A primer on Contempt of Congress enforcement

[StarfishSaver]

Last edited Tue May 21, 2019, 05:53 PM - Edit history (1)

I wrote this in response to someone's question about the process, but thought it would be helpful to post it as an OP for anyone wanting a quick guide on the process Congress has available to it for enforcing a subpoena. https://www.democraticunderground.com/?com=view_post&forum=1002&pid=12115764

There are three methods Congress can use to enforce a Contempt of Congress citation in response to a witness' refusal to respond to a subpoena. All of them share specific requirements to get the ball rolling and then branch out into three different processes.

First, once the subpoena is issued, the witness or holder of documents has to definitively refuse to comply. That means more than just saying they won't, but to take some affirmative step to defy the subpoena, such as fail to appear or produce the documents by the deadline.

In McGahn's case, although he signaled yesterday he wouldn't show up, he didn't trigger anything until he actually didn't show up at the appointed time today. He has now defied the subpoena.

The Judiciary Committee now must make some effort to get him to comply. It might be by letter (the much-derided "strongly worded" letter is mocked around here, but it performs a legal necessity), conversations with him or his attorneys to try to negotiate compliance, or some other method. This is necessary because, down the road, before upholding a contempt citation, a court will require a showing that Congress made a good faith effort to secure compliance prior to issuing the citation.

If those efforts fail, the House Judiciary would hold an executive meeting - aka "markup" - to vote on a contempt recommendation. Markups usually require several days notice and usually, the minority can request a one-week extension.

At the markup, the Judiciary Committee members will discuss the measure and then vote. If a majority of Members agree, the contempt recommendation will be referred to the floor to be voted on by the full House.

When that happens, the measure will likely be referred to the Rules Committee which will set out the parameters for debate (how long each side has, etc.) and the vote. That usually doesn't take long and there may be ways to avoid having to do a rule on a contempt vote ( I haven't looked into that). The debate and vote are scheduled and then the full House votes. Simple majority carries.

If the measure passes, the Congress has now officially cited the witness for contempt. At that point, there are three different avenues that can be taken for enforcement. The first is already a nonstarter, so there's no point in even trying, unless they just want to make a point. That would be to refer the citation to the US Attorney for DC and ask them to enforce the citation with an arrest or prosecution. Since the US Attorney reports to the Attorney General, that ain't gonna happen. So let's move on.

The next possibility is for Congress to exercise its "inherent contempt" power, a rare tactic, which Congress hasn't done in nearly a century, but is being seriously considered. That could mean imposing a fine or instructing the Sergeant-at-Arms to arrest the subject and bring them before the body to answer the contempt charge. If they still don't comply, they would be held in custody until they do or until a judge orders them released. While it's possible to do this, it would be very difficult to pull this off logistically in many instances. It might be easier for a McGahn, who is a private citizen. But it's not clear how the Sergeant-at-Arms would go about arresting the Attorney General or other federal official under 24-7 protection of federal agents and whose homes and workplace are virtual fortresses. It will be interesting to see what happens if they go that route.

The third possibility is to go to court and ask it to enforce the citation. If the court rules that the subject must comply, failure to comply would result in a contempt of court citation, in addition to the contempt of Congress. In such cases, the court could enforce by, among other things ordering the US Marshals to arrest a subject.

The bottom line is that contempt of Congress citations aren't simple things and Nadler can't just snap his fingers and throw someone in jail because they didn't show up this morning..

I hope this is helpful. You can read more about the enforcement of Contempt of Congress citations here: https://fas.org/sgp/crs/misc/R45653.pdf and here: https://www.reuters.com/article/us-usa-trump-congress-subpoena-explainer/explainer-how-hard-hitting-are-u-s-congress-subpoenas-contempt-citations-idUSKCN1SC1YE

[Atticus]

1. Thank you. nt

[FrankBooth]

2. Thanks

Reality is a great foundation to build expectations upon.

[FreepFryer]

3. THX!!! A q: What if McGahn were to express he has fear of Trump retaliation for his testimony? (n/t)

[cojoel]

4. I wonder if disbarment is a possible outcome

Obviously, it wouldn't be a matter to non-attorneys who defy a subpoena. But for attorneys like McGahn and Barr I don't see why a complaint should not be filed to at least the Federal Court for willful disobedience or violation of the house subpoena.

[Locutusofborg]

5. Really good point

I wholeheartedly agree.
I also favor civil contempt: fine them $10,000 a day until they comply.

[StarfishSaver]

9. Yes

But although that would be based on the contempt citation, it would not be within Congress' enforcement authority. That would be up to the state and Federal bars he's admitted to practice before determine.

[mcar]

6. K&R

[Nasruddin]

7. Senate?

If the Senate is involved at any point in the process, it's already a dead issue.

[StarfishSaver]

10. No. The Senate has nothing to do with this

House handles its own subpoenas and contempt matters.

[spooky3]

16. Yes, but you referred to "Senators" in one paragraph. You

may have intended “Representatives.”

Thanks to you and EffieBlack and other DU attorneys for your very informative posts.

[StarfishSaver]

21. Yes - that was a typo. I've since corrected it

[denbot]

11. +1

[onenote]

8. Thanks. One additional point about inherent contempt

While inherent contempt has some folks excited, there is virtually no chance it will be invoked. The vote in the House to invoke inherent contempt probably would pass (it wouldn't be attempted if the votes weren't there) but I guarantee that no Republicans will vote for it and that a few Democrats would probably vote against it. In any event, as soon as it is passed, the target's attorney will be ready to go to court with a habeas corpus petition which will shift matters to the courts. I would fully expect the court to order the target released on his/her own recognizance (not a flight risk) while the court considers whether the subpoena that gave rise to the contempt citation was a valid subpoena. I suspect the court will find that it was, at which point there will be an appeal to the appellate court and then to the Supreme Court. All the while, the target will be free from incarceration. Finally, if the SCOTUS upholds the subpoena, the target will either give up and comply, mooting the contempt proceeding or will defy the courts, giving rise to a contempt of court proceeding. In short, inherent contempt and option 3 end up doing the same thing.

[StarfishSaver]

12. Excellent point!

Thanks!

[Baltimike]

13. knr

[Duppers]

14. K & R

Thank you for posting this, SFS. It's answered many questions I've had.

[pnwmom]

15. Thank you, StarfishSaver! n/t

[pnwmom]

17. Was this part a typo? (I hope.)

At the markup, the Judiciary Committee members will discuss the measure and then vote. If a majority of Senators agree, the contempt recommendation will be referred to the floor to be voted on by the full House.

Did you mean to say majority of Representatives on the Judiciary Committee?

[StarfishSaver]

18. Yes. That was a typo

I'll edit. Thanks for catching it!

[pnwmom]

19. Phew! Glad to hear it.

[bubbazero]

20. inherent contempt enforcement thru congressional arrest

first--here are several who have insinuated or suggested this type of path be followed--(or at least explored) 1. RICHARD PAINTER-chief WHITE HOUSE ethics lawyer during the George W Bush administration--reference to tweet

Link to tweet

2. ROBERT REICH-Secretary of Labor under Bill Clinton--opinion in Newsweek https://www.newsweek.com/robert-reich-arrest-william-barr-attorney-general-supboena-congress-1408786 3. The thought of a separate law enforcement agency arresting an Attorney General of the United States should not provoke concern for the actual mechanics. First, as Robert Reich points out this would force the administration into court to try and get an injunction and then the matter would likely be expedited to the SCOTUS. This would be a much, much faster process than civil court for grievance redress. 4. Should it somehow ever come to that----the SCOTUS has ruled that the congressional subpoena, failure to comply, reasonable attempts have been made by CONGRESS, still no compliance, therefore the arrest order is valid,-----any attempt by ANY member of the DOJ to interfere with this lawful arrest would be inherently illegal. Charges could range from interference in official acts all the way to OBSTRUCTION DOJ official or security likely wont risk a felony charge by going against SCOTUS

[pdsimdars]

22. THIS.

[SallyHemmings]

23. Thank you!

The thought of sending the Sargent of Arms brings me joy. I know it won’t happen..but a woman can dream.