In mid-September, former Trump campaign manager Corey Lewandowski sat down with the House Judiciary Committee and proceeded to mock representatives, make fun of the proceedings, stall, dodge, lie, and generally demean the Congress in every way imaginable. Lewandowski showed up for his backhanded slap at the oversight role of the House, but over two dozen Trump current and former staffers haven’t bothered. They’ve either replied to congressional subpoenas by stating that they had been instructed not to testify by the White House, or simply failed to appear.
This is not anything new for Donald Trump. Literally from the moment his first Cabinet members appeared on Capitol Hill, they have been refusing to answer questions under a claim of privilege, but without ever actually making a formal claim of privilege. Jefferson Sessions did it in front of the Republican-led Senate in 2017. So did then-Director of National Intelligence Dan Coats. So did then-Director of the NSA Michael Rogers. Those first hearings of Trump officials were just a sign of things to come. Again, and again, and again, literally hundreds of times over the last three years, witnesses have appeared, or failed to appear, with every point of interest blocked by a claim of “potential privilege.” And the same rules have applied to documents, which have been routinely buried. Even documents containing data on national health and environmental statistics have been swept behind a wall of privilege.
Why do these Trump officials keep insisting that they won’t talk, but also refusing to make a formal claim of executive privilege? Simply because it gums up the works. Traditionally, the White House and Congress have negotiated over access to such information. When Congress has been, reluctantly, forced to take claims concerning privilege to courts, it has done so with a good deal of worry. The fear is that a judge might rule that some portion of comments made in the White House, some part it had been sometimes able to see through negotiations, really is off-limits to Congress. Perversely, Congress has been slow to challenge privilege claims exactly because privilege is currently so narrowly defined … it doesn’t want the definition getting any larger.
Putting the extra step of not making a formal privilege claim first essentially gives the White House first choice. If Congress does decide to challenge it on some point, it can evaluate the information being requested, determine if it really wants to hang onto it, and make an actual privilege claim. Or it can let that one item go, and return to claiming nonprivilege privilege on the next item. In the meantime, Congress has lost weeks or months, and the value of the information sought has diminished.
So what can be done about it? The answer is inherent contempt.
If Congress feels that privilege has been misused, it can always press forward with a contempt of Congress claim. William Barr was cited with contempt of Congress on July 17 after he failed to comply with subpoenas for both documents and testimony from the House Oversight Committee. Several other contempt citations have been issued at the committee level, but not voted on by the full House. However, as the American Bar Association noted at the time, even Barr’s contempt citation—which seemed straightforward enough—could have faced considerable legal headwinds.
There is no explicit language in the Constitution that empowers Congress to conduct either investigations or oversight. However, there is an implied authority under the blanket of “legislative powers.” The Supreme Court has repeatedly agreed that Congress has the authority to conduct oversight of the executive branch, but the bounds of its “legislative powers” have always remained fuzzy. The broadest view would be that this means anything having to do with the government, including every action of the executive. This is the view generally taken by those in Congress. The narrowest view would be that it applies only to how the executive implements legislation passed by Congress. That’s the view held by William Barr, Donald Trump, and by Trump supporters at both ends of Pennsylvania Avenue.
Just as with executive privilege, Congress has been reluctant to make challenges with regard to oversight authority, because there is always the chance that it could lose big. That’s especially true with a fresh crop of show-me-in-the-text conservative literalists on the bench, ready to demote Congress and elevate the executive to the imperial.
At best—at best—every time Congress is forced to go to court, the delay can be measured in months. So, by not explicitly claiming privilege and leaning on Congress’ built-in aversion to going to court over either privilege or oversight, Team Trump feels it’s in a perfect position. Even if it loses, the cost of losing is nothing compared to the time it’s gained. In that time it can advance its own agenda hugely while Congress … waits.
Against all that, what is inherent contempt, and how could it help?
Inherent contempt was developed in the 19th century explicitly to deal with the same problems that the Congress is confronting today—the length of time it takes to handle a contempt proceeding through the courts. That constraint was made even more galling when the Supreme Court determined that any punishment meted out under a contempt of Congress citation was good only for that term of Congress. So if someone could keep a case bouncing around the courts for a few months, they could simply outlast Congress and make it all go away. Plus, the primary method of moving forward with a contempt charge requires a stop with the U.S. attorney’s office in D.C., which is unlikely to be all that prompt when the attorney general is leaning on it to toss sand in the gears.
By 1857, Congress had created a statutory procedure for inherent contempt. Under that procedure, the House can simply vote to hold someone in contempt and fine them, or even confine them, until they agree to provide requested information in full. After court challenges, the Supreme Court upheld Congress’ authority to hold someone in inherent contempt. Helpfully, the court also ruled that presidential pardons do not apply in the case of an inherent contempt charge.
So … boom. Congress could just point at the next person who refuses to appear or begins to do the Lewandowski shuffle and declare, “Contempt! $25,000 a day. Start the clock.”
Only it’s not quite that simple. The reason that inherent contempt has been allowed to lie dormant for nearly a century goes back to the way the proceedings were written up back in 1857. Inherent contempt may be faster than running off to the courts, but it still represents a kind of mini-trial in front of the entire House or Senate, one in which all the usual legislative delays, amendments, and sidetracking can be used to drag out the proceedings.
So inherent contempt fell out of usage because it was doing what Republicans so often accuse Democrats of doing by conducting an investigation. Inherent contempt proceedings really were becoming roadblocks to the business of Congress. It also had some seriously bad press attached to it, because Congress used inherent contempt to arrest and hold people who were engaged in social protest. Check that date for when the process began. One of the first people held under inherent contempt was a prominent abolitionist.
The House does not have a jail. Inherent contempt doesn’t have a great history. And the process isn’t nearly so pain-free as many seem to assume. But it’s time to bring it out anyway.
The reason that Congress has to deploy inherent contempt now is that it has to confront its twin fears—the definition of executive privilege and the extent of Congress’ oversight authority. And it can’t do that by filing cases that can be allowed to drift around the courts until they simply disappear in January of 2021.
The House should move swiftly to cite the next official who refuses to appear, or who appears and refuses to speak, under inherent contempt. And when it comes to the creaky rules for how inherent contempt is applied, there’s a solution: Change them. Make it possible for a committee, or a special committee, to vote on inherent contempt and set penalties without requiring a vote of the full House.
The executive branch is threatening to push Congress down a hole where its oversight authority is worthless and its contempt citations are laughable. The worst thing that can happen to Congress at this point is to end up where it already is. So fight.