Members Only | June 7, 2019 | Reading Time: 3 minutes
Jailing Trump Officials Should Be an Option
The House has power—if it uses it.
The House Democrats appear to be taking off the table the threat of jailing Trump officials who continue to defy congressional subpoenas. That would be a mistake.
They are, I think, moving in the right direction. A resolution heading to the floor on June 11 would give the House Judiciary Committee sweeping powers to bring future contempt charges. The measure would find Attorney General William Barr and former White House counsel Don McGahn in civil contempt, a move that if passed would trigger a lawsuit over who gets what kind of access to people and documents.
But if the Democrats don’t revive, or at least appear to be prepared to revive, the Capitol’s long-dormant powers of inherent contempt, they could vote for civil or criminal contempt all day every day and it wouldn’t matter. Contempt must have teeth to be compelling. It must have bite in order to deter future obstruction of Congress.
There are three kinds of contempt.
Contempt must have teeth to be compelling.
One is criminal. That’s when a chamber of the Congress decides to refer contempt charges to the US Department of Justice, which, in turn, brings them before a grand jury. Since Barr is the head of Justice, he’d most likely invoke what’s called prosecutorial discretion, meaning the power of decide what gets brought to a grand jury and what doesn’t. In this climate in which the president is “fighting all the subpoenas,” holding any official in criminal contempt is pretty much a waste of time.
Another is civil. That’s when a chamber of the Congress decides to file a lawsuit asking a federal judge to order administration officials to obey its subpoenas. This is what the Democrats are currently focusing on, and it’s the prudent thing to do. Federal judges have already ruled against administration efforts to block access to Donald Trump’s finance records. The president is appealing the ruling, but any day that the Democrats can get a federal judge to side with them is a good day for the Democrats.
The afterglow of legal victory lasts only so long, and in any case, court battles can drag on. The Democrats accuse Barr of withholding an unredacted version of the Robert Mueller report, and they accuse McGahn of shielding his former employer. There is some utility in just appearing to hold officials accountable, but if the Democrats hope to yield real outcomes, they should not pin their hopes on a protracted lawsuit.
Finally, there is inherent contempt. This power has gathered dust for decades. According to Scott Bomboy of the National Constitution Center, it was last exercised in 1927 after the Senate voted to authorize a deputy to arrest the brother of then-Attorney General Harry Daugherty on the charge of twice failing to comply with a subpoena. Mally Daugherty won an appeal, but the Supreme Court overruled.
Justice Willis Van Devanter, writing for the majority, said that: “Each house of Congress has power, through its own process, to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution. This has support in long practice of the houses separately, and in repeated Acts of Congress, all amounting to a practical construction of the Constitution” (my italics).
Let me pause to spell out the problem.
The House wants to see documents and hear testimony. Trump has said no can do. When a president says no can do, the Congress has options. It must, because a president who says no can do in the extreme is one saying he will not be held accountable to the people. Since the Congress most represents the people, the Congress must force the issue or accept that it, and the people, are powerless.
Those three options are criminal, civil and inherent contempt. In the current political climate, the first option is a waste of time. It depends on Barr doing his job. Since Barr is transparently Trump’s toady, that option is a dead end. The second option, civil contempt, has limited utility. It might yield outcomes but it could take forever. Of the three, the third option, inherent contempt, has the greatest potential. It could compel compliance even if not used. The mere threat of being jailed might be enough.
Yet the House Democrats appear to be signalling that they are not going to use that option. That would be a mistake. The stakes are not merely partisan, though they are intensely partisan. The stakes are constitutional. No president can be allowed to fight “all the subpoenas” and get away with it. The House has rights. It has authority.