Opinion | Congress Can Issue Subpoenas. Will They Matter?
At last, Trump opponents have reason to hope: In taking back the House, Democrats will finally be able to pursue wide-ranging investigations into the administration. The menu of possibilities from the first two years of the Trump administration is dizzying: from possible malfeasance with the inauguration fund to the possible illegal use of the military to repel Central American immigrants.
But critics of the president should manage their expectations. They are likely to be disappointed as they see the difficulty the new majority will have enforcing subpoenas, particularly against members of the executive branch.
The stakes of Congress’s power — or lack thereof — were made that much more stark with the forced resignation of Attorney General Jeff Sessions on Wednesday. His replacement, Matthew Whitaker, Mr. Sessions’s chief of staff, will assume immediate oversight of the Mueller inquiry.
Mr. Whitaker has expressed skepticism about the scope of Mr. Mueller’s investigation — including musing on national TV about shutting it down by starving it of funds — and has even questioned Marbury v. Madison, the very foundation of judicial power. His appointment set off alarms on Capitol Hill and got Democratic congressmen like Chuck Schumer and Jerrold Nadler talking with renewed urgency about passing legislation to protect Mr. Mueller from political interference.
The impediments to effective investigations are not legal, but practical and political. The ability of Congress to subpoena executive branch officials is well established as part of its legislative powers in Article I of the Constitution. The courts have reasoned that to legislate effectively, Congress must be able to issue subpoenas demanding the production of evidence. That, in turn, implies the punishment of those who fail to comply with those subpoenas. Moreover, the Supreme Court, in a case that grew out of the Teapot Dome scandal in 1927, held that the investigative power of Congress is at its peak when lawmakers look into fraud or maladministration in another government department.
Perhaps highest on Congress’s agenda will be securing the tax returns that the president has so far managed to hide from the public.
Alas, it’s not so straightforward. The issue of a contempt citation for refusal to comply with a congressional subpoena turns out to be merely the starting point of a legal obstacle course that, in recent years, has repeatedly permitted executive branch officials to dodge Congress’s demands.
When the recipient of a congressional subpoena decides to defy it, in theory Congress can respond with one of three legal mechanisms. Each is dependent on action by a different branch: Congress itself, the executive branch or the courts.
First, it can invoke its inherent power under the Constitution to deem the offender in contempt. In this old-fashioned approach, Congress acts as prosecutor, judge and jailer: The House sergeant-at-arms arrests the offender, a trial ensues before the full House, and the contemner goes to the quaint jail on the Capitol property.
The problem here, however, is that exercise of the inherent power, while legally sound, has long been considered cumbersome, constitutionally suspect and politically unpalatable. For that reason, it hasn’t been employed since 1935, and the new Democratic majority is very unlikely to dust it off.
Second, the House can file criminal contempt charges with the local United States attorney under a statute that says that the prosecutor has the “duty” to bring the matter before the grand jury.
The rub here is that the executive branch has taken the position that its duty is really its prerogative, under the argument that separation of power concerns preclude another branch from instructing it when to bring a case. Thus, a command from the president not to bring the case is a functional checkmate.
That leaves a final tool, which has become the de facto sole option: Congress can bring a civil enforcement action under the 1978 Ethics in Government Act. If the district court agrees that the subpoena is valid, it can order compliance, backed by its own contempt powers in the event of continued intransigence, including jailing the offender until he complies.
It seems straightforward. And in fact, until about 15 years ago, the House had never had to bring an enforcement action to prevail in a subpoena battle with the executive branch. Just the threat of a contempt action was sufficient to produce a negotiated compromise.
But the political dynamic underwent a seismic shift in 2007, with the House’s investigation of the mass firing of United States attorneys by the George W. Bush administration. Congress pulled the trigger on a contempt action but the executive branch returned fire. The House issued a subpoena to Harriet Miers, by then the former White House counsel, and the White House asserted executive privilege.
The district court held for Congress, but the appeal was still pending when the 110th Congress, the legal entity bringing suit, expired in January 2009. The parties reached a settlement under which Congress got some of the documents it was seeking. But it took two years — longer than the life of the Congress. A similar protracted and mixed verdict occurred when the House brought suit to hold Attorney General Eric Holder in contempt over his noncompliance with a subpoena in an inquiry into the Justice Department’s handling of a gun trafficking investigation.
The upshot: Enforcing congressional subpoenas means protracted civil litigation. And there’s every reason to think it will be only more contentious and prolonged with the Trump administration, given the president’s instincts to thumb his nose at legal orders.
None of this is to suggest the Democratic takeover is trivial. It means a break on the Republican stranglehold on all institutions of the federal government. This is good news.
But those nursing two years of pent-up frustrations watching the administration cross legal and ethical lines with impunity have to prepare for a long and bumpy road. The subpoenas will fly, but they will be met with staunch executive branch resistance and months — if not years — of delays, and will result in only partial success.
Harry Litman (@harrylitman) is a former United States attorney and deputy assistant attorney general.
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