by Dr. William J. Murphy
FedSoc Blog, January 8, 2020
Although the U.S. House technically prevailed in its lawsuit to enforce a subpoena of former White House Counsel Don McGahn, the victory is a Pyrrhic one at best, doing more harm than good. Congress has again allowed the executive branch to deny it access to its most effective subpoena enforcement methods, forfeited its ultimate authority to decide contempts to the courts, subjected itself to the delays of prolonged civil litigation, and risked adverse judicial decisions further erosive of its authority without gaining anything other than affirmations of previous judicial findings. Even worse, the ruling will not solve the problem of compelling Mr. McGahn to testify, and will instead result in prolonged appeals likely to consume most, if not all, of the remaining legislative session. These deficiencies showcase once again the need for Congress to strengthen and diversify its enforcement arsenal by reviving inherent and criminal contempt.
To begin with, the very decision of the House to attempt to enforce the McGahn subpoena by filing a civil lawsuit represents another congressional surrender to the executive branch in the long-running DOJ campaign to deny Congress the ability to employ its constitutionally recognized and historically two most effective subpoena enforcement methods, the inherent and criminal contempt procedures, and instead forces it to rely on the inferior civil enforcement process.
Inherent and criminal contempt have produced superior results historically because they credibly threaten executive branch officials who defy subpoenas with severe personal punishment including fines and imprisonment. Civil enforcement has proven a weak alternative because it fails to confront defiant witnesses with any such credible threat of significant personal punishment. The inevitable result is that Congress has encountered more resistance and obstruction the more it relies on this method. When Congress goes to court to enforce subpoenas, it is not getting tough with the executive branch. Rather, it is acquiescing to executive branch encroachments that shut down its best enforcement options.