After initially threatening to hold Atty. Gen. William Barr and former White House counsel Don McGahn in contempt of Congress for failing to comply with House subpoenas, Democrats shifted tactics Thursday and instead authorized committee chairs to go to court to seek help enforcing their demands for documents and testimony related to the Mueller report.
Here’s a look at the obstacles and risks with that legal strategy.
Why not just vote to hold them in criminal contempt of Congress?
It initially looked as if that’s what the House would do. The resolution that the Judiciary Committee passed in May contained citations for criminal contempt. But, according to Stanford law professor Michael McConnell, “the criminal contempt route is basically closed.”
That’s because after a criminal contempt citation, the matter would be referred to the Justice Department, whose lawyers would then decide whether to prosecute Barr and McGahn under an 1857 statute that makes refusal to obey a subpoena from the Senate or House a misdemeanor punishable by a fine or up to a year of jail time.
But prosecutors tend to be reluctant to bring charges against the administration that appointed them. That would essentially mean prosecuting their bosses. That’s especially true in this case, since one of the witnesses is the attorney general, who oversees the Justice Department.
Could the House hold Barr and McGahn in inherent contempt?
Technically, yes, but that’s not very realistic. Under the concept of inherent contempt, Congress could send its own security officers — its sergeants-at-arms, for example — to enforce its subpoenas. It’s the only congressional contempt process that can proceed without the help of an outside authority, such as a court or government prosecutor.
But inherent contempt hasn’t been used since 1935, and legal analysts say it’s probably not on the table. The prospect of the House sergeant-at-arms arresting the nation’s top law enforcement officer and holding him in confinement until congressional leaders agreed to release him is hard to imagine today. On the other hand, Congress could opt for a less dramatic approach, such as imposing fines as punishment.
So bringing a civil court case is Democrats’ only option?
Pretty much, especially since the targets of Congress’ subpoenas are administration officials.
Is that called civil contempt?
That’s what House Democrats have been calling it, but the label is a little premature. Lawmakers would go to court to ask a federal judge to validate and enforce their subpoenas. At some point during that legal battle, they could ask a judge to find Trump officials in contempt of court, rather than contempt of Congress. But we are getting ahead of ourselves. There are a lot of hurdles that have to be overcome before even reaching that point.
First, a judge would decide whether the court had jurisdiction. Though judges are often asked to settle disputes between the executive and legislative branches, they really don’t like to get involved in what are chiefly political squabbles. The Justice Department would probably try to convince the court to stay out of the matter. And the judge would almost certainly encourage settlement talks.
What if talks failed and the judge agreed to hear the case?
Then he or she would review the facts and decide the matter on its merits. Understandably, this could take a while.
If House attorneys convinced the judge their subpoenas were proper, they would probably ask the court to declare them valid. If the Trump officials still refused to comply, the House could ask the court to order them to do so. And if they still refused, then the House might finally ask the judge to hold them in contempt of court for failing to comply with the court’s order.
But there is no guarantee how the process might go or what a judge would do. In the legal fight between House Republicans and former Atty. General Eric H. Holder Jr. over the Fast and Furious gun-tracking operation, the judge agreed to hear the matter and ordered Holder to turn over some documents. But when Republicans asked her to hold Holder in contempt of court, the judge said such a step was “entirely unnecessary.”
Are there risks to the legal approach?
Definitely. By fighting in court, both Congress and the White House could end up with a ruling that hurts them or limits their power in the future. A judge, for example, might rule that Congress overstepped its oversight authority or that the president’s claim of executive privilege was inappropriate.
The district court ruling in the Holder case didn’t leave either side happy. In fact, as part of a settlement agreement, the two sides asked the judge to vacate some of her rulings. She refused.
While that ruling isn’t binding legal precedent — district court decisions aren’t — experts say it points to some of the mixed results that this kind of case can have.
This sounds as if it takes a long time
It does. The Holder case started in 2012 and was settled last month.
“It’s basically up to the courts, and it’s hard to see why a court would look at this as an emergency that needed to be expedited,” said Georgetown law professor Paul Butler.