Congress

Before considering power that could jail defiant Trump officials, Dems plan to go to court

‘Inherent contempt’ remains an option, but House vote next week would seek civil enforcement first

House Majority Leader Steny Hoyer, D-Md., said Democrats will seek to enforce their subpoenas with civil court action before considering inherent contempt. (Photo By Bill Clark/CQ Roll Call file photo)

Despite some Democrats calling on the House to use its inherent contempt authority to fine or jail administration officials who defy subpoenas, Democratic leaders have opted to first fight the battles in civil court.

The House will vote next week on a resolution to authorize the Judiciary Committee to pursue civil enforcement of subpoenas it issued to Attorney General William Barr and former White House counsel Don McGahn. 

The Judiciary panel voted along party lines last month to hold Barr in contempt for ignoring its subpoena for Special Counsel Robert S. Mueller’s full, unredacted report and underlying investigatory materials. Chairman Jerrold Nadler had said the panel would also hold McGahn, a key witness in Mueller’s investigation, in contempt for ignoring a committee subpoena for documents and testimony, but the committee never voted on that. 

Instead the House resolution will provide Judiciary and all other committees who issue subpoenas in pursuit of oversight the authority to enforce their subpoenas in civil court. That means future contempt votes “may or may not be necessary,” Hoyer said. 

“Our intention is to cover the universe and address what I have referred to as one of the largest cover-ups of any administration that I can recall,” the Maryland Democrat said. 

Assistant Attorney General Stephen E. Boyd sent Nadler a letter Tuesday saying the Justice Department is prepared to resume negotiations with the Judiciary Committee over narrowing the documents requested through the subpoena if the panel nullifies its May 8 vote holding Barr in contempt and Democrats drop their plan for a floor vote.

“It would hardly make sense for the full House of Representatives to act upon the committee’s prior recommendation to hold the Attorney General in contempt for not complying with a subpoena that even the committee now appears to acknowledge was overbroad in seeking immediate disclosure of the entirety of the special counsel’s investigative files,” Boyd said. 

Democrats have offered no indication they plan to take DOJ up on that offer. In fact Nadler responded to DOJ with a letter rejecting their demand, saying, “We urge you to return to the accommodation process without conditions.”

First step

The resolution Democrats are drafting to authorize civil contempt enforcement would not preclude the House from using its inherent contempt authority in the future. Democrats, however, want to see how the civil cases play out first, Hoyer said.

“This is the first but important step,” he said. 

Nadler declined to comment when asked if Democrats would wait to see what happens in civil court before considering using inherent contempt to try to force compliance with subpoenas. 

“None of it is mutually exclusive, so we’ve not surrendered our inherent contempt powers in any way,“ Judiciary member Jamie Raskin said. 

However, the Maryland Democrat conceded that Democrats “probably” want to see whether the civil contempt is effective in forcing compliance before pursuing any inherent contempt actions like fines or imprisonment — depending how quick the civil process is.

“We want to give them the benefit of the doubt to see whether they would respond to a civil contempt citation in order,” Raskin said of current and former administration officials who’ve defied subpoenas. “And if they don’t, everything else is still on the table. I for one am a huge champion of us using our inherent powers of contempt to try to bring them to heel. They are in historic and unprecedented defiance of Congress.”

Oversight and Reform Committee member Gerry Connolly, a vocal proponent of using inherent contempt, said he doesn’t have a problem with the civil contempt resolution leadership is planning.

“But I will assert that we must revive inherent contempt,” the Virginia Democrat said. “Either we’re serious or we’re not. Either we believe we have broad powers to enforce our own subpoenas or we don’t. I’m one that says we do. And believe me, it will get attention.”

Connolly said he was talking to a member of the administration on an unrelated matter when the person, whom he declined to name, noted “quite seriously” that they don’t want to go to jail. 

“It’s in their heads that we just might,” he said. 

Jail is just one of the possible penalties Democrats could impose using their inherent contempt authority, Connolly said. Others include fines, withholding pay, or disbarment for officials who are attorneys.

“I am disappointed that some in our leadership seem to have dismissed it,” Connolly said. “I think that’s a huge mistake, tactically and from a policy point of view.”

Accelerated consideration

Democrats will urge the courts to accelerate consideration of the contempt matters, Hoyer said.

“They’ve been pretty good at that. Various different courts that have considered these issues have in fact considered them in a pretty timely fashion, and I would hope they could do so here,” he added. 

Hoyer was referring to two federal court decisions in which judges have upheld congressional subpoenas issued to Trump’s bank and accounting firm for his financial records. Trump plans to appeal the rulings.

Several Democrats have cited those two quick and favorable court decisions as evidence the caucus’s current oversight strategy is working and a reason why beginning impeachment proceedings is unnecessary at this time.  But the number of Democrats who publicly support opening an impeachment inquiry has grown in recent weeks to around 50.

Some see the scheduling of the contempt vote as an effort by leadership to temper calls for action action on impeachment.

The Trump administration has made clear its plans to assert executive privilege over as much information congressional Democrats are seeking as possible and fight the House in court, appealing up to the Supreme Court if necessary.

So despite quick initial rulings, court proceedings could still drag on for months or even years. 

It took seven years for the House and the administration to settle a civil contempt action that the then Republican-majority brought against then Democratic Attorney General Eric H. Holder Jr. in 2012 over his refusal to produce documents related to Operation Fast and Furious. President Barack Obama asserted executive privilege over documents on the grounds that disclosure would reveal the department’s deliberative process.

A federal judge in Washington decided in 2016 that the Obama administration must turn over the Fast and Furious documents, providing arguments that irked both sides and led to a protracted legal fight. In 2018, the Republican-led House agreed with the new Republican administration to settle the case on the condition that the district judge would vacate the parts of the ruling that each side didn’t like. The judge refused, and the case lived on.

The case finally came to a close May 8 as the now Democratic-led House and the Trump administration filed a settlement agreement that included an agreement to basically ignore the district court ruling if the disputed issues ever come up again.

The committee disagrees with portions of the ruling that conclude “the deliberative process privileged may be asserted against Congress,” according to the settlement. And the executive branch continues to disagree that “the Committee had standing and a cause of action to bring this suit.”

Todd Ruger contributed to this report.

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