House subpoena fights imperil interbranch comity
© Greg Nash

The hail of House committee subpoenas pelting the administration and being batted right back is like watching a fast-paced badminton match being played in high winds. The frictional back and forth between the branches is nothing new, but the clashes are usually resolved by compromises acceptable to both sides. 

That is, at least until now. Never before has a president signaled that his administration will resist all subpoenas issued by one house of Congress because it is under the control of the opposition party. If the art of the deal now means “no deal” unless on my terms, then our constitutional system of shared powers and checks and balances is in grave peril. 

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Leaving Congress to litigate dozens of subpoenas through contempt citations is not a promising alternative, at least not in the lifetime of this Congress or this presidency. It may be the president is counting on running out the clock in the courts and provoking House impeachment proceedings to fire-up his base for the 2020 elections. But fire has a way of spreading to adjacent structures, including the very pillars of our constitutional framework.  

The president has even threatened to take his case to the Supreme Court for a ruling on the meaning of high crimes and misdemeanors if the House impeaches him, claiming he has committed no crimes, high or low. His threat ignores established court precedent that impeachment is a political question, not justiciable through the courts. According to the Supreme Court’s ruling in Nixon v. the U.S. (1993) on the impeachment and removal of district court judge Walter Nixon, the House and Senate have the “sole” power to impeach and convict, not subject to review by the courts

What is more problematic is how Congress hopes to prevail in finding someone in contempt for failure to testify or provide subpoenaed documents. Such citations by the House are ordinarily enforceable through the Justice Department which has prosecutorial discretion. Not surprisingly, the Justice Departments is reluctant to prosecute fellow administration officials.

The House found that out in 2012 when it cited President Barack Obama’s attorney general, Eric Holder, for criminal contempt for his failure to provide documents relating to the failed ATF “fast and furious” gun-walking sting in the southwest U.S. The Justice Department refused to prosecute the case after President Obama invoked executive privilege over the subpoenaed materials (just as President TrumpDonald John TrumpO'Rourke: Trump driving global, U.S. economy into recession Manchin: Trump has 'golden opportunity' on gun reforms Objections to Trump's new immigration rule wildly exaggerated MORE now has done on the Mueller report, though most of it has already been made public). The Holder case raged-on in a parallel civil contempt case approved by the House. While a court upheld the House’s right to litigate the matter, it never rendered a decision on the merits before the Obama administration ended.

Current Attorney General William P. Barr may well face a similar scenario if the House pursues a two-track contempt process over his failure to comply with subpoenas for the un-redacted Mueller report on Russian interference in the 2016 election and his testimony on it.

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What alternatives does Congress have other than leaving the decision to voters at the next election?  There is some talk of Congress invoking its “inherent” contempt authority of arresting the recalcitrant witness and imprisoning him or her in a congressional facility (or elsewhere) and trying him or her at the bar of the House. That alternative has not been used since 1935 because it is considered extremely time-consuming and cumbersome. 

Make no mistake about it, Congress is quite right to pursue its legitimate Article I responsibilities to oversee the executive branch and to obtain information critical to that obligation. Without the means of doing that, Congress is effectively stripped of one of its most important powers to superintend a potentially runaway executive. But it must be selective in its pursuits if it is to remain credible with the public.

President Trump indicated after the 2018 midterm election, in which Democrats regained control of the House, that if Congress took the approach of investigating his personal and official life at every turn, it would be forfeiting any opportunity to work with the administration on achieving mutually desirable policy goals.

The fact that last week, in the midst of the raging subpoena wars, the president sat down with Democratic congressional leaders to discuss a bipartisan deal on infrastructure is some indication that the president may still be open to reclaiming at least some of the comity between the branches on legislating and information-sharing that has characterized our system since the beginning. It may require a friendly intervention with the president by some Constitution-minded Senate Republicans to right the listing ship of state. 

Don Wolfensberger is a fellow at the Woodrow Wilson Center and Bipartisan Policy Center, author of “Changing Cultures in Congress: From Fair Play to Power Plays,” and former staff director of the House Rules Committee.  The views expressed are solely his own.