is anyone else counting down?) until the new Congress is sworn in, and Democrats take the gavel of key oversight committees in the House. Those committees will be able to conduct long-needed investigations into everything from voter suppression, to family separations at the border, to corruption throughout the Cabinet, to Trump’s own finances. What will enable these investigations is the Democrats’ newly-won subpoena power. Those Democratic-led committees will be able to demand documents, communications, and sworn testimony from officials throughout the executive branch.
But what happens when the Trump Administration simply ignores these subpoenas? When they just refuse to hand over documents or appear before the committee? Well, DKos has examined these questions before, back in 2007–2008. Back then, we also had a GOP administration that was trying to subvert the Justice Department, when George W. Bush fired a number of U.S. Attorneys. As that scandal gathered momentum, there were a series of diaries, written mostly by David Waldman, outlining the levers of power in the case of confrontation between the White House and Congress over investigatory power. This information has even more relevance today, since when it comes to respect for the rule of law, Trump and his cronies make the George W. Bush Administration look like a Boy Scout troop.
The first of these diaries is Looking ahead: what happens when the subpoenas are defied? It plays out the confrontation: First, the Administration claims executive privilege as an excuse for why their officials should have to testify. The House Dems sue, asking the court to force the testimony, and the courts...punt:
...It's precisely the sort of case the courts tend to punt, under the so-called "political question doctrine." Political questions are those the courts will—at least initially—refuse to decide, preferring to leave the outcome in the hands of the political branches (the executive and legislative), on the theory that the power to decide them resides more properly with those who derive their authority from the voters.
So Congress’ next move is to cite the official for Contempt of Congress. The most recent precedent for that goes back to 1982:
The last time the Congress actually voted to hold an executive branch official in contempt of Congress was in the 1982 case of EPA Administrator Anne Gorsuch Burford. Gorsuch (who was later remarried, to Bureau of Land Management head Robert Burford) was found in contempt by a House vote of 259-105 (with 55 Republicans voting in favor). The charges were, in keeping with practice in statutory contempt cases, referred to the U.S. Attorney for the District of Columbia for prosecution.
And a lightbulb switches on! The actual prosecution of contempt of Congress charges is the responsibility of a U.S. Attorney.
(Fun fact: The Anne Gorsuch in question is—yup—the mother of Trump-appointed Supreme Court Justice Neil Gorsuch.) So, it’s up to the U.S. Attorney for D.C. to prosecute the contempt. Now, it’s hard to gauge how much respect Trump’s hand-picked U.S. Attorney, Jessie K. Liu, will have for Conress’s authority when push really comes to shove. But she held some politically-sensitive posts in the George W. Bush Administration, worked on the Trump Transition Team, and she was one of the U.S. Attorney candidates Trump took the unprecedented step of interviewing before appointing her, so I’m not holding out much hope. And in fact, the past doesn’t give us much hope either. Again going back to 1982:
And just what happened in that case? (PDF)
The Justice Department, anticipating the House vote, moved quickly: “Immediately after the House vote and prior to the delivery of the contempt citation,” the department chose not to prosecute the case.
Ah, OK. So it’s up to the DOJ. I feel so much better now 🙄. Given that the Acting Attorney General will likely be under investigation himself, not to mention that USA Liu could be called before the House Judiciary Committee to describe what went on in that “interview,” we’re not likely to see any enforcement action coming from there. It gets better: In the 1982 case, the DOJ “asked a district court to declare the House action an unconstitutional intrusion into the President’s authority to withhold information from Congress,” and the court punted again. Then we got this:
Following the Gorsuch contempt, the Office of Legal Counsel wrote an opinion on May 30, 1984, concluding that as a matter of statutory interpretation and separation of powers analysis, a U.S. Attorney is not required to bring a congressional contempt citation to a grand jury when the citation is directed against an executive official who is carrying out the President’s decision to invoke executive privilege. [Notes omitted, and emphasis supplied]
Great, so it’s the Office of Legal Counsel that gets the final word. And we all know just how independent the OLC is. So we’re already in uncharted waters, with an illegally and unconstitutionally-appointed Acting AG declaring it’s perfectly fine to not pursue contempt charges against...himself. But the showdown isn’t over—Congress has another option.
The process described above is “statutory contempt.” The alternative is “inherent contempt,” which Waldman described in another diary the next day, Dusting off "Inherent Contempt":
Yesterday, we discussed the fact that the standard, statutory contempt of Congress procedure was probably inadequate to the task of enforcing the Democratic Congress' hard-won subpoena power[...]
A few astute commenters observed that Congress has another weapon in its arsenal for backing up the subpoena power: the long-dormant "inherent contempt" process, described below in the Congressional Research Service's "Congressional Oversight Manual" (PDF):
Under the inherent contempt power, the individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned. The purpose of the imprisonment or other sanction may be either punitive or coercive. Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least in the case of the House, beyond the adjournment of a session of the Congress) until he agrees to comply. The inherent contempt power has been recognized by the Supreme Court as inextricably related to Congress’s constitutionally-based power to investigate.
The most obvious benefit of inherent contempt is that it's conducted entirely "in-house," that is, entirely on the authority of the legislative branch. The most obvious drawback? Spending time on a trial. Well, that and the scene of having the Sergeant at Arms and the Capitol Police physically barred from entering the White House to arrest those who've defied subpoenas.
So...wow. There’s actually the prospect of House Democrats sending armed agents to arrest Trump Administration officials who defy their subpoenas.
How did this play out in 2007? In July, the House Judiciary Committee recommended to the full House that contempt charges be brought against then-Chief of Staff Josh Bolten and previous White House Counsel Harriet Miers. As expected, the Bush DOJ declared it would refuse to prosecute the contempt charge. A Senate Committee followed in December. After a frustratingly long time, the House finally voted in February 2008 to find Bolten and Miers in contempt. And just as they promised, the Bush DOJ refused to prosecute (link to 10 year old original AP article broken; here’s a WaPo article on it). The HJC then sued to have their subpoenas enforced. In July, a judge found in favor of the Committee and ordered Miers and Bolten to testify. The White House planned to appeal and asked for a delay in the judgment, which was refused. House Democrats teased the idea of pursuing inherent contempt for Karl Rove, who had also defied subpoenas (fixed link from diary).
But at that point, the clock pretty much ran out. When the stay of the order for Miers’s and Bolten’s testimony was refused, it was already late August 2008, and Congress only had another month in session before recessing for election season. And in the middle of that month, Lehman Brothers collapsed, bringing on the financial crisis in full force. So the contempt charges were not pursued further in that Congress. Miers and Rove ultimately agreed to testify before Congress, but that was not until March 2009, after they lost the protective umbrella of the Bush administration. So the showdown between Congress and the White House was never decisively resolved.
What will happen this time around? Hopefully, things will at least proceed faster. After all, the U.S. Attorney firings, which brought on the Congressional inquiries in the first place, didn’t take place until December 2006. Now, there are investigations teed up and ready to go on subjects that have been examined already for years. And hopefully, it won’t take months to go from one stage to the next, or to realize that Trump’s cronies won’t comply with any demands unless they’re absolutely forced to.
So, will the Democrats exercise their inherent contempt authority and threaten to take officials into custody who defy subpoenas? We’re well into the realm of speculation now, but it’s worth taking a look at two other diaries, which address the question of whether the President can pardon someone held for inherent contempt:
The general upshot is no. But there will certainly be many court proceedings before the coming disputes between the White House and Congress play out. And this is ominous:
The only wild card here is this: Fred Fielding's chief accomplice in his 1982 gambit claiming that Congress did not have this power, despite all precedent to the contrary?
Now Supreme Court Chief Justice John Roberts.
We do live in interesting times.
Edit: Thanks for the spotlight!