Viewpoint: What Congress Can Do When Trump Appointees Defy It

The fight for control of information from the Russia investigation is heading into uncharted legal territory. The House Judiciary Committee has voted to hold Attorney General William Barr in contempt of Congress for refusal to provide the committee with the full, unredacted version of Special Counsel Robert Mueller’s report. Earlier this month, House Intelligence Chairman Adam Schiff publicly signaled his intention to impose fines on the federal officials who refuse to comply with congressional subpoenas. “We’re looking through the history and studying the law to make sure we’re on solid ground,” the California Democrat said, revealing that he and his staff are aware that the move would be unorthodox and unconventional. Under these circumstances, the trepidations of the Democratic leadership are understandable. Yet the important thing is: Fining Barr would be legal—even if enforcing the fine could itself prove tricky.

The legal framework governing situations like this is seldom used and little known. As it happens, I studied it for a forthcoming law review article. Although the Constitution does not expressly provide Congress with investigatory power, it is a logical extension of the power to legislate.

Much as the president needs to be able to hire people to execute the nation’s laws, the House and Senate need to be able to collect information to make those laws in the first place. In the 1927 case McGrain v. Daugherty, the Supreme Court stated that a “legislative body cannot legislate wisely or effectively in the absence of information.” Despite the highest court’s imprimatur, Congress’s requests for information during investigations have not always been met with cooperation from the executive branch. When informal requests for information are disregarded, Congress exercises a power usually reserved only for the courts: it issues a formal subpoena. Like a subpoena issued by a court, the person receiving the subpoena is on notice that further refusal to disclose the requested information will open the door to punishment.

The first step is to hold the individual “in contempt.” This serves as Congress’s formal expression that an individual has disobeyed the body’s orders, thereby obstructing its information-gathering. But much like being held in contempt of court, the decision would lack genuine force if those who defy Congress faced no consequences. To pressure such people, lawmakers have traditionally resorted to three different strategies: inherent contempt, civil contempt, and criminal contempt.

The oldest approach, and now the most draconian, is to arrest and detain the contemnor—that is, the person being held in contempt. This is known as “inherent contempt” power, where the sergeant-at-arms of Congress treats the person in contempt in the same way that a sheriff or bailiff in a courtroom would treat someone disturbing the court proceedings. Despite the Supreme Court’s decision affirming Congress’s power to arrest and detain those held in contempt, and the apocryphal story about an empty dungeon underneath the Capitol dome, Congress has not exercised this option since 1934. It has instead mainly relied on transferring the contempt proceedings to the courts, leaving a judge to decide the appropriate punishment for civil or criminal contempt.

The criminal contempt statute, passed in 1857, makes it a federal crime to defy congressional subpoenas. Congress has the option of asking the Justice Department to sue anyone held in contempt for violating this federal law. If Congress succeeds in obtaining a favorable judgment, the judge can order the contemnor to be jailed or fined. But, not surprisingly, if the individual held in contempt is an executive branch official, Justice will likely refuse to sue him or her—as it has in every case involving a federal official in the past 10 years.

Alternatively, either the House or the Senate can authorize some of its members to bring a civil contempt case, circumventing the need to rely on the Justice Department. This option too has its own shortcomings. First, courts are hesitant to entertain disputes that involve a tug of war between two branches of the government. Second, litigating the matter in courts can be time-consuming in practice, so it’s not helpful when Congress’s main concern is expediting access to information. In the past, similar cases have dragged out in the courts for long enough that the requesting Congress and the incumbent administration’s terms both expired before reaching a resolution.

Neither of these options helps Congress get the information it wants in a timely way; both options require cooperation from one or two of the other branches. The increasing sense of frustration with these strategies has shifted the attention to creative ideas for punishing those in contempt. One such idea is to impose fines on noncompliant federal officials.

Fining federal officials circumvents the need to rely on the two other branches. It’s also more politically palatable than arrest and detention. Still, the question of whether Congress has the power to use its contempt power in such a manner has been murky, given that it has never been used before. Article I, Section 9, of the Constitution (known as the “bill of attainder” clause) prohibits legislative acts that single out one individual for punishment. When Congress has previously tried to withhold the salary of executive officials as an indirect way to remove them from office, courts have nullified such attempts as infringements on the president’s constitutional power to remove officers.

Even so, there are solid reasons to believe that Congress does indeed possess this power. The Supreme Court has consistently likened Congress’s contempt power to that of the courts. And since judges routinely issue fines to those held in contempt of court instead of jailing them, Congress too should be allowed to exercise the same power without violating judicial precedent. Second, although imposing fines on federal officials with the indirect motive of removing them from office can be unconstitutional, using the same means to achieve a different goal—namely, disclosure of information to protect congressional investigations—is a different story. Congress has the power of the purse. Refusal to comply with its normal investigative proceedings will impose additional costs on congressional committees, and a fine aimed at recouping those costs can be justified under Congress’s prerogative to protect against waste of federal resources.

If Congress has the power to directly fine contemnors without going to court first, the procedure it should use remains unclear. One possible strategy is to borrow the legal procedures used by Congress in disciplining its own members. In the past Congress has directly fined its own members at the conclusion of disciplinary investigations by either asking the Treasury Department to withhold a certain amount from their salary or asking the member to write a check directly to the Treasury. In some cases, the fine that was assessed was commensurate with the cost of the ethical investigation.

The contemnor or the Treasury might well refuse to comply with these requests. If the contemnor—Barr, for instance—is directly asked to provide a check and refuses, Congress’s only recourse would be to resort to the courts again, but this time with the much stronger claim that the contemnor has misappropriated federal money, a serious crime on its own. Alternatively, Congress can ask the Department of the Treasury to withhold the contemnor’s salary. The Treasury has extensive control over the administration of the budget, and the department might well push back against Congress, much as the Justice Department does when it declines to pursue criminal action. Yet the case for executive discretion to ignore Congress’s demands will be much weaker. Unlike Justice, which enjoys the right to exercise discretion on whether to prosecute a criminal case, the Treasury’s refusal to follow congressional demands over management of federal money will not have a clear nexus to any constitutional right that would counterbalance the power of the purse.

It remains to be seen how far Democratic leadership will venture down this unexplored path. But a new precedent could come into play again quickly. The House Ways and Means Committee has issued a subpoena for President Donald Trump’s tax returns. On Friday, Treasury Secretary Steve Mnuchin refused to comply.