This article by Peter Baker, Maggie Haberman and Michael Schmidt in the New York Times is a hot mess. They start by reporting that the president’s political team is deliberately trying to goad the House Democrats into impeaching him. Then they begin to waffle on that before concluding the piece with this:

While Mr. Trump is pushing Democrats on impeachment, Mr. Giuliani dismissed the idea advanced in some quarters that the president believes it would actually be politically advantageous for Democrats to impeach him without convicting him because it would rally Republicans coming into the presidential election.

“Nobody wants to be impeached,” Mr. Giuliani said. “I think Clinton would say, even though it worked out to his favor, he would have rather not been impeached.”

Back on April 24, I published my Congress Needs to Lock ‘Em Up piece in which I talked about Congress potentially using its “inherent contempt” power to imprison non-compliant witnesses. My main source material for that article was a paper written by Todd Garvey for the Congressional Research Service in May 2017. There are whole sections (see, especially, pp. 13-18 and 56-58) of that paper that I did not cite in my piece about a legal limitation to the inherent contempt power of Congress. Basically, it concerns what the Courts will and will not allow when Congress seeks to exercise its power to arrest people and conduct trials. One test is called “legislative purpose.” If a subpoena does not have any conceivable legislative purpose, then the Courts will be skeptical about Congress locking people up for failing to comply.

A committee’s investigation must have a legislative purpose or be conducted pursuant to some other constitutional power of the Congress, such as the authority of each House to discipline its own Members, judge the returns of the their elections, and to conduct impeachment proceedings.

Here’s another way of putting it:

Despite the Court’s broad interpretation of legislative purpose, Congress’s authority is not unlimited. Courts have held that a committee lacks legislative purpose if it appears to be conducting a legislative trial rather than an investigation to assist in performing its legislative function. Furthermore, although “there is no congressional power to expose for the sake of exposure, so long as Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power.”

One of the key Supreme Court precedents that defines the limitations of Congress’s inherent contempt powers is an 1880 case called Kilbourn v. Thompson. 

Hallet Kilbourn was subpoenaed to testify before a Special Committee established by the House of Representatives to investigate the bankruptcy of Jay Cooke & Company. Though he appeared, he refused to answer any questions and did not tender requested documents. John G. Thompson, Sergeant-At-Arms for the House, took Kilbourn into custody. Kilbourn continued to refuse to testify and provided no explanation for his refusal. The House resolved that Kilbourn was in contempt and should be held in custody until he agreed to testify and produce the requested documents. The Court found that the House did not have the power to punish for contempt. However, House members could not be sued for false imprisonment as they were exercising their official duties and protected by the Speech and Debate Clause, Art. I, § 6, cl. 1. In addition the Supreme Court established several limits in the scope of investigations, called the “Kilbourn Test”.

The Kilbourn Test
(1) Inquiries must not “invade areas constitutionally reserved to the courts or the executive”
(2) Inquiries must deal “with subjects on which Congress could validly legislate”
(3) The resolution authorizing the investigation must specify ” a congressional interest in legislating on that subject.”
(4) Where the inquiry can result in “no valid legislation,” then the “Private affairs of individuals” are not valid targets for inquiry

Having read that, you may not better understand why the administration is saying things like this:

“I have determined that the Committee’s request lacks a legitimate legislative purpose,” Treasury Secretary Steven Mnuchin wrote in a letter to Congress on Monday, when telling lawmakers that he won’t be sharing the president’s tax returns.

Where do you think Eric Trump came up with this particular formulation?

Eric Trump then launched into a diatribe about his father’s past interest in purchasing the Buffalo Bills, which never came to fruition.

“When Congress subpoenas somebody they have to have legislative purpose, right?… What the hell is the legislative purpose of subpoenaing for records associated with possibly buying the Buffalo Bills?” he said.

Clearly, the White House lawyers did some research, and their defense against these subpoenas is that they lack a legislative purpose. That also happens to be the test for whether Congress is allowed to detain people and put them on trial.  But the way Congress can protect itself from that defense is by making sure that their subpoenas are issued “pursuant to some other constitutional power of the Congress, such as the authority of each House to discipline its own Members, judge the returns of the their elections, and to conduct impeachment proceedings.”

This was a key point I was trying to make back on April 24 when I first published on inherent contempt, but everyone seems to be catching on now. Even the discombobulated Baker/Haberman/Schmidt piece in the Times covers this:

Moreover, one of the legal arguments raised by Mr. Trump’s allies may encourage rather than discourage an impeachment effort. Defenders of the president’s decision to resist subpoenas for, say, his tax returns maintain that Congress has overreached because it has no legitimate legislative purpose to make the request.

But even they acknowledge that congressional demands for documents and testimony would have a stronger legal justification if there were an active impeachment inquiry, in which case the House would be acting more clearly within its constitutional jurisdiction.

Whether Congress wants to use its inherent contempt power to enforce its subpoenas or whether they opt to rely on a civil suit in the judicial branch, they will need to have a formal impeachment inquiry underway to have any realistic hope of having the Courts back them up.

The White House can say that they want to be thrown in that briar patch and the Democrats can say that they don’t want to fall for the trap, but they only have a choice between a formal inquiry and total capitulation.

Truthfully, the administration isn’t very clever and they’re not brilliant three-dimensional chess players. They’re blocking every Congressional inquiry because they want to stall and they want to be aggressive and they are afraid of what information will come out. They might fleetingly convince themselves that impeachment will help them politically, but that’s just a hope. It’s not a strategy.

For the Democrats, they are slowly beginning to understand what I told them three weeks ago:

On Wednesday, during a Washington Post Live event held at the news outlet’s headquarters, reporter Robert Costa asked House Speaker Nancy Pelosi (D-Calif.) whether Treasury Secretary Steven Mnuchin could be arrested for rejecting House Democrats’ request to turn over six years of tax returns for President Trump and some of his companies.

As the audience clapped, Pelosi smiled coyly and raised her palms to the audience in a reassuring manner. “Let me just say that we do have a jail down in the basement of the Capitol,” she said as everyone laughed. “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.”

In truth, they do not have a jail in the basement of the Capitol.

A spokesman for the speaker told The Post on Thursday that, if ever it came down to arresting people, Congress could detain them in one of the rooms controlled by the House sergeant at arms.

It may be a punchline for Pelosi today, but it’s not going to be funny much longer.

Mr. [Elijah] Cummings said party leaders would “look at all the tools that we have in our toolbox — even inherent contempt” — a reference to the congressional power, last used in the 1930s, to jail uncooperative witnesses.

Would he exercise that authority against Mr. Trump?

“I didn’t say that. I said we were studying,” Mr. Cummings snapped. “Don’t put words in my mouth.”

Obviously, Congress is not going to arrest the president. They’re probably not going to arrest anyone. But they are going to open an impeachment inquiry because they have no other choice.