The House Ways and Means Committee has subpoenaed Treasury Secretary Steven Mnuchin to surrender President Trump’s tax returns to the committee by Friday. The odds are that Mnuchin will reject the demand, although the law is clear that he must comply. What then?
Most of the proposed remedies contemplate appealing to courts. But that process will move too slowly to resolve the crisis.
Imagine instead that the House draws inspiration from a parallel clash in the 1920s, during the scandal-ridden administration of Warren G. Harding. As the Teapot Dome affair unfolded, members of Congress suspected that Attorney General Harry Daugherty was personally corrupt and was shielding other members of the administration from justice.
A Senate committee subpoenaed the attorney general’s brother, Mally Daugherty, to testify and to surrender documents from an Ohio bank that he controlled — but he refused. At that point, the Senate dispatched the sergeant at arms of the Senate to Cincinnati, where he placed Mally Daugherty under arrest and held him in custody.
A federal district court freed him on a writ of habeas corpus. But in the 1927 case McGrain v. Daugherty, the Supreme Court reversed that decision and confirmed the power of the Senate to directly arrest Daugherty and bring him against his will to Washington to testify. (He never did so, because by the time the case was decided, three years after it was argued, the Senate had moved on.)
McGrain v. Daugherty made clear that the Constitution grants each chamber of Congress inherent power to hold hearings and to launch investigations as it conducts its legislative and oversight business — and also that Congress can compel compliance with its subpoenas through direct arrest and detention. The court wrote: “Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain that which is needed.” This power comes on top of any recourse that Congress might have to pursue contempt charges in court.
This wasn’t the only time during that era that the Senate played this brand of hardball. In February 1928, when Robert Stewart, chairman of the board of Standard Oil Co. of Indiana, refused to answer questions at a hearing, the Senate issued a warrant for his detention until he agreed to testify. The deputy sergeant at arms executed the warrant that same night, holding Stewart overnight in custody in a room in the Willard Hotel.
What’s changed since 1927? Not the law — no subsequent case has limited Congress’s authority. What’s changed is Congress’s standing in the public eye, and among the three branches of government.
Admittedly, the two chambers of Congress have rarely made use of their power to directly arrest and detain contumacious witnesses. (The official record of the House parliamentarian records the last such case as occurring in 1935. We have found one instance where the Senate detained several gamblers in 1951, to compel them to testify.) This does not necessarily mean that the inherent power of each chamber has withered from disuse; rather, in the past Congress was sufficiently feared (whether because of its direct powers or because it could make criminal referrals) that individuals simply didn’t think ignoring a committee’s request was permissible.
During the Watergate hearings, Sam Ervin, chairman of the Senate Watergate Committee, threatened to lock up members of the Nixon administration who defied congressional subpoenas. On CBS’s “Face the Nation,” he declared: “I’d recommend to the Senate they send the sergeant at arms of the Senate to arrest a White House aide or any other witness who refuses to appear.” (While it didn’t involve direct detention, Richard Kleindienst, the former attorney general, pleaded guilty to one count of refusing to testify before Congress, and a House committee petitioned the D.C. District Court to compel Gordon Liddy to testify.)
But in the last quarter-century, Congress has systematically undercut its own relevance. As Congress decided to shirk its most important responsibilities, ranging from war powers to passing timely budgets, Congress gradually lost the respect of the executive branch.
It’s not merely a Democratic revenge fantasy to think that the House of Representatives might direct its sergeant at arms to arrest and detain Mnuchin or Attorney General William P. Barr, who has refused to provide the full Mueller report. In each case, as was true of Mally Daugherty, the individuals have spurned lawful demands directly relevant to the business of Congress. The House can arrest and detain them until they agree to comply. (We appreciate that there might be tension between either man’s Secret Service detail and the sergeant at arms, but we would hope that neither would compound his troubles by provoking a scuffle.)
It’s fun to imagine the House jail as a converted broom closet in the bottom of the Rayburn House Office Building, but it’s probably more feasible to hold an uncooperative member of the administration under guard in a hotel room near the Capitol. As when someone is jailed for refusing to comply with a court order, the prisoner holds the keys to the jailhouse door in his own pocket: Comply with the valid subpoena, and the detention ends.
If all this seems laughably far-fetched, that just shows how significantly the powers of Congress, and our respect for that institution, have eroded in the last few decades.
Our proposal puts the legal burdens back where they belong. To expect Congress humbly to ask a court to enforce congressional subpoenas only perpetuates Congress’s cession of its power. If Trump administration officials choose to thumb their noses at Congress, they should begin the legal process from inside a jail cell.
And their constitutional rights remain secure. They can, for example, petition for a writ of habeas corpus (which is just what the attorney general’s brother did in the 1927 case). The procedures are not the difficulty here — it’s the lack of congressional will.
Correction: This article originally referred to a 1928 detention by Congress as having occurred during President Harding’s administration. Calvin Coolidge was president at the time.