If a president refuses to cooperate with congressional oversight in just about every conceivable way — and if that president has the near-total backing of a party that controls one chamber of Congress — any such scrutiny can basically be ground to a halt, with no repercussions.
But a group of House Democrats is now calling on its chamber to get a lot tougher in this regard.
This group of Democrats — which is led by Rep. Ted Lieu of California and includes other high-profile lawmakers on the Judiciary Committee — is introducing a resolution Monday that, if successful, would dramatically increase the House’s ability to compel compliance with oversight.
This resolution would create a new, modernized mechanism by which the House could seek to levy stiff fines on officials who defy subpoenas for testimony or documents. It would in effect bring into the 21st century a power that Congress has used only rarely in the past — the power to enforce its own subpoenas.
“The administration can simply choose not to have witnesses appear and not produce documents, and there’s nothing we can do about it,” Lieu told me, noting that “we’ve seen the Trump administration getting worse, not better, in terms of both obstruction and engaging in reckless conduct.”
The scandals are mounting
The latest scandals help focus the mind on the severity of the problem here. We just learned that U.S. intelligence has indicated that Russia may have offered bounties to militias linked to the Taliban for attacking coalition forces in Afghanistan — and that this may have resulted in the deaths of U.S. troops.
Trump claims intelligence services informed him this information is not credible and that they actually never briefed him on it.
Given that intelligence sources are telling news organizations otherwise, there’s no reason to accept Trump’s claims at face value. House Speaker Nancy Pelosi has called for an accounting to Congress.
But Trump’s director of national intelligence has issued a remarkable statement supporting Trump’s claim that he wasn’t briefed without actually refuting what reports say about those intelligence findings. This suggests the DNI may be corrupting the process on Trump’s behalf.
Whatever the truth, all this raises the stakes for Congress to get the full story — even as it casts further doubt on the likelihood of the administration cooperating to make that possible.
Meanwhile, Trump’s ouster of the prosecutor in New York who was investigating his associates — and Attorney General William Barr’s shadowy role in it — is also screaming out for congressional scrutiny. So, too, are Barr’s other ongoing efforts to corrupt our democracy on Trump’s behalf.
Barr has agreed to testify at the end of July. But that’s a month away, and who knows if he’ll show up. Meanwhile, two top Trump defense officials have refused to testify to the House about the military’s response to protests. All this comes after Trump was impeached for obstructing Congress — which obviously didn’t chasten him.
Enter the new proposal.
Lieu’s resolution — which is backed by Reps. Val Demings, Jamie Raskin, Joe Neguse, David Cicilline and Madeleine Dean, all of the Judiciary Committee — would change House rules to create a stiffer mechanism of accountability for flouting oversight.
Under it, any House committee that wanted to bring proceedings against an official for defying subpoenas could refer a resolution of contempt to the full House. If approved, the House can authorize its counsel to go to court to sue and ask it to freeze the offender’s assets.
This process would give the official 20 days to comply with the subpoena, after which the House counsel would ask the court to levy a fine of up to $25,000, to be increased as high as $100,000 over time.
The process would also provide for the House to negotiate with the administration over their reasons for noncompliance (the administration can also contest the fine in court), and to reach an accommodation if possible.
In effect, this attempts to modernize Congress’s power to employ civil enforcement of subpoenas, which it does have (see this Congressional Research Service report), and tries to create a rigorous process for it.
“This is a power Congress has repeatedly used in the past, and the courts have upheld,” Lieu told me.
Right now, courts can ultimately force compliance with subpoenas, but it takes forever. Note that we’re still waiting on congressional efforts to hear from former White House counsel Don McGahn. Fines are designed to force much faster compliance.
“The administration has made defying congressional subpoenas a fixture," Raskin told me. "The constitutional order cannot sustain this kind of lawlessness.”
It’s unclear if Pelosi will go for this. But given the weight of the Judiciary Committee members on the proposal, the committee chairman, Rep. Jerrold Nadler, may feel inclined toward supporting it.
At a minimum, this could force a debate over whether it’s time for Congress to come up with newly aggressive ways to compel cooperation — and what it means that the failure to do so is rendering oversight a dead letter. Whatever you think of this proposal, the demise of oversight isn’t an acceptable outcome.
Nor is it enough to argue that we should let the election settle these matters. Trump might win reelection. And even if Trump might lose, Congress needs to reassert its authority anyway. As Raskin put it: “We don’t have to wait for an election to vindicate an essential constitutional function of Congress."