Fans of political melodrama, at risk of overdose in recent years, have fixated upon a fascinating possibility as House Democrats seek to pry information from President Trump and the White House: What if Congress just arrested administration officials until they testified?
In the abstract, this sounds bizarre to the point of illegality. If you want information from your neighbor, you’re not allowed to simply lock him in your basement until he tells you what you want to know. You can do it, sure, but you’re probably going to go to prison for kidnapping. Why should Congress be different?
The answer is that, unlike you, Congress is allowed to do this.
As we reported in January of last year, the Senate actually detained a former member of the administration of President Herbert Hoover in 1934. Senate investigators were looking for information about certain government contracts, and William MacCracken, who had been assistant secretary of commerce for aeronautics, declined to provide information that had been requested. He was detained first at the home of then-Senate Sergeant-at-Arms Chesley Jurney and, for a second night, at the Willard Hotel in Washington.
Unsurprisingly, MacCracken contested the detention in court. The resulting case, Jurney v. MacCracken, landed at the Supreme Court. The justices determined that the Senate did, in fact, have the power to do precisely what it had done.
“The inherent contempt power is a constitutionally based authority given to each house to unilaterally arrest and detain an individual found to be ‘obstruct[ing] the performance of the duties of the legislature,’ " the Congressional Research Service wrote in a report issued this year, quoting from the court’s decision in Jurney.
“The Supreme Court has repeatedly held that although the contempt power is not specifically granted by the Constitution, it is still ‘an essential and appropriate auxiliary to the legislative function,’ and thus implied from the general vesting of legislative powers in Congress,” the report continues. “The Court has viewed the power as one rooted in self-preservation, concluding that the ‘power to legislate’ includes an ‘implied right of Congress to preserve itself’ by dealing ‘with direct obstructions to its legislative duties’ through contempt.”
Put more simply, the Supreme Court says Congress can, after a brief process, detain people who refuse to provide requested information.
From a legal standpoint, it’s doable. From a political standpoint? Probably not.
The ramifications of the House applying a power that hasn’t been used in more than 80 years to detain, say, Attorney General William P. Barr probably make the tool relatively useless. Imagine House Speaker Nancy Pelosi (D-Calif.) appearing on television to explain that the House was fully within its rights as video of a Capitol Hill staff member scuffling with Barr’s security team is shown next to her. It’s a difficult political proposition.
On Friday, Rep. Adam B. Schiff (D-Calif.) suggested an alternative. Perhaps the House could use the inherent contempt power to levy fines against those who weren’t complying with subpoenas.
“You could fine someone $25,000 a day until they comply,” Schiff told Axios in an interview. “You can do that. We’re looking through the history and studying the law to make sure we’re on solid ground.”
Let’s take a step back and remember why this is necessary. As we reported last month, Congress’ ability to enforce its subpoenas is severely limited. Setting aside this question of Congress’ inherent contempt powers, it can find people or organizations in contempt and then either ask the Justice Department to prosecute or ask the courts to impose a fine. In the first case, the prosecution is dependent on Trump’s Justice Department to take the necessary action, which seems unlikely. In the second, any fine would be imposed only after a lengthy court fight, and then presumably would only last as long as the subpoena was active and left unanswered.
But those subpoenas and contempt citations have a built-in expiration date: The end of the Congress — meaning, at this point, early 2021. The next Congress could renew them but, if they expire, so does the punishment.
Does Schiff’s plan then have merit? Can Congress get around its relative impotence by simply levying its own punishments?
The reason for detaining individuals through the inherent contempt power is to force action, explained Randall Eliason, former assistant U.S. attorney for the District and an adjunct professor at George Washington University Law School.
“The biggest benefit to the inherent contempt power is it’s more like the court’s inherent contempt power in that you’re able to coerce behavior that you’re looking for immediately and get the information,” he said. “Rather than a criminal punishment, it’s a coercion to force compliance and get the information that you’re looking for.” Lock someone up until they talk. No one wants to be detained for very long, even if it’s at the Willard.
But, as Duke University law professor Lisa Kern Griffin explained when we spoke, Schiff’s proposal doesn’t really do that.
“It’s all very well and good to declare that you are fining someone a significant amount of money,” Griffin said, “but it doesn’t seem very likely that any administration official or other witness is going to pay that fine unless and until it’s enforced by some court and there’s an actual judgment.”
“It’s an additional form of leverage that Congress can use and it is as valid as the subpoenas themselves arguably,” she said. “They have the power to issue a subpoena. No one is complying with their subpoena but now they are asserting an inherent power to enforce those subpoenas via fines. The problem for Congress remains the same, which is the same actors who are declining to testify or provide documents to comply with subpoenas are likely going to say, ‘send me a bill’ and ignore the fine to the same extent.”
In essence, then, there’s not much difference between Congress trying to enforce a subpoena by pushing a contempt citation to the courts and Congress applying a fine through its inherent contempt power. Congress can determine the size of the fine, sure, but the same limitations might apply.
“If it’s inherent contempt, it’s a meaningless power if it can’t be enforced with some rapidity,” Eliason said. “To effectuate it, it’s critical that the court expedite any proceedings that take place.”
He did think that a fine levied through inherent contempt might also yield a faster judicial response.
“I think you’d have a fairly convincing argument if you’re the Congress to go to court and say, the only way this power is effective is if we can get really meaningfully quick judicial action here,” he said. “I think that would be pretty persuasive. So there’s always going to be a court remedy, but I think Congress would have a strong argument that it needs to be expedited pretty quickly.”
That doesn’t mean Congress would win.
“I think that courts are going, as this gets litigated, to say that the subpoenas are valid,” Griffin said. “How the court will respond to exercising of inherent powers is much less predictable because inherent powers are hard to define and don’t have a lengthy track record.”
Given the alternatives, however, it’s easy to see why House Democrats might want to give it a shot.