Tag: Contempt of Congress

Saturday Soother – February 22, 2020

(There will be no cartoons posted this week)

The Daily Escape:

Bass Harbor Head Light, Acadia NP, ME – 2019 photo by York Chen

Some are saying that the Democrats have abandoned the House as an instrument of power, and that it might be lost forever. The idea is that Democrats have surrendered the power of oversight, because they haven’t been able to use it effectively, and they can’t enforce their subpoena power.

This was the calculus of the Trump administration. If you stonewalled the House Democratic majority, their only option was to declare contempt. Once contempt is declared, it is up to the Department of Justice to enforce the order, an impossible expectation so long as it’s Trump’s DOJ.

After a contempt order has been issued, Congress can pass the order on to the DOJ or, to the DC US Attorney’s Office for prosecution as a civil or criminal matter. In theory, a charge of contempt could result in a fine or jail time, though in reality, that’s unlikely to happen.

After that, it’s up to the courts. That process takes a long time, and the outcome is far from certain. If a judge rules against Congress and in favor of the Trump administration, it could set new legal precedent that could make it easier for future presidential administrations to withhold information from future congressional committees.

The House did exercise its impeachment power, but it’s clear that regarding oversight, Trump has no intention of cooperating, nor will his administration. So the Democrats are facing a Constitutional question: The House is either an independent instrument of power and authority, or it is not.

We’d like to think that the next president and those that follow will not abuse their powers. Or if/when they do abuse power, they will be confronted by a Congress controlled by the other party, and both contempt and impeachment will be taken seriously by the president.

If a Democratic president and a Democratic Congress were elected, they could agree on a series of changes to limit presidential overreach and misconduct. Here are a few options:

  • Statutory penalties for contempt of Congress followed by swift review by the Court of Appeals for the DC Circuit
  • Tightening time limits for responding to Freedom of Information Act requests and enacting penalties for abuse
  • Restatement and enforcement of whistleblower protections, including penalties for outing and retaliating against whistleblowers

Even these moves may not be enough to rein in a president who has operational control of the DOJ. It will take the Supreme Court to settle the issue of the power of Congressional oversight vs. the power of the president’s executive privilege.

Trump’s presidency has revealed great vulnerabilities in our politics. Americans must want democracy badly enough if democracy is to survive. Despite our adulation of the framers, the Constitution works because Americans have made it work, not because of the brilliance of its design.

We’re facing a critical presidential election. There must be serious soul-searching by all of us regarding who should have political power.

The question for November is why have so many Americans lost faith in democracy, and what must we do to restore that faith?

No coffee recommendation today, we’re already waay too amped up from Trump’s pardons of bad actors along with his threat to pardon convicted liar Roger Stone. Or, maybe his arguing in Colorado Springs that Obama should be impeached put you over the edge. Maybe you were interested in seeing Mike Bloomberg take the debate stage, only to find out that Bloomberg brought a wallet to a knife fight.

Bloomberg was probably wishing he had bought a podium in a better neighborhood!

It’s time to get some distance from the circus in DC and forget about the shouting and posturing. It’s time to take a break with a Saturday Soother. This week settle back and listen to Leonard Cohen’s “Hallelujah” performed by the 5th grade chorus from PS22 in Staten Island, NYC. Wrongo promises you will be happy that you watched:

Think about how a public school music teacher reinvents his chorus every year with a new 5th grade class. This is one reason why we need to fund arts in public schools.

Those who read the Wrongologist in email can view the video here.

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Barr May Never Face the House Judiciary Committee

The Daily Escape:

Sunset at Malin Head, Donegal, Ireland – 2019 photo by jip

(There will not be a Saturday or Sunday column this weekend, or next. Wrongo and Ms. Right are traveling to two different states, attending the college graduations of grandchildren Elise and Conor.)

After the contentious Senate Judiciary Committee hearing on Tuesday, AG Bill Barr has canceled his scheduled appearance before the House Judiciary Committee. There is plenty of speculation about what happens next.

House Judiciary Chairman Jerry Nadler (D-NY) had previously said that he would subpoena Barr if he refused to testify. If Barr ignores the subpoena, as the Trump administration has done regarding document production, Democrats on the committee have indicated that they will move to hold the AG in contempt of Congress. From the LA Times:

“A contempt finding is how Congress may respond when someone refuses to testify or provide information as part of a House or Senate investigation. The Supreme Court has repeatedly upheld that Congress has a right to compel people to comply with its oversight efforts.”

In the past, just the threat of being held in contempt (not to mention Congress’ power over funding the government) was usually enough to convince an administration to comply with a request, or at least negotiate a compromise.

No longer. The Trump administration has no intention of complying with subpoenas from Democrats.

If Barr was held in contempt of Congress, what happens next? Congress has a few options. The most common is that it can send a criminal contempt referral to a US attorney. If prosecuted and convicted, the punishment is up to a $10,000 fine and a year in jail.

The last administration official to be held in contempt of Congress was Anne Gorsuch, Neil Gorsuch’s mother, who was head of the EPA in the 1980s. The House issued a subpoena, Ms. Gorsuch said “no thanks”. Congress referred it to the DOJ for enforcement, and the US Attorney refused to carry it out.

So the finding of regular contempt is enforced by the DOJ, and the DOJ has the discretion to not prosecute the finding.

If they fail to do it, the House would fall back on their inherent contempt power. Yes, there is such a thing. The long dormant inherent contempt power permits Congress to rely on its own constitutional authority to detain and imprison someone who is held in contempt until the individual complies with congressional demands.

Problem is, the inherent contempt power hasn’t been used since 1935. The inherent contempt power is not specified in a statute or constitutional provision, but has been deemed implicit in the Constitution’s grant to Congress of all legislative powers.

The Sergeant At Arms is Congress’s proper arresting authority, however, there is no jail in the Capitol. There are holding cells at the Capitol Police Dept., but they are not appropriate for a long term detention. And even if the Sergeant At Arms did arrest Barr, it is likely that he would quickly be released.

Here’s what we’ve learned this week: Congressional enforcement of a subpoena has no teeth if it is used against a member of the Trump Administration. So, there will never be a consequence for Barr, or any other member of the Trump administration disobeying a subpoena.

Democrats need to think very clearly about their messaging in the face of their anger at William Barr. Saying that “Trump is terrible and we are powerless” is not a winning message.

Saying “vote for us and we’ll fix this when we win in 2020” is better, but doesn’t sound like a great message either.

The Mueller Investigation game has already been won by Republicans. Democrats can try to test the system. If it works, we still have a country.

But, if they try, and it doesn’t work, we’re back to saying: “Trump is terrible and we are powerless”.

Things are moving a lot faster than most Democrats realize. It isn’t clear that traditional politics (compromise, etc.) will survive. And it’s even less clear what is going to replace it.

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