Captain Chaos, our always insecure megalomaniac Twitter-troll-in-chief, has decided that a constitutional crisis, in a pathetic attempt to run-out-the-clock until November 2020, is his best campaign strategy (not a legal strategy). Trump Vows Stonewall of ‘All’ House Subpoenas, Setting Up Fight Over Powers:
“We’re fighting all the subpoenas,” Mr. Trump told reporters outside the White House. “These aren’t, like, impartial people. The Democrats are trying to win 2020.”
Mr. Trump’s flurry of moves this week to block multiple congressional investigations signaled a new phase of constitutional friction that could redefine long-murky boundaries of Congress’s power to conduct oversight of the executive branch — and the power of presidents to keep government affairs secret from lawmakers.
As a matter of politics, Mr. Trump’s strategy sets the stage for open warfare with House Democrats heading into the 2020 election.
Just as a reminder, the American people elected Democrats to Congress in the largest midterm election landslide since the post-Watergate election of 1974, demanding that the Congress hold the corrupt Trump administration accountable (“drain the swamp.”) Donald Trump is defying the popular will of the American people, not just the Congress.
Such a blanket refusal has serious implications not only for the relationship between the current Congress and the administration, but also for the future ability of Congress to conduct oversight of any administration, depending on how the intensifying fight plays out.
“It is a radical departure and a radical theory from anything that has been done before,” said Phil Schiliro, a onetime Democratic staff director for the House oversight committee and a former top legislative adviser to President Barack Obama.
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[I]n many past cases, there was a mutual recognition that Congress had substantial legitimate oversight power. Republican and Democratic administrations would reach an accommodation through a negotiation about who would ultimately testify or the extent of documents to be provided. The new indication from the Trump White House is that the president is drawing a firm edict against cooperation, and few Republicans appear willing to break with him even to protect the authority of their institution.
In other words, congressional Republicans would abdicate and subjugate the Article I legislative branch to the Article II executive branch, in violation of their oaths of office. These anti-democratic authoritarian Republicans would prefer an autocracy to democracy if it means they can hold on to power.
Congress possesses “inherent contempt” power which permits it to bypass the executive branch (A.G. “Baghdad Bill” Barr), and the judicial branch (“my Supreme Court,” as Trump is wont to say).
Adam Cohen explained the “inherent contempt” power of Congress in an op-ed back in 2007, in relation to Joshua Bolten, the White House chief of staff, and Harriet Miers, a former White House counsel, being in contempt for failing to comply with subpoenas in the United States attorneys scandal. Congress Has a Way of Making Witnesses Speak: Its Own Jail:
This is where inherent contempt comes in. From the Republic’s earliest days, Congress has had the right to hold recalcitrant witnesses in contempt — and even imprison them — all by itself. In 1795, shortly after the Constitution was ratified, the House ordered its sergeant at arms to arrest and detain two men accused of trying to bribe members of Congress. The House held a trial and convicted one of them.
In 1821, the Supreme Court upheld Congress’s right to hold people in contempt and imprison them. Without this power, the court ruled, Congress would “be exposed to every indignity and interruption, that rudeness, caprice, or even conspiracy, may mediate against it.” Later, in a 1927 case arising from the Teapot Dome scandal, the court upheld the Senate’s arrest of the brother of a former attorney general — carried out in Ohio by the deputy sergeant at arms — for ignoring a subpoena to testify.
The Congressional Research Service issued a report in July  that confirmed Congress’s inherent contempt powers. It explained how they work: “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 in the Capitol jail.” Congress can do this, the report concluded, to compel them to testify or to punish them for their refusal to do so.
Ten years later, Time magazine explained, Can Congress Jail Witnesses Who Refuse to Cooperate?
With both the House and the Senate conducting investigations into Russian meddling in the 2016 election, committees are issuing subpoenas and dealing with witnesses who may not be eager to talk.
So what happens if a witness refuses to cooperate?
Congress can hold people in contempt if they obstruct committee proceedings by refusing to testify or provide documents, or for bribing or libeling a member. In 1821, the Supreme Court ruled that Congress needs the power to hold someone in contempt or else it would be “exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it.”
The full House or Senate can approve a contempt citation by a majority vote, and then must hand the matter to the U.S. attorney for the District of Columbia, “whose duty it shall be to bring the matter before the grand jury for its action,” according to the law.
This is actually an explanation of the statutory referral for criminal or civil contempt. This where A.G. “Baghdad Bill” Barr comes in. The Justice Department, under both Republican and Democratic administrations, has declined to prosecute one of their own for contempt of Congress.
One contempt citation in recent memory was brought against Anne Gorsuch, the mother of new Supreme Court Justice Neil Gorsuch, when she was EPA Administrator in the 1980s. The House cited her with contempt, but the Justice Department didn’t prosecute the case.
Similarly, in June 2012, the Republican-controlled House held Attorney General Eric H. Holder Jr. in contempt of Congress for failing to turn over documents sought in a gunrunning inquiry. The Justice Department didn’t prosecute the case.
And in October, the House passed a bill that would strengthen congressional subpoena enforcement and allow expedited court review if witnesses don’t comply with subpoenas.
But, frequently, when the topic of contempt-of-Congress charges comes up, a far harsher possibility makes headlines: the Capitol jail.
There is some real history backing up that threat — in that 1821 case, the Supreme Court stood behind Congress’ right to imprison people. But these days, it’s just as likely that the source for the idea is a bit of confusion.
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[The Capitol jail] doesn’t exist anymore, though its address is still important as the location of the Supreme Court building.
As the House of Representatives’ Office of the Historian has explained, most people in American history who have been held by the House over contempt charges (a very small number to begin with) have not been put in any specific “Capitol Jail.” Rather, they’ve just been put under lock and key within a spare room at the Capitol or even in a nearby hotel.
In a 2003 Senate oral history interview, longtime staffer Chuck Ludlam told the Senate Historical Office that — as part of the work he was doing to advocate for an idea to better enforce subpoenas — he had once spoken to the Architect of the Capitol about the matter, and was told that there was evidence that “several rooms” at the Capitol had been used to guard people at one point or another, but that it’s not clear that any of those rooms would have been onlyused for that purpose. And one of the rooms that’s most commonly mistakenfor a jail at the Capitol (it’s in the basement and has bars) was in fact meant as a possible spot for George Washington’s tomb.
But, just because there’s no physical jail doesn’t mean there’s no right for Congress to detain individuals — and in fact the Capitol Police do maintain a holding cell a few blocks away.
To review, 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.
According to this 2017 assessment from legislative attorney Todd Garvey for Congressional Research Service, Congress has not utilized its inherent contempt power since 1935.
As Martin Longman explains at the Political Animal blog, Congress Needs To Lock Up Non-Complying Witnesses:
There are a variety of reasons that could explain why the practice fell out of favor, but for almost half of this country’s history it was the primary way that Congress imposed its will. It wasn’t until 1857 that Congress enacted a statutory criminal contempt procedure that allowed them to enlist the help of the Justice Department, and they made little use of it for another twenty years.
One reason Congress wanted an alternative to holding trials for contempt is that they were time-consuming. For a long time they were reluctant to use this alternative, however, because it was seen as more punitive than coercive, and therefore unlikely to result in them successfully receiving the information they were seeking. Indeed, once someone has been found guilty of contempt of Congress in the federal courts, their obligation to Congress is generally finished. Only in rare cases has Congress intervened to rescind a criminal referral after a witness relented and agreed to cooperate. This process has a decent deterrent value, as non-cooperating witnesses can receive fines and jail time. It generally does not get Congress what it actually wants. These shortcomings were gradually accepted as preferable to holding congressional trials.
As for civil enforcement of subpoenas, this is a relatively new option. In 1978, the Senate created a procedure that gives the U.S. District Court for the District of Columbia the jurisdiction to enforce their subpoenas. The House has no formal procedure in place, but has occasionally used a special authorizing resolution to accomplish the same thing. The advantage of going this route is that it lets the judiciary arbitrate disputes between the legislative and executive branches. If Congress can’t get the U.S. Attorney General to comply with their requests, the civil enforcement avenue is the way to go.
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The basic constitutional crisis we have is that the executive branch is refusing to honor congressional subpoenas, and Congress certainly cannot compel the Department of Justice to act as their enforcement arm. That knocks one of Congress’s three options out from under them. They could go to the courts, but that is time-consuming. The fact that the White House wants to go to court indicates that they see stalling as a viable strategy for thwarting the will of Congress. Trump has even gone so far as to sue Democrat chairman Elijah Cummings of the House Government Reform and Oversight Committee in an effort to avoid compliance. Clearly, relying on the courts to back them up is not consistent with a timely resolution of these matters. They’re also not guaranteed to win given the conservative bent of the Supreme Court.
Given that Congress doesn’t seem likely to vindicate its interests in a satisfactory manner through the first two options, that leaves the one that has lain dormant since 1935. They could, for example, have the Sergeant-At-Arms arrest Don McGahn and hold him over for trial in the House.
Before I go on, I must warn you that this too could fail. There are some judicially-imposed limitations on Congress’s inherent contempt authority. Namely, based on the partially-superseded 1881 Kilbourn v. Thompson ruling, the information Congress seeks must be plausibly related to legislation they might pass or some regulatory scheme they’ve enacted. A conservative Supreme Court might find reasons to side with the president and argue that anything from his tax returns to the relevancy of the infamous Trump Tower meeting with the Russians does not meet that criteria.
However, 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.
After a careful review of the relevant case law and congressional precedent, Garvey concludes that 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.
[C]ongress needs 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.
“Lock them up! Lock them up! Loch them up!” Karma’s a bitch.