Administration officials could face fines or jail time for ignoring congressional subpoenas, as House Democrats say they’re seriously considering reviving a congressional power that has not been used since the 1930s.
President Donald Trump has publicly urged administration officials not to comply with congressional subpoenas, and some have started heeding the advice. House Democrats have made no formal decisions about how to respond to the Trump administration’s stonewalling of their oversight investigations, but one option on the table is the historical process of “inherent contempt.”
“There is no tool in our toolbox that we should not explore,” Oversight and Reform Chairman Elijah E. Cummings said Tuesday.
That includes using Congress’ inherent contempt power to impose fines or jail time for administration officials who refuse to comply with congressional oversight requests, the Maryland Democrat said.
The possibilities are becoming less abstract. Attorney General William Barr has sparred with the House Judiciary Committee about the parameters of testifying this week on the report by special counsel Robert S. Mueller III on Russian interference in the 2016 election. And there are several other instances of the administration and Congress clashing over the legislative branch’s oversight protocols.
Also watch: ‘We’re fighting all the subpoenas,’ Trump says
Judiciary Chairman Jerrold Nadler and Intelligence Chairman Adam B. Schiff said during a meeting with the New Democrat Coalition on Tuesday that they would consider using inherent contempt if the administration doesn’t comply with their requests for testimony and documents, according to a source in the meeting.
Inherent contempt is Congress’ power — as implied but not directly stated in the Constitution — to enforce congressional subpoenas or respond to actions seen as obstructing their oversight and legislative processes.
Each chamber has the authority to unilaterally exercise that power by adopting a resolution authorizing its sergeant-at-arms to execute an arrest warrant against an official who refuses to comply with Congress.
Once in sergeant-at-arms custody, the official would be brought before the chamber for a hearing or trial. If the body finds them guilty of contempt of Congress, it can direct them to be detained or imprisoned until they comply.
“It does not appear that either house has exercised its inherent contempt power to enforce subpoenas or to remove any other obstruction to the exercise of the legislative power since the 1930s,” the Congressional Research Service found in a report last month. “Even so, the mere threat of arrest and detention by the sergeant-at-arms can be used to encourage compliance with congressional demands.”
Democrats believe they can also use their inherent contempt power to impose a fine rather than pursue jail time, though they were careful to leave both options on the table.
Neither chamber has ever imposed a monetary penalty through inherent contempt, CRS said, while citing court decisions that would support the use of such action.
In modern times, Congress has moved away from inherent contempt and used other mechanisms to try to enforce subpoenas.
One option is civil enforcement. Either chamber of Congress can file suit in federal district court seeking an order to enforce compliance with the subpoena. But Democrats are wary of pursuing legal action, knowing that it could take months or years to reach a resolution.
“If you’re worried about timeline and they’re running a clock, you’ve got to short-circuit the process. And waiting two or three years for a court to rule in your favor is not going to cut it,” said Rep. Gerald E. Connolly, who chairs the Oversight and Reform Government Operations Subcommittee.
The Virginia Democrat said inherent contempt is an option that would get around that obstacle and he thinks the House should seriously consider using it.
“Congress clearly has the right to enforce its subpoenas and to hold people in contempt and, if necessary, to incarcerate and hold people in custody until they comply. Without that, we don’t really have a meaningful way to compel the introduction of witnesses and testimony,” said Rep. David Cicilline, a member of leadership who sits on the Judiciary Committee.
“And, you know, we recognize the president’s strategy is to just try to drag this out in litigation, which I think makes that [contempt] process maybe the one that Congress will be required to do,” the Rhode Island Democrat added.
The other option used in modern times is an 1857 criminal contempt statute that makes failure to comply with a congressional subpoena for testimony or documents a misdemeanor punishable by a substantial fine or up to a year in prison. But if Congress pursues criminal contempt via a vote of the House, the result is only a referral to the Department of Justice, which would have the final say on whether to prosecute.
Since Barr is one of the administration officials House Democrats say is party to the stonewalling, they certainly don’t want to leave the decision up to him.
“You can’t come to Congress, obstruct our proceedings and then we have to rely on you to uphold our ability to hold someone in contempt,” Judiciary Committee member Hank Johnson said.
The Georgia Democrat offered another remedy if Trump and his administration continue to stand in the way of Democrats’ investigations — impeachment.
“It really becomes a matter that could become the focus of an article of impeachment, him impeding the operations of the legislative branch and trying to thwart our ability to investigate his administration,” Johnson said.
While most Democrats who are publicly talking about impeachment are referring to action against Trump, there’s also the possibility that Democrats could pursue articles of impeachment against administration officials like Barr.
“Yes,” Johnson said when asked if there might be a case to impeach Barr too. “He’s making that case as we move forward. He has knowingly and willfully misled [and] attempted to mislead the American people in the context of the Mueller investigative report.”
Judiciary member Val B. Demings, who has said she believes the Mueller report provided enough evidence for the House to begin impeachment proceedings against Trump, also wouldn’t rule out the idea.
“I think the attorney general no longer serves any use,” the Florida Democrat said when asked about the possibility of impeaching Barr.
During a House Democratic Caucus conference call last week, California Rep. Jared Huffman floated the idea of removing IRS Commissioner Charles P. Rettig if he doesn’t comply with the Ways and Means Committee’s request for Trump’s tax returns.
“I wouldn’t take that off the table,” senior Ways and Means member Bill Pascrell Jr. said Tuesday when asked if Democrats would consider impeaching Rettig.
However, Pascrell said he sees contempt as the more immediate recourse Congress would be likely to take. The New Jersey Democrat also deflected some blame on administration officials defying Congress’ oversight requests by saying they are acting on behalf of Trump.
“There is no doubt in my mind that everything that’s demeaning to the Article I branch of government comes from the president himself. I don’t think these guys are acting in a vacuum,” Pascrell said.
Todd Ruger contributed to this report.