Donald Trump has drawn his line in the sand. He’s refused to provide a single document, or a single witness, to the House of Representatives since Democrats took control in January. That includes ordering both current and former White House officials to ignore congressional subpoenas. House Oversight Chair Elijah Cummings had already issued a strong statement warning officials to think twice about following Trump’s orders. On Thursday, Oversight Committee member Gerry Connolly took the next step, making it clear that those who continue to ignore the law can expect to be jailed.
According to CNN, Connolly let those officials know that the House intends to back up its subpoenas with action. Connolly said the House will “use any and all power in our command to make sure it's backed up -- whether that's a contempt citation, whether that's going to court and getting that citation enforced, whether it's fines, whether it's possible incarceration.”
In talking about incarceration, Connolly seems to be indicating that the House would revive the concept of “inherent contempt.” Under inherent contempt, the Congress itself can conduct trials to convict individuals of obstructing the legislative process. Both the House and the Senate conducted such trials prior to 1934, when the Congress decided that such trials were too time-consuming and instead began allowing contempt cases to be handled in court. However, before the practice ended, the Supreme Court upheld Congress’ right to hold individuals in inherent contempt on multiple occasions.
Over the years, proposals have been made that would revive and streamline the inherent contempt process to avoid lengthy trials on the House or Senate floor that interfered with the legislative schedule. But those proposals haven’t gained a great deal of traction, because ignoring a congressional subpoena has been a rarity … until now.
So when Connolly says, "We will go to the max to enforce the constitutional role of the legislative branch of government,” that really does include the prospect of sending the sergeant-at-arms to detain someone and compel their appearance. If the idea of seeing Stephen Miller led away in handcuffs is something that might make your day … hang in there. It could happen.
Washington Monthly provides a review of the legal options open to Congress. Since 1934, the option used has been primarily to “seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena.” Contempt of Congress is a misdemeanor, with a maximum penalty of a $100,000 fine and a year in jail. But gaining a conviction can easily take months, or even years, of hearings, motions, and delays.
A second option is to make a criminal referral directly to the Department of Justice … but when the attorney general is one of those who ordered an official to disobey a subpoena, that’s not exactly possible.
The third option is inherent contempt. Through that process, Congress can conduct the trial directly, without needing either permission or assistance from the executive or judicial branches. It hasn’t been done in 85 years, but there is absolutely nothing that prevents it from being done now. There was no change of law or ruling of the court that stopped the use of inherent contempt; it just fell out of use because it was inconvenient.
But then, exactly how inherent contempt is handled is also completely up to Congress. If the House wanted to pass rules that would move the trial to a committee and allow staffers to deal with much of the tedium that took up time on the floor, it absolutely could. For the first century of the United States’ existence, inherent contempt wasn’t just the primary way that Congress convinced those it called to appear; it was the only way. It’s the use of the courts that’s a later addition. The civil enforcement of congressional subpoenas in court only dates back to 1978.
With Trump blocking not just witnesses and documents related to the Russia investigation, but also witnesses on all topics, from national security to immigration, the House could follow the pattern of recent years and charge those who refuse to appear and send the matter to court, which is exactly what the White House wants. The process would be slow and tedious, and would offer plenty of opportunities for Twitter-based ranting. It’s unlikely any of it could be resolved before 2020.
Congress can’t go to the courts. It certainly can’t ask the DOJ to enforce its subpoenas. That leaves only option 3. If the House really wants to hear from the people it’s subpoenaed, inherent contempt seems like the only real option.
However, it’s not a guaranteed fast track to seeing Miller and others chained to a chair in the House chamber. Supreme Court rulings may have agreed that Congress has the right to conduct trials for inherent contempt, but those rulings have also narrowed the situations under which Congress can conduct such trials. It’s entirely possible, and entirely likely, that an attempt to use inherent contempt would promptly end up being reviewed by Justice Beer.
But the House can give it a shot. And if that fails, it can always move to option 4: just start impeachment.