WASHINGTON—In the continuing congressional investigation of the Trumpite invaders and their Jan. 6 coup attempt at the U.S. Capitol, one big stick lawmakers should be wielding is their power to compel compliance with subpoenas for documents and witnesses—and hold malefactors who, in criminal contempt of Congress, don’t obey.
The special House panel plans to charge Donald Trump’s notoriously racist and xenophobic confidant Steve Bannon with contempt for refusal to appear before them and seek help from the Justice Department, part of the administrative branch of government, to enforce their subpoena.
This step, especially in a situation that involves Jan. 6 and the possible ongoing attempt to overthrow the government of the United States, is not adequate. The Congress is within its constitutional authority to send out their sergeant-at-arms to arrest the criminal lawbreakers and bring them before the House to testify.
Being cited for criminal contempt of Congress is no laughing matter. Guilt brings up to a year in jail, a fine of up to $100,000, or both. Yet Bannon, kowtowing to his former boss, still claims “executive privilege” and defies lawmakers, even though he doesn’t serve in the executive branch anymore and did not serve there on Jan. 6. In fact, he hasn’t been employed by the executive branch since August 2017—so no executive privilege applies.
The panel is also pondering what to do about three other ex-top Trumpites: Former chief of staff Mark Meadows, his deputy, Dan Scavino, and former defense official Kash Patel. So far, lawmakers are holding off on contempt citations against them, an indication they may have been cooperating, to one extent or another, with investigators.
The question is could Bannon and the others, and any future Donald Trumps and future sycophantic appointees, completely get away with stonewalling? The outcome is important to the viability of democratic government.
The answer, unfortunately, may well be “yes” if Congress does not assert its authority. There was a time in our history when it did assert its authority and the executive branch respected it. Even when the fascist-controlled Japanese government attacked Pearl Harbor, then-President Franklin Roosevelt went to Congress and asked for approval to go to war against Japan. Today, Congress is routinely ignored as presidents declare and fight wars that result in the deaths of thousands of American soldiers and civilians, not to mention massive numbers of deaths in other nations.
Even in the mainstream media, some are suggesting that Congress should reclaim its constitutional authority here during this investigation. Among them is MSNBC legal opinion commentator Glenn Kirschner.
“Congress’s refusal to deploy its inherent power of contempt during the Trump years left our republic weak and susceptible to attack from within. With the future of our democracy at stake, it is time for Congress to leave timidity at the chamber doors and compel witnesses to testify about their knowledge of the incidents leading up to and culminating in the Jan 6. attack on the U.S. Capitol,” he said.
But the lawmakers’ hands are tied, and they themselves have provided much of the rope. Instead, they have decided to go to the Justice Department which, theoretically, could go to the courts, setting up a process that could delay things for months or years.
On the way to enforcing its will, the committee, chaired by Rep. Bennie Thompson, D-Miss., faces big and interlocking stumbling blocks as it digs ever deeper into who ordered what in the days before the Jan. 6 invasion, which Trump egged on to “stop the steal.”
Three days before that, Trump also tried to manipulate his own Justice Department into overturning the 2020 election of Joe Biden. Trump backed down only when all top DOJ officials, at a tense White House meeting, threatened to quit publicly and en masse, with one exception. Even Trump’s Acting Attorney General, Jeffrey Rosen, declared he would quit.
The holdout was Jeffrey Clark, a lower-level division chief prepared to do Trump’s bidding.
The largest stumbling block to the congressional probe’s success in getting to the bottom of the mess is that the Justice Department, not Congress itself, enforces both subpoenas and criminal contempt citations. And that means the agency must first agree to do so and then convince a judge that Congress is right.
But congressional subpoenas and contempt citations never even got off the ground at Trump’s Justice Department during the Republican’s four-year reign. When Congress submitted them to the DOJ, it simply refused to go to court to enforce lawmakers’ will.
Looking back to those days, Trump aides and lawyers are trying to run out the clock, with delay-delay-delay, most notably in the year-plus investigations by New York Attorney General Letitia James and Manhattan District Attorney Cyrus Vance, Jr., to get at, and unravel, Trump’s tangled finances and tax law evasions. Trump’s defenders also slow-walked another investigation, by the tax-writing House Ways and Means Committee.
But back to probing Jan. 6
Putting the whole mess in DOJ’s hands gives Bannon, and anyone else, the opportunity to defy and stall until this Congress ends on Jan. 3, 2023, and the committee subpoenas automatically lapse. Or until a Trumpite judge rules against lawmakers. And that’s a big problem for anyone interested in checking unbridled executive power which circumvents the Constitution, defies Congress, and hurts democratic government.
Some lawmakers anticipated the problem, four years ago. To try to restore at least some check on presidential power, the unlikely duo of Reps. Darrell Issa, R-Calif., and Jerrold Nadler, D-N.Y., offered a bill (HR4010) in 2017 to speed such cases through the courts, including quick appeals to the U.S. Supreme Court. The House passed it by voice vote on Oct. 23, 2017. It died in the GOP-run Senate.
“We discovered a flaw in Congress’s subpoena power,” Issa explained during debate. “Congress has, and has always had, and has been supported all the way by the Supreme Court, the need to do oversight.
“With that, we issued subpoenas. Enforcement of those subpoenas has come into conflict over the last several years,” during investigations led by both parties. Both Democratic and Republican presidents “questioned the standing” of Congress to subpoena the documents and testimony it needed, and to punish officials who refused to obey.
Added Nadler: “The Supreme Court framed that responsibility this way: ‘A legislative body cannot legislate wisely or effectively in the absence of information it needs about policies it wants to change. Where the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who possess it.’”
Which means, translating Nadler’s legalese, that the justices ruled lawmakers have the power to subpoena information from anyone, force them to testify, and rule them in contempt if they refuse. That includes, now, Bannon. But Congress left enforcement up to the Justice Department and the courts.
Why doesn’t Congress go after Trumpite aides itself? Why won’t it send the Capitol Police to put Bannon in handcuffs? Or deploy the House sergeant-at-arms? Or somebody other than the Justice Department?
The answer is that while the Supreme Court said in 1821 Congress has “inherent authority to arrest and detain recalcitrant witnesses,” and ruled in 1927 that power covers private citizens, not just officials, it just plain won’t.
And in the 1950s, the justices said courts can enforce congressional subpoenas and punishments, and lawmakers should let them do it by filing civil cases. That idea’s been written into federal law, the Congressional Research Service (CRS) reported in 2019.
“The executive branch has asserted ‘the contempt of Congress statute was not intended to apply and could not constitutionally be applied to an executive branch official who asserts the president’s claim of executive privilege,” CRS’s legal analysis says. Bannon did that; former Acting AG Rosen didn’t.
“As a result, there have been recent instances in which use of the criminal contempt of Congress provision against an agency official has proven unavailing,” CRS continued.
“For example, when the president directs or endorses non-compliance with a subpoena, such as where the official refuses to disclose information pursuant to the president’s decision, the information is protected by executive privilege, past practice suggests the Department of Justice (DOJ) is unlikely to pursue a prosecution for criminal contempt.” That’s a perfect description of what happened with Trump.
“Even when the official is not acting at the direction of the president, the executive branch has argued that in deciding whether to pursue the case it retains authority to make an independent assessment of whether the official has violated the criminal contempt statute,” CRS adds.
Elie Mistal, an attorney and executive editor of the Above The Law website, wrote in the Los Angeles Times two years ago that the House could send its sergeant-at-arms to bring in malefactors—then, Trump Attorney General William Barr.
Under Mistal’s theory, House Speaker Nancy Pelosi, D-Calif., could send that official or the Capitol Police to nab Bannon. But neither the CRS report nor the entire Capitol Police manual even mentions having the police snatch and haul in such lawbreakers. Besides, Mistal admits, it could backfire.
“If Trump continues to act like a king, Pelosi has some authority to start acting like an Oliver Cromwell,” Mistal said then. “But history tells us that such situations don’t work out well for kings or Cromwells.” (Cromwell, of course, had British King Charles I beheaded in 1649. Cromwell, still a virtual dictator, died—unloved by Britons—nine years later, and the monarchy was restored in 1660.)
Research also shows the last time lawmakers sent anyone physically to nab a defiant witness was when Senate Assistant Sergeant-at-Arms John McGrain went to Cincinnati in 1927 and arrested Mally Daugherty, an Ohio bank president and brother of Harry Daugherty, the late President Warren Harding’s notoriously corrupt Attorney General.
In so many words, the senators wanted Mally to testify, in a variant of Sen. Howard Baker’s question about Richard Nixon and Watergate, “What did he (Harry) know and when did he know it?”
By then, Harry Daugherty was in disgrace and facing trial on other charges. Mally refused to answer questions about the miasma of corruption called Teapot Dome, and Harry Daugherty’s involvement in it.
Available records show Mally never told the senators a thing, and he went to jail for contempt.
Ruling on Mally Daugherty’s case, the Supreme Court voted 8-0 that the Senate had the right to hold anyone, even a private citizen like Mally, in contempt for refusing to testify.
Though the justices have since put some curbs on that freewheeling declaration, lawmakers have often abdicated their responsibility to hold a president and his aides accountable. In so many words, they’ve issued subpoenas, but when push came to shove, CRS found, often didn’t back them up. They left matters in the Justice Department’s hands, and the department frequently ducked.
Trumpite Republicans have provided even more rope for Congress to tie its own hands, Mistal wrote two years ago. “The founders may not have contemplated an executive and his allies—the Republican Party—completely unwilling to act in the best interests of the nation and the rule of law,” he said in a statement that rings even more true today.
If democracy is to survive in America, Congress must, at the very least, re-assert its constitutional role as an equal branch of government.
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