Recent news reports from NBC News, Reuters, Axios, HuffPost, The Hill, and other media outlets confirm that the modified inherent contempt enforcement proposal recommended by Good Government Now (GGN) is continuing to gain traction on Capitol Hill and is being seriously considered by senior House leadership.
Rep. Adam Schiff, Chairman of the House Intelligence Committee, became the third House committee chairman identified in news reports to be seriously considering GGN’s recommendation to impose heavy personal fines on executive branch officials who defy congressional subpoenas. Previous reports and statements have indicated that Judiciary Committee Chairman Jerrold Nadler and Oversight and Reform Committee Chairman Elijah Cummings are also considering the inherent contempt fines featured in GGN’s proposal.
Schiff told an audience at an event sponsored by Axios Friday that he thought fines were a more practical approach to dealing with recalcitrant executive branch officials. He said, “I think it’s far more practical to consider levying individual fines on the person — not the office — until they comply. You could fine someone $25,000 a day until they comply. You can do that. We’re looking through the history and studying the law to make sure we’re on solid ground.”
House Judiciary Committee Chairman Jerrold Nadler was the first senior House Democrat identified in media reports to be considering modified inherent contempt based on fines as recommended by GGN. Bloomberg News reported on April 24th that Nadler “suggested fining officials personally if they deny or ignore subpoenas” at a meeting of House leaders earlier in the month.
The following week, House Oversight and Reform Committee Chairman Elijah Cummings became the second committee chair to indicate that he was seriously considering modified inherent contempt with fines as reported by HuffPost and Newsweek among other outlets. According to Newsweek, Cummings threated “to hold a former White House official in contempt of Congress, punishable by fines and jail time, if he fails to comply with a subpoena” issued by the Committee. Cummings said, “It may be we just want to go with fines. But it’s either fines and/or prison.”
Good Government Now has proposed a modified inherent contempt procedure that relies on heavy personal fines as the principal sanction on recalcitrant witnesses rather than the penalties of arrest and detention customarily employed in historical inherent contempt proceedings.
GGN’s proposal calls for $25,000 daily fines for subpoena non-compliance for up to 10 days and caps the maximum fine at $250,000. The proposal, authored by GGN Senior Fellow Mort Rosenberg, would also authorize the House to directly appoint a private attorney to criminally prosecute persistently recalcitrant witnesses if the inherent contempt fines are insufficient to motivate them to honor the subpoena. This independent prosecution provision is especially important given the refusal since 2007 of DOJ to enforce the criminal contempt statute against executive branch officials asserting executive privilege on instructions from the President.