Time for Congress to enhance its contempt authority

Time for Congress to enhance its contempt authority
© Greg Nash

An extraordinary thing is happening in Washington. A congressional committee is preparing a contempt citation for the failure to turn over documents to the House Intelligence Committee. That, itself, is not particularly new, but the target is. Republican House Intelligence Committee Chairman Devin NunesDevin Gerald NunesTrump accuses Silicon Valley of colluding to silence conservatives The Hill's 12:30 Report: Trump steps up attacks on McCain Trump vows to look into Facebook move on Scavino MORE (R-Calif.) is drafting a resolution that would target two high-ranking officials, FBI Director Christopher Wray and Deputy Attorney General Rod Rosenstein, in a Republican administration.

While members often proclaim their fealty to legislative oversight, it is a principle that seems to ebb and flow with the party affiliation of the president. When the White House is in the hands of the opposing party, members demand compliance with congressional subpoenas. Yet, the same members become conspicuously silent when their own administration stonewalls committees. This time is different, and that is a good thing.

Agencies have become interestingly independent and, yes, contemptuous of Congress. This trend is due in large part to the failure of Congress to actively defend its authority when it is exercising its core oversight responsibility, such as investigating possible political influence at the FBI and the Justice Department. President TrumpDonald John TrumpDem lawmaker says Electoral College was 'conceived' as way to perpetuate slavery Stanley Cup champion Washington Capitals to visit White House on Monday Transportation Dept requests formal audit of Boeing 737 Max certification MORE is under a special counsel’s investigation looking at his alleged attempts to influence the FBI and DOJ, while Congress is investigating countervailing claims involving Clinton supporters.

Congress is seeking “outstanding documents” related to an August subpoena dealing with the controversial “Russia dossier,” a private investigation by a former British spy into Donald Trump’s political and business activities. That investigation was bankrolled by the Clinton campaign and the Democratic National Committee, despite earlier denials by top Clinton lawyer Marc Elias and campaign chairman John Podesta.

These concerns have been magnified by new controversies over the political affiliations by DOJ officials. Associate Deputy Attorney General Bruce Ohr was recently demoted, reportedly due to contacts with the author of the dossier, Christopher Steele. Other FBI and DOJ officials are embroiled in controversies over ties to the Clinton campaign or to anti-Trump communications. One of those figures is Peter Strzok, the No. 2 official in the FBI’s counterintelligence division who played a key role in the Clinton and Trump investigations. He was removed for anti-Trump, pro-Clinton statements.

The constitutional question is removed from the merits of the allegations and instead focuses on whether Congress has a right to these documents and witnesses, and whether, if denied, Congress has a right to enforce its authority through contempt power. The answer is that it does.

The Justice Department has a history of stonewalling congressional investigators. The reason has a lot to due with a change, pushed through by the Justice Department decades ago, in the process for prosecuting congressional contempt. Once a house of Congress holds someone in contempt, the matter is handed over to the U.S. attorney for the District of Columbia. The Justice Department has then repeatedly refused to prosecute contempt sanctions against its own personnel.

One of the most glaring examples was the criminal contempt case against President Obama’s attorney general, Eric HolderEric Himpton HolderThe Hill's 12:30 Report: Trump steps up attacks on McCain Court-packing becomes new litmus test on left Press: Which way do Dems go in 2020? MORE, in the “Fast and Furious” scandal. This was an effort by the Bureau of Alcohol, Tobacco, Firearms and Explosives to track guns across the southwest border by releasing a large number of weapons to criminals. One result of this tragic, moronic program was the killing of a federal officer. Holder should have been prosecuted for his congressional contempt, but his own agency refused to even submit it to a grand jury.

I have previously testified before Congress, under both Democratic and Republican presidents, for members to more aggressively protect their inherent authority, including a reexamination of inherent contempt authority. There is an imbalance today caused by the increase in executive powers and the rise of federal agencies. As agencies felt more independent from Congress, they have increasingly treated congressional demands as purely discretionary.

Congress has the right to find officials in “inherent contempt” and can even hold trials for contempt, as it did in 1934. The Justice Department always bristled at the notion of congressional contempt proceedings and fought for decades to take control of the case through the statutory contempt process created in 1857. It assured Congress that it would handle such cases in a fair and detached fashion in bringing such claims before grand juries. Congress finally relented and now follows a procedure by which one house approves a contempt citation and either the Speaker of the House or Senate President certifies the citation to the U.S. attorney for the District of Columbia under U.S. Code.

The Justice Department, however, has largely honored its commitment in the breach. In 1982, in the contempt case against EPA Administrator Anne Gorsuch Burford (the mother of current Supreme Court Justice Neil Gorsuch), DOJ declared it would not submit such cases to the grand jury where an official was acting under a claim of executive privilege. Since then, it has declined to submit contempt cases to the grand jury in the cases of Burford, EPA Assistant Administrator Rita Lavelle in 1983, White House Counsel Harriet Miers in 2008, White House Chief of Staff Joshua Bolten in 2008, Attorney General Holder in 2012 and IRS Director Lois Lerner in 2014.

That brings us back to the current controversy. The citations against Burford, Lavelle, Miers and Bolten were issued by Democratic-controlled houses during Republican administrations. The citations against Lerner and Holder were issued by a Republican-controlled House during a Democratic administration. In contrast, the current proposed citation would be the first issued by a Republican House during a Republican administration.

Part of this new dynamic is the growing view among conservative voters that a “deep state” is undermining President Trump’s policies while protecting his critics. Regardless of the reason, those of us concerned over the shrinking legislative authority in our tripartite system relish the idea of a House refusing to be stonewalled, even by an administration controlled by its own party.

In 1821, in Anderson v. Dunn, the Supreme Court held that absent the power to hold people in contempt, Congress would be “exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may mediate against it.” That prediction has come true with officials acting as if congressional subpoenas as mere requests and their compliance as mere discretionary choices. Yet, this will be a purely symbolic gesture unless Congress moves to reinforce its contempt authority with actual prosecution. It is time for Congress to reclaim the power to hold contemptuous officials in contempt.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.