Should House Democrats ‘lead with investigations’? They have little choice.

House Democrats must start investigations right away and be relentless or they might as well not bother.

Democrats already largely know what information they want. House Democrats have sent dozens of letters in the last two years to request information. Democrats on the Oversight Committee, for instance, requested information about the federal government’s lease of Washington’s Old Post Office. President Trump and his older children converted the historic landmark into Trump International Hotel, now the home away from home for officials of the world’s most repugnant regimes.  

{mosads}The administration ignored the request despite a law that requires federal agencies to provide information that “any seven members” of the Oversight Committee request.

The constitutional power and duty of Congress to conduct oversight of the executive branch is beyond question. The Supreme Court called Congress’s subpoena power “as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.” A prominent political scientist, Woodrow Wilson wrote that it is “the proper duty of a representative body to look into every affair of government and to talk much of what it sees.”

The difficulty will be to extract information from a president who does not respect the rule of law or democratic institutions.

“He doesn’t care,” former House Speaker Newt Gingrich (R-Ga.) said. “That’s why he has lawyers. They can come at him from a hundred levels. He’ll just hire a hundred lawyers and say ‘Call me when it’s over’…I don’t think he has any fear of the Democrats’ ability to investigate.”

House subpoenas expire at the end of each Congress. Trump knows that dilatory tactics can make two years pass quickly.

Judges can enforce court subpoenas through criminal contempt. The statutes for contempt of court and for contempt of Congress are effectively the same.

The statute requires that the House refer criminal contempt to the U.S. Attorney, “whose duty it shall be” to prosecute. Administrations do not usually prosecute themselves in disputes with Congress, however. When House Democrats referred criminal contempt for defiance of subpoenas by the Bush administration, the Bush administration refused to prosecute. The Obama administration did the same when House Republicans referred criminal contempt charges for defiance of subpoenas by the Obama administration.

The House also has power that is similar to the civil contempt power of courts. A judge can incarcerate a contemnor until the contemnor complies with a subpoena or court order. The House has the same power to incarcerate a contemnor until the contemnor complies with a House subpoena.

There are reasons that Congress has not exercised that contempt power since 1935, however.

A vote by Congress to incarcerate a contemnor will not have the legitimacy in the eyes of Americans that court orders have no matter how clear the law, judicious the procedures or brief the incarceration. The debate will be a spectacle. President Trump and House Republicans will cry foul and the contemnor will become a martyr. And if the Secret Service protects the contemnor, then there is the nightmarish prospect of an armed confrontation when the House Sergeant-at-Arms attempts to take the contemnor into custody.

The most practical way to enforce House subpoenas against administration officials is the procedure established by House Democrats a decade ago: The House files a lawsuit that asks the court to decide whether the House is entitled to subpoenaed information, and if so, to order the administration to comply. If an administration official defies the court’s order, then the official is in contempt of court.

The drawback is that it takes time.

Courts are reluctant to intrude in disputes between Congress and the president that might be resolved by negotiation. We can declare the impasse now. The information that the House will subpoena is likely too damning for Trump to produce without compulsion, and maybe not then. House Democrats should use their constitutional power, especially the power of the purse, to prod the administration to comply. But they should hold no illusion that any claimed willingness to negotiate is not just a delaying tactic.

House Democrats must immediately request again the information that they requested when in the minority. If the administration does not promptly provide that information, then the House must issue subpoenas. If the administration still does not provide the information, then the House must promptly file a lawsuit and urge the judge to expedite the decision.

And House Democrats cannot be deterred from their constitutional duty of oversight by the president’s bombast.

Brad Miller represented North Carolina in Congress from 2003 to 2013. He worked closely with House leadership on the legal strategy to enforce House subpoenas in the Bush administration and last year represented 33 House Democrats as friends of the court opposed to the president’s pardon of Joe Arpaio on constitutional separation of powers grounds. 

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