May 10, 2019
The House Judiciary Committee voted 24-16 to recommend the House hold Attorney General William Barr in contempt of Congress for failing to comply with a subpoena seeking an unredacted copy of Robert Mueller’s report. The vote came after President Donald Trump asserted executive privilege to prevent the unredacted report from going to Congress.
Congressional rules empower all committees with the authority to compel witnesses to appear and testify or produce documents for matters being investigated by a Congressional committee.
In 1961, the Supreme Court ruled that a Congressional committee must meet three requirements for a valid enforceable subpoena. First, the committee’s investigation must be authorized by a chamber congress; second, the investigation must pursue “a valid legislative purpose;” and third, the specific inquiries must be pertinent to the subject matter that has been authorized for investigation.
Once the threshold is met, Congress has three options to enforce a subpoena. First, Congress’ inherent contempt power provides constitutional authority to detain and imprison an individual until that person complies with the subpoena. The last time Congress used its inherent contempt powers was in 1934 when the Senate held William MacCracken, a former member of Herbert Hoover’s administration, after he refused a subpoena. According to the Washington Post, the Senate had nowhere to hold MacCracken so he was imprisoned at a hotel.
Second, Congress can pursue a criminal contempt citation through the executive branch seeking criminal prosecution for contempt. This is the most common method used by Congress. The person accused of contempt is charged with a misdemeanor punishable by a fine and up to a year in jail.
There are some practical concerns with this option. Where the official refuses to disclose information pursuant to the president’s decision that such information is protected under executive privilege, it is unrealistic that the Department of Justice (DOJ) will pursue a prosecution for criminal contempt. More to the point, under the current facts the DOJ would be asked to prosecute its boss, the attorney general.
Finally, Congress may rely on the courts to enforce a congressional subpoena. Under this option, Congress may seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena.
A number of obstacles face Congress in any attempt to enforce a subpoena issued to the Attorney General, an executive branch official. Congress may be able to enforce its subpoena through a civil lawsuit; however, relying on this option to enforce a subpoena directed at the attorney general may be inadequate to protect the authority of Congress due to the time required to achieve a final court ruling.
The two most recent court cases seeking to enforce a Congressional subpoena involved former Attorney General Eric Holder in 2012 and former White House counsel Harriet Miers in 2008. According to a 2017 report from the Congressional Research Service, ”(B)oth conflicts ended the same way: The contempt charge was stuck in a court battle for so long that a new president and Congress were elected and new administration officials took office along with them.”
Trump’s blanket claim of executive privilege appears to be an effort to shield Barr from contempt. Essentially, the president is saying the redacted aspects of the report are privileged and Barr cannot turn them over to Congress.
Trump’s efforts parallel Richard Nixon’s unsuccessful effort to prevent his White House Counsel, John Dean, from testifying pursuant to a subpoena from the Watergate special prosecutor.
According to Michael Conway - a former counsel to the House Judiciary Committee - like Nixon, Trump is trying to use an expansive claim of executive privilege to thwart a legitimate Congressional investigation.
Trump seems to be prepared to do as Nixon did in 1973. Conway wrote on the NBC News website, “Nixon predicted that the Senate would question his claim of executive privilege if Dean were required to testify. If that occurred, Nixon said ‘we’ll let it go to the (Supreme) Court. Fight it like hell.’”
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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