Two weeks ago, House Intelligence Committee Chairman Adam B. Schiff (D-Calif.) demanded that acting director of national intelligence Joseph Maguire turn over details of what was later reported to be a conversation between Trump and Ukraine’s president, seeking dirt on former vice president and potential 2020 campaign rival Joe Biden. Schiff wrote: “You do not possess the authority to withhold from the Committee a whistleblower disclosure from within the Intelligence Community that is intended for Congress.” Maguire is set to appear before Schiff’s committee this week, but if the acting DNI isn’t forthcoming, what will Schiff do about it?
On Sunday, House Speaker Nancy Pelosi (D-Calif.) wrote to members of Congress: “If the Administration persists” in preventing Maguire from disclosing information about the call and the whistleblower complaint that prompted the congressional inquiry, “they will be entering a grave new chapter of lawlessness which will take us into a whole new stage of investigation.” Forceful words, particularly coming from a speaker who has taken an admirable slow-and-steady approach to congressional oversight of Trump’s administration.
With impeachment proceedings now appearing increasingly likely — seven Democratic House freshmen wrote an op-ed for The Washington Post on Monday headlined, “These allegations are a threat to all we have sworn to protect,” and Pelosi will reportedly support creating a select committee to consider impeachment — Congress has the larger issue of the president’s fitness for office to consider. What’s ultimately at stake in Maguire’s testimony isn’t whether he’s thwarting the statutory whistleblower process — though that’s significant — but the issue at the heart of this particular whistleblower case: Did the president withhold military aid from Ukraine to get its government to look for potentially compromising information about one of his possible presidential opponents?
Trump’s alleged conduct is why Congress continues to face the question it has considered since at least the inception of the Mueller investigation: Have high crimes and misdemeanors been committed? If so, impeachment is the appropriate constitutional remedy, and those considerations outweigh the contemptuous conduct of any given witness. But the conduct of potential witnesses isn’t hypothetical, either, and if Congress wants to protect its institutional prerogatives and authority, its members shouldn’t lose sight of the issue — as Democrats move toward impeachment, they should also revive their ability to enforce contempt.
Indeed, one of the reasons the impeachment question remains unresolved is that Congress’s efforts to conduct oversight are routinely brushed aside by members of the administration.
In July, White House adviser Kellyanne Conway ignored a subpoena from the House Oversight Committee, looking into whether she had violated the Hatch Act. In April, Commerce Secretary Wilbur Ross declined to testify about the proposed addition of a citizenship question on the 2020 Census. Treasury Secretary Steven Mnuchin has refused a written demand, made pursuant to statute, from House Ways and Means Committee Chairman Richard E. Neal (D-Mass.) to turn over Trump’s tax returns.
In several instances, House Democrats have gone to court to try to enforce their oversight authority, but in the short term, by not aggressively penalizing contempt for their subpoenas, they’ve inadvertently sapped their own power to deal with recalcitrant members of the executive branch. In the long term, it undermines Congress’s status as a co-equal branch of the federal government.
To be clear, as former White House counsel, I certainly recognize that there are instances where the executive might contest congressional subpoenas based on executive privilege — including in cases where a potential witness isn’t a part of the executive branch. For instance, if a president consulted a former government employee, a think tank CEO, an academic or anyone else, that conversation should tentatively qualify for executive privilege protection, assuming it was, as claimed, for proper governmental purposes and not, by contrast, as part of a coverup or conspiracy.
But at the same time, Congress has broad inherent powers to investigate, including the executive. In Lewandowski’s view, being compelled to testify was about “Trump haters” going down “rabbit holes,” suggesting that he was justified in his selective answers to questions from members of Congress. But that’s not his call to make.
Like anyone else, he can be summoned to provide evidence in any well-lodged congressional investigation, reasonably related to the powers of the Congress defined in Article I of the Constitution. Lewandowski was plainly contemptuous of the Judiciary Committee when he refused to fully to cooperate with an investigation wholly within its power.
On that basis, he deserved to be held in contempt, and the failure of the committee to act immediately to levy meaningful consequences against him drove a nail in the coffin of contempt as a tool the legislative branch can use to maintain its place as an equal branch of the federal government.
The power to investigate necessarily requires the means to compel witnesses to testify. And the power to compel implies the power to hold witnesses in contempt with tangible penalties for contemptuous conduct. When criminal or civil court judges hold someone in contempt, they can fine or jail the party, witness or attorney whose noncompliance is found contemptuous.
In the past, Congress has done this, too. In 1821, the Supreme Court held that, if the House of Representatives was to avoid the “total annihilation” of its power and hoped to avoid being “exposed to every indignity and interruption that rudeness, caprice, or even conspiracy” it was faced with (an apt description of Lewandowski’s performance in open hearing), there was little alternative but to confirm that Congress must have the inherent power to fine and imprison those who behaved contemptuously toward it. Inherent because, according to the Congressional Research Service, the criminal contempt of Congress statute “provides that any person who ‘willfully’ fails to comply with a properly issued committee subpoena … is guilty of a misdemeanor punishable by a substantial fine and imprisonment for up to one year.” CRS adds:
“Historically, the House and Senate relied on their own institutional power to not only enforce congressional subpoenas, but also to respond to other actions that either house viewed as obstruction their legislative processes or prerogatives.”
In 1927, in a case involving the Teapot Dome scandal, the high court upheld the Senate’s power to arrest and jail a witness, the brother of then-Attorney General Harry Daugherty, for refusing to appear. Recalling Watergate, Jonathan C. Rose, a former aide to President Richard M. Nixon, argued Monday that “to command the attention of the Trump White House, the actual arrest of an appropriate witness or two might well be required.”
If that seems drastic — and I concede it would be appropriate only in rare situations — Congress can and should at least impose stiff financial penalties on misbehaving witnesses.
There are logistical impediments, certainly, to the House directing its sergeant at arms to go out and arrest members of the executive branch, and if they tried, it could set up a new constitutional crisis within an existing one.
As Lawfare’s Benjamin Wittes notes, asserting inherent contempt power in this way “hasn’t been deployed in a long time, and it’s not 100 percent clear that courts would tolerate it.” But there’s a risk that runs in the other direction: If the stonewalling of the current administration, and Congress’s acquiescence so far, wind up demonstrating that there’s nothing the legislative branch can do to enforce its power, then it’s difficult to say that we have an effective system of checks and balances — one of the ideas that animates our system of government.
Executive privilege disagreements are fought out in this area of delicate constitutional balance. As White House counsel during the days when then-Speaker Newt Gingrich (R-Ga.) tortured the Clinton administration with specious investigations, I personally engaged in a number of those battles: The House Oversight and Reform Committee once voted to hold me in criminal contempt when we were simply unable to compromise on a committee request for documents. The issue was eventually resolved, in part with the help of a GOP congressman also named Jack Quinn. He would joke that his constituents were outraged that their representative went to work for President Bill Clinton.
After that contempt vote, I called him up and said, “Jack, we have a problem.” He responded, “Yes, we do, and I better help you out of this mess.” It’s hard to imagine that kind of good-humored cross-party cooperation taking place now.
These battles have historically burst into the open only infrequently, simply because officials in the affected branches have typically found ways to accommodate each other’s legitimate government interests. When, for example, I had to navigate situations in which the public disclosure of information from the executive might harm the national interest, we almost always found a way to “read in” a small bipartisan group of legislators without exposing the information too broadly.
The incentive to compromise goes away, though, if officials, or other witnesses, know that a contempt of Congress citation isn’t worth the paper that it’s printed on.