Angry that the Justice Department won’t comply with a congressional subpoena for an unredacted version of special counsel Robert S. Mueller III’s report, and frustrated by Atty. Gen. William Barr’s decision to skip a hearing where he was to testify Thursday, the Democratic-controlled House is threatening to hold Barr in contempt.
It sets up a showdown over constitutional powers between the executive and legislative branches that President Trump and the House have built toward for months. Trump told reporters last week that he’ll fight every subpoena.
Here are some things you should know about what could happen next.
What is contempt of Congress?
A contempt finding is how Congress may respond when someone refuses to testify or provide information as part of a House or Senate investigation. The Supreme Court has repeatedly upheld that Congress has a right to compel people to comply with its oversight efforts.
Such demands are more complicated when they involve other branches of the government. Presidents always have information they don’t want to give Congress. In the past, the mere threat of being held in contempt — not to mention Congress’ power over funding the government — was usually enough to convince an administration to comply with a request, or at least negotiate a compromise.
Unlike impeachment proceedings, either chamber of Congress — the House or the Senate — can pursue contempt charges without needing the participation or approval of the other chamber.
How common is contempt of Congress?
Not that common. Congress has found someone in contempt fewer than 30 times since 1980, according to the Congressional Research Service.
What happens after Congress holds someone in contempt?
Congress has a few options. The most common is that it can send a criminal contempt referral to a U.S. attorney. If prosecuted and convicted, the punishment is up to a $10,000 fine and a year in jail.
But will the Justice Department enforce a contempt of Congress finding against a member of the executive branch?
Good point. Probably not. Federal prosecutors have broad discretion over whether to bring charges or not, and it’s unlikely they’ll do so against an executive branch official, especially if the person being held in contempt is the attorney general, the nation’s top law enforcement official.
Also, the president has called subpoenas the “weapon of choice” for Democrats’ “all-out political war” and vowed to fight them all, especially those related to his family’s finances or business dealings.
Have we been in this situation before?
Yes, and there is precedent. Most recently, U.S. attorneys cited their prosecutorial discretion to justify decisions not to pursue contempt charges against former White House Counsel Harriet Miers and then-White House Chief of Staff Joshua Bolten in 2008, and Atty. Gen. Eric H. Holder Jr. in 2012. Then, like now, the executive branch was under one party while the House was controlled by the other.
Is there anything else Congress can do?
Yes, it can go to federal court. That’s the next option, but it’s a time-consuming one. Either the House or Senate can file a lawsuit in federal district court seeking a declaration that the person is legally obligated to comply with the congressional subpoena.
But Trump would likely try to delay turning over any information to the House until after the 2020 election. It took four years after Holder was held in contempt for the courts to rule that the Obama administration had to hand over documents Republicans had requested about detailing the botched Fast and Furious gun sales operation.
If the court rules in Congress’ favor, the person can be held in contempt of court and jailed.
Any other options?
Yes, but it’s rare these days and controversial, relying on a congressional authority known as “inherent contempt.” That method hasn’t been used since 1935.
Inherent contempt was once a fairly common tactic used by Congress to ensure compliance. This route involves a person being arrested by the sergeant at arms of the House or Senate, and brought before the full House or Senate for a trial. In this case, it would effectively involve the House ordering the arrest of the nation’s attorney general. That’s no small step.
The person is then tried by the chamber that brought the contempt charge. If convicted, the person is imprisoned — possibly on the Capitol grounds — until they agree to comply. They would be released when Congress decides or when the two-year congressional session ends.
What about impeachment?
That’s another possibility. Democrats so far have been reluctant to impeach Trump, but they might be less hesitant to impeach an unelected official such as Barr.
The problem is that even if the House votes to impeach, that is only the first part of the proceeding. Because impeachment involves both chambers, it is the Senate, now under Republican control, that would have the power to convict — which requires a two-thirds vote — and remove a person from office. That was the situation when the House voted to impeach President Clinton and the Senate refused to convict him.
Impeachment is the biggest weapon in Democrats’ arsenal, but it is extreme and could backfire if voters perceive it to be politically motivated.