Subtitle: Inherent Contempt Isn’t What You Might Think It Is.
First off, Corey Lewandowski is a criminal shit. The House GOP are criminal shits. The Trump administration is comprised of criminal shits. They are the ones who orchestrated today’s shitshow in the House Judiciary Committee. They will continue to do so in the future.
So what can be done to deal with this kind of asshole behavior in the future? Magic 8-Ball says...the prospects are unclear.
Let’s start by calling bullshit on all the Nadler/Pelosi name-calling. They are not “weak.” They are not “spineless.” What they are is uncertain as to how to deal with the Republicans’ unified front of total lawlessness. That’s something they need to rectify. Now.
The US Congress has operated for centuries under a “gentlebeings’ agreement” that everyone will respect the rules of the chamber and respect the oaths they took. Sitting members agree to abide by the rules as laid down by centuries of use, and by the committee chairs. Witnesses agree to obey the oath they swore to tell the entire truth. Today’s Nazi Republicans have learned the lesson that five-year olds with weak, spineless teachers learn: if no one is going to enforce the rules, then they can do whatever chaotic shit they please without repercussions. So Lewandowski and Congressional Republicans have decided to say “fuck you” to the rules. Who’s gonna make them obey them? Good question.
Pelosi, Nadler etc are in a bad place. If a witness like Lewandowski decides to virtually wave his flabby ass at the committee instead of cooperating with it, their options are limited. Let’s look them over.
One: Contempt citations.
Once a committee rules that an act of criminal contempt has occurred, the Speaker of the House or Senate President refers the matter to the appropriate U.S. attorney’s office, “whose duty it shall be to bring the matter before the grand jury for its action.”
So, William Barr and his gang of criminals get to enforce this. That isn’t going to go far. And remember 2007, when White House officials like Karl Rove and Harriet Miers told the House committees to go fuck themselves over the contempt citations they issued? These citations usually don’t get much done.
Two: Civil lawsuits.
The Senate and its committees are authorized to bring such a lawsuit under a federal statute. There is no similar statute that applies in the House, but the federal district court in Washington, D.C. has decided that the House can nevertheless authorize its committees to bring a similar civil suit for enforcement of a subpoena.
Okay, This is viable, and this is what the committees have been doing. But, as we know, these are taking an amazing amount of time to resolve. And what happens if, let’s say, Lewandowski is ordered by a court to cooperate with the committee? He merely repeats his shitshow conduct from today while his lawyers whine and bloviate that he was cooperating. Not much gets done here, either.
Three: Inherent Contempt.
Now we’re talking. Nadler can just have the sergeant-at-arms snatch Lewandowski’s ugly ass up and slam him into the Capitol Jail...no, wait. They can’t.
There is no such thing as a Capitol jail. Pelosi got it wrong.
“We do have a little jail down in the basement of the Capitol, but if we were arresting all of the people in the administration, we would have an overcrowded jail situation. And I’m not for that,” [Pelosi said].
Capitol Police officers from multiple divisions told CQ Roll Call that no House jail exists, though Capitol Police headquarters on D Street Northeast does have a holding facility.
[...]
“Obviously, there is not a functioning jail in the Capitol,” a senior Democratic aide told CQ Roll Call on Wednesday.
[...]
“I went to the Architect of the Capitol and found out where the old Capitol jail was located. There was at one time a jail here in the Capitol where the Congress could imprison citizens who refused to comply with its subpoenas,” [former Senate counsel Chuck] Ludlam said.
“Several rooms in the Capitol have evidently been used for detention of offenders. They were called ‘Guard Rooms’ and it is not always clear whether those rooms were kept strictly for custody of prisoners or whether they were also used as a guard station,” then-Architect of the Capitol George M. White told Ludlam.
Okay, so have the sergeant-at-arms drag Lewandowski to the holding facility in the Capitol Police building. Right? Except Nadler doesn’t have the authority to order that. He’s not a courtroom judge. He doesn’t have a bailiff. The sergeant-at-arms isn’t empowered to snatch someone baldheaded on the orders of the committee chair, nor can s/he have them dragged them off to the hoosegow.
What can Nadler do, then?
Inherent contempt was the mode employed by Congress to directly enforce contempt rulings under its own constitutional authority until criminal and civil contempt statutes were passed, and it remained in use into the twentieth century. Under inherent contempt proceedings, the House or Senate has its Sergeant-At-Arms, or deputy, take a person into custody for proceedings to be held in Congress.
It’s been used once. In 1927, when a witness refused to testify before a Senate committee, the Senate passed a resolution ordering the witness to be taken into custody by “a Senate deputy.” The deputy did so, and the witness ran to the courts to complain. The Supreme Court upheld the Senate’s right to do that.
“Each house of Congress has power, through its own process, to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution,” [then-USSC Justice Millis] Van Devanter said. “This has support in long practice of the houses separately, and in repeated Acts of Congress, all amounting to a practical construction of the Constitution.”
Goody! But...wait. This is fundamentally different.
It’s patently obvious that Lewandowski did not give the testimony needed to allow the committee to exercise its lawful function (wanna guess what Barr and the White House thinks about Congress’s power to investigate?). But he showed up. Therefore, inherent contempt as described above does not apply. So, what can Nadler do under “inherent contempt”?
Here’s where I go from researched material to speculation. What I think Nadler can and should do is have his committee pass a resolution to give him, or the majority on a vote, to order the incarceration of an uncooperative witness such as Lewandowski (or Hope Hicks, or or or) until they agree to cooperate, just as a court would do, under the rubric of the impeachment investigation. Same for the assholes like Don McGahn who refuse to appear at all. The committee Republicans will scream and wail. Fox News will howl and squeal. Who cares? Craft it so that it only applies to the Judiciary Committee and only then under a formal impeachment investigation such as, I dunno, this one.
At that point, Lewandowsky could and should be yanked up by his jock strap and slammed into the clink until he agrees to testify. Same with Hicks. Same with McGahn. Same with all of them.
That’s what I think Nadler should do, but I am neither a lawyer nor a Congressional procedural expert. I’d be interested to see what said lawyers and Congressional experts think. I am not interested in the usual wailing and beshitting about “weak,” “spineless” Democratic leaders. If you want to spray that shit in the comments for this diary, expect return fire.