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Why is Congressional subpoena enforcement taking so long?
I decided to find out and produced this thread as a Primer to explain what the House is up against vs tRUmp.
I decided to find out and produced this thread as a Primer to explain what the House is up against vs tRUmp.
The Supreme Court has ruled Congress has broad subpoena powers. But, those powers are limited to "legitimate legislative purposes."
Congress can't investigate crimes, but it can investigate issues affecting legislation and how laws are being applied.
1/x
Congress can't investigate crimes, but it can investigate issues affecting legislation and how laws are being applied.
1/x
The first step in enforcement is "holding the offender in contempt."
The Committee in question holds a vote. If the majority votes yes, the citation is sent to the full Chamber (House or Senate.)
A simple majority is required to bring a finding of contempt to enforce it. 2/x
The Committee in question holds a vote. If the majority votes yes, the citation is sent to the full Chamber (House or Senate.)
A simple majority is required to bring a finding of contempt to enforce it. 2/x
There are then THREE avenues for enforcement:
- Inherent Contempt
- Criminal Contempt
- Civil Contempt
3/x
- Inherent Contempt
- Criminal Contempt
- Civil Contempt
3/x
INHERENT CONTEMPT was granted by the Supreme Court in 1821 and basically means a Chamber can send the Sergeant-at-Arms to arrest someone held in contempt and can then jail them and/or fine them until they comply with the subpoena.
4/x
4/x
Inherent Contempt hasn't been used in almost 100 years. It was last used for the Teapot Dome bribery scandal in the 1920s and against the Postmaster General in the 1930s.
It is considered an aggressive process that Congresses since have been reluctant to use.
5/x
It is considered an aggressive process that Congresses since have been reluctant to use.
5/x
However, Glenn Kirschner, a former US Attorney for DC argues that the obstruction being used by the tRUmp administration is so over the top, Inherent Contempt should be reemployed by this House to speed the process.
6/x https://www.nbcnews.com/think/opinion/why-democrats-congress-should-use-inherent-contempt-force-trump-officials-ncna1058861
6/x https://www.nbcnews.com/think/opinion/why-democrats-congress-should-use-inherent-contempt-force-trump-officials-ncna1058861
CRIMINAL CONTEMPT is option 2. That involves asking the US Attorney for DC to bring criminal charges and impanel a Grand Jury.
However, there are issues with the Legislative Branch asking an Executive Branch employee (the US Atty) to file criminal charges against itself.
7/x
However, there are issues with the Legislative Branch asking an Executive Branch employee (the US Atty) to file criminal charges against itself.
7/x
In the case of tRUmp, you have the added complication of Bill #LowBarr acting like inhouse counsel for tRUmp rather than an Attorney General, so the US Atty would likely be prohibited from pursuing criminal contempt.
8/x
8/x
CIVIL CONTEMPT is option 3. This is the path the House is currently pursuing.
With this method, a civil lawsuit is filed (Presidential pardons don't apply) to ask a judge to rule compliance is required. Failure to comply would then be imposed by the court thru jail or fines. 9/x
With this method, a civil lawsuit is filed (Presidential pardons don't apply) to ask a judge to rule compliance is required. Failure to comply would then be imposed by the court thru jail or fines. 9/x
In June, @politico compiled a list of the ongoing lawsuits filed bu House Committees. There were 10 at that time. Not sure how many have been added.
10/x https://www.politico.com/story/2019/05/08/trump-investigations-list-congress-1309746
10/x https://www.politico.com/story/2019/05/08/trump-investigations-list-congress-1309746
The problem with Civil Contempt is the loooooooong process.
Most of tRUmp's arguments are ludicrous and are getting struck down in court. But, lawyers turn right around and file appeals.
The lawsuits aren't about winning. They're about running out the clock.
11/x
Most of tRUmp's arguments are ludicrous and are getting struck down in court. But, lawyers turn right around and file appeals.
The lawsuits aren't about winning. They're about running out the clock.
11/x
On that score, the WH is winning.
In a recent suit about NYC District Atty access tRUmp's taxes, the judge was so appalled by WH arguments he wrote they were, “repugnant to the nation’s governmental structure and constitutional values.”
12/x https://www.washingtonpost.com/politics/2019/10/08/presidents-dont-have-limitless-immunity-other-takeaways-trump-tax-return-ruling/
In a recent suit about NYC District Atty access tRUmp's taxes, the judge was so appalled by WH arguments he wrote they were, “repugnant to the nation’s governmental structure and constitutional values.”
12/x https://www.washingtonpost.com/politics/2019/10/08/presidents-dont-have-limitless-immunity-other-takeaways-trump-tax-return-ruling/
Does the WH care about losing?
No.
They expected to lose, which is why they put no effort into crafting legitimate arguments.
Lawyers wanted the ruling so they could APPEAL ... drag out the clock.
Every day the suit sits in appeal is another day the taxes stay hidden.
13/x
No.
They expected to lose, which is why they put no effort into crafting legitimate arguments.
Lawyers wanted the ruling so they could APPEAL ... drag out the clock.
Every day the suit sits in appeal is another day the taxes stay hidden.
13/x
DELAY ... DELAY ... DELAY.
That's the tRUmp legal strategy.
By using Civil Contempt, the House is following Congressional norms. That's how both parties have recently handled Congressional contempt.
14/x
That's the tRUmp legal strategy.
By using Civil Contempt, the House is following Congressional norms. That's how both parties have recently handled Congressional contempt.
14/x
But, maybe Kirschner is right. Maybe it's time to resurrect Inherent Contempt. It would:
- Shorten compliance enforcement
- Bypass the courts
- Be immune from pardons
- Give the public a better feeling that progress is being made.
- Shake up the White House.
15/x
- Shorten compliance enforcement
- Bypass the courts
- Be immune from pardons
- Give the public a better feeling that progress is being made.
- Shake up the White House.
15/x
So, the House is taking impeachment very seriously and using all the "normal" tools it has to enforce subpoenas.
But, they aren't using their BIG STICK.
Considering the "unpresidented" level of obstruction exhibited by this WH, maybe it's time.
16/end
But, they aren't using their BIG STICK.
Considering the "unpresidented" level of obstruction exhibited by this WH, maybe it's time.
16/end
