It has been obscene to watch Congressional committees subpoena witnesses to appear and to subpoena various government agencies for the production of documents regarding very serious investigations only to be stonewalled. Potential witnesses AND those who receive production-of-document subpoenas are NOT appearing and NOT producing those documents demanded by Congress. The Senate Select Committee on Intelligence and The House Permanent Select Committee on Intelligence are the two chief committees who have fought for testimony and documents from current and former Department of Justice employees and others which seldom see successful subpoena results. This is especially frustrating — not just for committee members, but for American citizens who expect Government to be not only responsive in providing evidence in these investigative matters, but to achieve expected results from the various investigations underway. For the seemingly nonstop obstruction of witness testimony and document production, Americans want not just answers, but results.
What can be done?
There IS Recourse
Following the refusal of a witness to produce documents or to testify, the Committee is entitled to report a resolution of contempt to its parent chamber. A Committee may also cite a person for contempt but not immediately report the resolution to the floor. In the case of subcommittees, they report the resolution of contempt to the full Committee, which then has the option of rejecting it, accepting it but not reporting it to the floor, or accepting it and reporting it to the floor of the chamber for action. On the floor of the House or the Senate, the reported resolution is considered privileged and, if the resolution of contempt is passed, the chamber has several options to enforce its mandate.
Under this process, the procedure for holding a person in contempt involves only the chamber concerned. Following a contempt citation, the person cited is arrested by the Sergeant-at-Arms for the House or Senate, brought to the floor of the chamber, held to answer charges by the presiding officer, and then subjected to punishment as the chamber may dictate (usually imprisonment for punishment reasons, imprisonment for coercive effect, or release from the contempt citation).
The witness would have certain due process rights such as the right to counsel, to be advised of the nature of the charges, and to confront witnesses and compel them to appear. The witness could also resort to the courts, for example by seeking a writ of habeas corpus if wrongfully detained. If the dispute were over something like executive privilege, you’d expect the Executive branch to seek judicial intervention at the outset to head off the proceeding — but even then, at least Congress would get a judicial ruling on the privilege question, rather than being forced to rely simply on the Executive’s own interpretation.
Concerned with the time-consuming nature of a contempt proceeding and the inability to extend punishment further than the session of the Congress concerned (under Supreme Court rulings), Congress created a statutory process in 1857. While Congress retains its “inherent contempt” authority and may exercise it at any time, this inherent contempt process was last used by the Senate in 1934, in a Senate investigation of airlines and the U.S. Postmaster. After a one-week trial on the Senate floor (presided over by Vice President John Nance Garner, in his capacity as Senate President), William P. MacCracken, Jr., a lawyer and former Assistant Secretary of Commerce for Aeronautics who was charged with allowing clients to remove or rip up subpoenaed documents, was found guilty and sentenced to 10 days imprisonment. MacCracken filed a petition of habeas corpus in federal courts to overturn his arrest, but after litigation, the U.S. Supreme Court ruled that Congress had acted constitutionally, and denied the petition in the case Jurney v. MacCracken.
Following a contempt citation, the presiding officer of the chamber is instructed to refer the matter to the U.S. Attorney for the District of Columbia; according to the law, it is the “duty” of the U.S. Attorney to refer the matter to a grand jury for action. However, while the law places the duty on the U.S. Attorney to impanel a grand jury for action, some proponents of the unitary executive theory argue that the Congress cannot properly compel the U.S. Attorney to take this action against the Executive Branch, asserting that the U.S. Attorney is a member of the Executive Branch who ultimately reports only to the President, and that compelling the U.S. Attorney amounts to compelling the President himself. They argue that to allow Congress to force the President to take action against a subordinate following his directives would be a violation of the separation of powers and infringe on the power of the Executive branch.
The legal basis for this position, they contend, can be found in Federalist 49, in which James Madison wrote, “The several departments being perfectly co-ordinated by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.” This approach to government is commonly known as “departmentalism” or “coordinate construction.” Others argue that Article II of the Constitution requires the President to execute the law, such law being what the lawmaker (e.g. Congress, in the case of statutory contempt) says it is (per Article I). The Executive Branch cannot either define the meaning of the law (such powers of legislation being reserved to Congress) or interpret the law (such powers being reserved to the several Federal Courts). They argue that any attempt by the Executive to define or interpret the law would be a violation of the separation of powers; the Executive may only—and is obligated to—execute the law consistent with its definition and interpretation; and if the law specifies a duty on one of the President’s subordinates, then the President must “take care” to see that the duty specified in the law is executed. To avoid or neglect the performance of this duty would not be the faithful execution of the law, and would thus be a violation of the separation of powers, which the Congress and the Courts have several options to remedy.
According to a detailed study of Congress’s contempt power by the Congressional Research Service, this inherent contempt power has long been dormant. Congress has not sought to use it since 1935, perhaps because it is too unwieldy and time-consuming or is politically unpalatable. From time to time, partisans on one side or another argue that Congress should dust off this power and start arresting witnesses for contempt on its own rather than relying on the statutory process of a referral to the U.S. Attorney.
Here’s the bottom line for American citizens: as we reported in yesterday’s story and podcast, taxpayers fund the operations of Congress to the tune of $4.6 Billion a year. That number includes all of the legislative operations of the House and Senate, AND all of the other Constitutional functions relegated to the Congress — including implementation of all Constitutional and Congressionally passed laws plus (as the Constitution dictates) operational actions as agreed to by members of Congress that may be violated. Those “actions” include adherence to production and appearance according to legally issued and served subpoenas for all applicable persons.
The criminal offense of “contempt of Congress” sets the penalty at not less than one month nor more than twelve months in jail and a fine of not less than $100 nor more than $1,000.
But let’s be honest about all of this: there is a multitude of federal government officials that have been and currently are under subpoena for appearances and production of documents regarding governmental operations and activities that occurred in the professional lives of those subpoenaed regarding government operations. Those documents and sworn testimony expected to occur as a result of subpoenas are necessary for the legal and just operation of the U.S. government, through its various departments and agencies. The American government has the legal right to expect adherence to the terms of those subpoenas. And those subpoenaed MUST comply.
A “Sample” Scenario
Former DOJ Chief Counsel James Baker testified before Congress about numerous matters. Prior to that meeting, Congressman Jim Jordan spoke to FOX News about this entire matter, especially on the frustration of Congress about Rod Rosenstein’s resistance to subpoenas:
Deputy Attorney General Rod Rosenstein is supposed to appear before a Congressional oversight committee next week. Mr. Rosenstein has continuously ignored (as has the entire Department of Justice) subpoenas issued for production of documents for more than a year that are needed to show DOJ justification for the application(s) to the FISA Court for authorization to surveil through electronic measures members of the Trump Campaign, possibly including the President. On multiple occasions with the subpoena of other DOJ documents, the excuse for non-production is for “national security” reasons. Some documents HAVE been released that when released prove they were not being held for national security purposes but because of their containing embarrassing information about the DOJ, the FBI, and the CIA.
Let’s suppose that when Deputy AG Rosenstein walks into that hearing, the sergeant-at-arms hands him a subpoena that compels him to in 48 hours or less provide those other documents to Congress AND to testify under oath regarding the information confirmed by others that he discussed his personal illegal surveillance of President Trump by wearing a wire while meeting with Mr. Trump. Rosenstein has (for any number of reasons, none of which are true for national security purposes) resisted personal testimony under oath and the production of all those documents. If he refuses to appear and produce within that 48-hour window detailed in that subpoena, have the sergeant-at-arms arrest Rosenstein for “criminal contempt of Congressional subpoena,” taken to jail and jailed per federal law.
“What good would that do?” You ask. It would send a message that FINALLY members of Congress have decided to stop just talking about doing their oversight job and actually DOING Department of Justice oversight!
- certainly, result in the sworn testimony of Rosenstein;
- that testimony would certainly result in additional information necessary to initiate further federal actions regarding criminal wrongdoing by those currently in U.S. government and probably some who have retired or been terminated;
- jailing Rosenstein would send a resonating message to ALL who are part of the government that Congress is no longer willing to let the “tail wag the dog,” but the “dog” — the American People — demand the enforcement of federal laws — ALL federal laws. And when those laws are broken, (like ignoring subpoenas) legal penalties for wrongdoing will be immediate and harsh.
“If” members of Congress will grow backbones and simply do their jobs, Americans will finally see the truth. Americans will see just how evil the critters in the swamp really are.
Maybe then the President will be finally able to start draining that swamp he promised he’d drain if he was elected.