On Thursday, the acting director of national intelligence, Joseph Maguire, will testify in front of House and Senate committees, where he is expected to field questions about a whistleblower complaint relating to a phone call President Donald Trump had with the Ukrainian president.
But to date, it seems that most congressional efforts to secure testimony from Trump officials past and present have been mostly fruitless, with witnesses either ignoring the subpoenas (Don McGahn, Steve Mnuchin), appearing and invoking inapplicable privileges (Hope Hicks) or testifying in a combative, defiant, non-responsive way (Corey Lewandowski). Lawmakers have responded with an impotent combination of complaining and dithering. But as Congress moves from issuing subpoenas in furtherance of oversight of the executive branch to issuing subpoenas expressly in furtherance of a presidential impeachment inquiry, it’s time for Congress to use the most aggressive arrow in its quiver: the power of inherent contempt.
To date, it seems that most congressional efforts to secure testimony from Trump officials past and present have been mostly fruitless.
There are three ways for Congress to enforce its subpoenas: criminal contempt, civil enforcement and inherent contempt. Criminal contempt relies on Attorney General Bill Barr to assist Congress in criminally prosecuting a non-compliant individual. Given Barr’s past actions, this option is likely not viable. Civil enforcement involves Congress filing suit in federal court to begin the long, inefficient process of litigating the enforceability of subpoenas and determining the viability of privileges invoked by the witness to avoid testifying. Congress has been meandering its way through the civil enforcement process but with endless briefing schedules, court hearings and appeals, the 2020 elections could come and go long before there’s any definitive conclusion to the civil enforcement litigation.
This leaves inherent contempt. Nearly 200 years ago, the Supreme Court emphasized the importance and value of Congress’ contempt power. In the 1821 case of Anderson v. Dunn, the court said, Congress’ power to “hold someone in contempt is essential to ensure that Congress is not exposed to every indignity that rudeness, caprice or even conspiracy may make against it.”
Congress used its contempt powers in the 1920s to arrest and confine Mally Daugherty when he refused to appear pursuant to a subpoena in connection with the Teapot Dome scandal. It exercised its inherent contempt powers again in 1930s against U.S. Postmaster William MacCracken. In the MacCracken case, the Supreme Court reaffirmed the existence and propriety of Congress’ implicit contempt power.
Without surveying all of the procedures involved in Congress exercising its inherent contempt power, the House of Representatives could send the sergeant at arms to arrest someone who is determined to be in contempt of Congress. The contemptuous witness could be confined in one of the secure rooms in the U.S. Capitol (which was done in the Daughtery case) or in the jail cells located at Capitol Police Headquarters. Once held in contempt, Congress could consider fines or imprisonment as a way to motivate a witness to purge the contempt by testifying fully and truthfully. Indeed, there is a corollary in the criminal justice system where a witness who refuses to testify at trial is held in contempt until he/she purges the contempt by testifying.
Thus far, Congress has declined to send the sergeant at arms to arrest witnesses who thumb their nose at lawfully issued subpoenas. Perhaps this is because Congress is attempting to give the administration enough rope to tie itself in knots. That legal strategy, if it is in fact a Democratic strategy, would go something like this: Each time an administration official or other Trump loyalist refuses to comply with a Congressional subpoena, Congress is documenting that information and building a case for the courts. Lawyers can then argue that such behavior is indicative of a cover-up being orchestrated by the White House to stonewall congressional investigations. Democrats understandably thinks this puts them in the best posture to win future court battles; it is what lawyers call perfecting a litigation position.
The problem is that perfecting litigation positions can result in lengthy delays and give the perception of a lack of zeal and determination to fight for justice. For decades, I worked in a professional world where I saw some lawyers perfect their litigation positions to death. Indeed, there is significant friction between spending lots of time perfecting litigation positions and fighting executive branch corruption in an aggressive and timely manner.
The problem is that perfecting litigation positions can result in lengthy delays and give the perception of a lack of zeal and determination to fight for justice.
In a prosecutorial setting, when lawyers spend too much time perfecting litigative positions, justice is delayed, the perpetrators continue to commit crimes while prosecutors are busy “perfecting” their case and the victims lose faith that the wrongdoing will be addressed.
In a congressional setting, this strategy causes the American people to grow frustrated, begin losing faith in the process and, by extension, in their elected representatives. We have seen this phenomenon in the rising drumbeat of criticism from the left of the seemingly glacial pace of tangible investigative progress.
Let’s face it, impeachment proceedings are unlikely to make the administration morph into a law-abiding group. I understand Congress wants to put itself in the best possible litigative position so that it can compel witnesses to cooperate via the civil court process. But I also contend that by selectively deploying its inherent contempt powers, Congress could actually strengthen its litigative position.
Let’s assume the following: Congress subpoenas a Trump administration official and that official refuses to testify. Congress then goes through the procedure to hold the witness in contempt. Congress then confines and/or imposes daily fines on the witness as a way to motivate the witness to testify truthfully. As a result, either the witness will relent and testify or the witness will remain loyal to Trump and therefore will remain in contempt. If the witness chooses the first path — testifying — then Congress makes tangible progress in its investigative hearings. If the witness steadfastly refuses to testify, that information will be provided to the court as part of the civil enforcement case, strengthening Congress’ litigation position.
Inherent contempt is not for the genteel or the faint of heart. It’s an aggressive approach to a dramatic problem. But when you are in a battle for the health and viability of our republic, you don’t leave your most effective arrow languishing in your quiver.