Image Credits: Nadler for Congress.
The House Judiciary Committee is debating whether or not they should hold Attorney General William Barr in contempt of Congress because of his refusal to appear before them and comply with requests for Mueller Report documents. The White House considers these requests “a blatant abuse of power.”
The White House press secretary, Sarah Huckabee Sanders, released a blistering statement:
“The American people see through Chairman Nadler’s desperate ploy to distract from the President’s historically successful agenda and our booming economy. Neither the White House nor Attorney General Barr will comply with Chairman Nadler’s unlawful and reckless demands,” she wrote.
She added: “Faced with Chairman Nadler’s blatant abuse of power, and at the Attorney General’s request, the President has no other option than to make a protective assertion of executive privilege.”
The White House need not worry. Nothing happened when the House Republicans held Attorney General Eric Holder in contempt.
In a bipartisan vote, 17 House Democrats joined the Republican majority in 2012 to hold then-Attorney General Eric Holder in criminal contempt of Congress for not providing thousands of pages of documents regarding Operation Fast and Furious, a serious scandal for the Obama administration.
More Democrats, a total of 21, joined Republicans to find Holder in civil contempt. Two Republicans voted against the criminal contempt citation.
This is why I was one of the first people to argue that Congress must consider using it’s inherent contempt power to lock some folks up. I felt a bit like an unhinged radical when I went out on that limb, but people are coming around to the idea that there really is no alternative. When he served in the Senate, Carl Levin of Michigan was hardly known as an extremist, but he’s making the same point in a piece the New York Times published on Tuesday.
Congress is vested by the Constitution with oversight of the executive branch. The Supreme Court, moreover, has been explicit that Congress has broad power to seek information connected to a “legislative function” and to enforce its demands through its inherent contempt authority. This can include imprisoning someone who declines to comply with a subpoena…
…The House Judiciary Committee has prepared a resolution for a vote on Wednesday on whether to hold Mr. Barr in contempt for refusing to provide the unredacted Mueller report. This form of contempt is statutory, and if Congress concurs, the matter will be referred to a United States attorney reporting to the Justice Department to take it to a grand jury.
But there are other approaches to address this and other examples of intransigence by the Trump administration. One is Congress’s inherent contempt power, last used in 1935. This allows Congress to use its constitutional authority to detain and imprison a person found in contempt until that individual complies with a congressional demand or that particular Congress comes to an end.
It may be rusty, and it’s not something anyone welcomes, but President Trump’s extreme responses to legitimate congressional requests may very well demand strong measures by Congress. To protect its constitutional authority and carry out its constitutional responsibility to the American people, it should not hesitate to use its inherent contempt power if needed.
As was the case with Eric Holder, the House could follow up the statutory contempt citation by filing a civil complaint. For perspective, the civil complaint against Holder passed in June 2012 and they lost in court in October 2014. Based on that timeline, we could expect a resolution of the case against Barr to come in September 2021.
It’s really a question of whether Congress is going to render itself impotent. It’s a choice. They have the power to fight back in a meaningful way. It would be a very controversial and shocking step to take, but the alternative is to willingly neuter themselves by giving away their powers without a fight.