Top Trump officials who have refused subpoenas to testify in impeachment hearings should face a long-standing process as old as the nation itself. They should be held in contempt of Congress and forwarded to a grand jury for prosecution.
Donald Trump has repeatedly ordered officials not to honor subpoenas under a blanket assertion of executive privilege, which has already been rejected by courts.
As of this month, however, four White House officials have followed Trump’s directive and refused to comply with congressional subpoenas over the Ukraine scandal.
Declaring them in contempt is the next logical step, and it should be taken immediately.
The court held that Congress’s power to hold someone in contempt was essential to ensure that Congress was “… not exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may mediate against it.”
Only the president is exempt from contempt proceedings by executive privilege, not his cabinet members or other administration officials, according to the Office of Legal Counsel.
Congress has used its contempt powers circumspectly over the years. The last time Congress arrested and detained a witness was in 1935.
Traditionally, cases were referred to the U.S. Justice Department for action. Attorney General William Barr has already demonstrated his predisposition to support Trump on legal matters.
Barr dismissed the Ukraine whistleblower complaint against Trump even after the intelligence community Inspector General Michael Atkinson determined it was “credible” and “urgent.”
So, it’s unlikely he would pursue contempt charges against Trump officials.
But the Justice Department isn’t the only route to pursue contempt charges. Congress created a statutory process for contempt in 1857.
The Supreme Court affirmed Congress’s statutory power in Jurney v. MacCracken, a 1934 case involving the destruction of subpoenas by an official under investigation.
According to its statutory authority, Congress can refer a contempt citation to the U.S. Attorney for the District of Columbia.
The current U.S. Attorney is Jessie K. Liu. She was appointed in 2017 after serving as an assistant attorney general and is a seasoned prosecutor.
According to the law, it would be Liu’s duty to refer the matter to a grand jury for action.
Anyone convicted of “contempt of Congress” faces not less than one month or more than twelve months in jail and a fine of not more than $100,000 or less than $100.
Over the past 45 years, 18 government officials have been held in contempt of Congress with mixed results.
Six officials, from Secretary of Commerce Rogers C.B. Morton and Secretary of State Henry Kissinger Jr. in 1975 to Secretary of Health, Education, and Welfare Joseph Califano Jr. in 1976 and Secretary of Energy Charles W. Duncan, Jr. in 1980, substantially complied with subpoenas after being held in contempt.
In 1982, EPA Administrator Anne Gorsuch was the first cabinet-level official to be held in contempt by Congress.
The Justice Department, normally responsible for prosecuting the charge, immediately filed a civil suit in U.S. District Court in Washington, D.C., to block any further action. Department officials said they expected the civil suit to forestall any prosecution.
The suit was ultimately dismissed.
More recently, contempt cases have ended up in court, where they have quickly become bogged down until well after the issue at hand is resolved.
Hillary Clinton’s former technology aide, Bryan Pagliano was subpoenaed and held contempt in Congress’s email investigation, but never pursued the matter, according to Politico.
In 2012, the Justice Department declined to prosecute former Attorney General Eric Holder for ignoring a congressional subpoena, citing executive privilege, which went unchallenged.
“The problem is enforcing them,” D.C. lawyer Stanley Brand told the politics and government website.
“They can go the civil route in the Senate, but that’s a lengthy process. That can take a year or more. They could go under the criminal statute, but that’s sort of unavailing because by the time that gets decided, it’ll be the next Congress.”
D.C. Federal District Court Chief Judge Beryl A. Howell ruled last month in a 75-page opinion the House Judiciary Committee was entitled to view secret grand jury evidence gathered by special counsel, Robert S. Mueller III.
The ruling was significant because Howell determined that impeachment proceedings outweighed any need to keep the information secret from lawmakers, according to The New York Times.
Ironically, she cited Trump’s policy of noncooperation with the impeachment inquiry as a basis for her decision.
“Congress’s need to access grand jury material relevant to potential impeachable conduct by a president is heightened when the executive branch willfully obstructs channels for accessing other relevant evidence.”
The House Intelligence Committee has warned that ignoring subpoenas could form the basis of an article of impeachment on obstruction of Congress.
But Congress should go farther and pursue contempt charges against any administration officials who refuse to testify. Cases should be referred to the US. Attorney in D.C. and should get expedited treatment from the courts, if they end up there.
Congress needs to demonstrate that impeachment proceedings are a gravely serious matter.
Its power of contempt is one way to ensure that it has all the facts before proceeding to vote on articles of impeachment.