What options do Democrats have to enforce Congressional subpoenas?

3 mins read

#SundayMorning thread deep dive with Kaz Weida

Let’s do a deep dive on congressional subpoenas. As impeachment inquiries ramp up, what options do Dems have to enforce subpoenas? The White House has been ignoring subpoenas for several months. Will it be different now?

Congress really has three ways they can enforce subpoenas.

  1. Criminal contempt
  2. Civil enforcement
  3. Inherent contempt

Let’s go through these one by one and discuss the viability of each option. First, up criminal contempt.

I’ll be frank. With good ole Billy Barr at the helm of the DOJ, criminal contempt is a dead end. That’s because it requires the support of the DOJ to find a person in contempt and enforce the subpoena. Right now the DOJ is the WH legal defense team.

Next up, civil enforcement. Back in June the House voted to give committees the power to sue officials who ignore Congressional subpoenas. The first person they used it on was Don McGahn, who refused to testify about WH obstruction of Mueller.

Currently, the lawsuit is still sitting in court, where lawyers had previously been negotiating terms of McGahn’s testimony and wading through red tape. This process seems too slow & inadequate to address the urgency of our constitutional crisis.

So now we arrive at the last option, and it’s something of a scorched earth approach. Inherent contempt. And it’s only been used a couple of times since it was established by the Supreme Court as legal precedent in the 1821 case of Anderson v. Dunn.

Yes, Congress does have the power to arrest officials who refuse subpoenas. First, they have to issue a vote for contempt of Congress. Then they could circumvent the DOJ and send the sergeant-at-arms to detain someone in secure rooms at the Capitol.

There’s a reason this has never been done without the DOJ & it’s not for the faint of heart. The political blowback would be tremendous & unprecedented. What’s more likely (and probably a smarter strategy) is that Congress can pursue leveraging fines.

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure

Each contempt vote can continue to add credence to the civil case, especially backed by an official impeachment inquiry. The courts and the court of public opinion would compel compliance. At that point, officials aren’t just in contempt of Congress.

White House officials demonstrate inherent contempt for our Consitution by refusing to recognize the power of co-equal branches of government. As the crisis escalates, members of Congress will face a choice. Enable a dictatorship or uphold the principles of democracy.

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