by Dr. William J. Murphy and Morton Rosenberg
The Hill – March 4, 2020 – The effectiveness of congressional subpoena power, already severely damaged over the past 15 years, has plummeted to a dangerous new historical low after a relentless and successful scheme of obstruction by the Trump administration during the House impeachment inquiry and last week’s devastating D.C. Circuit Court ruling that Congress lacks standing to seek judicial enforcement of subpoenas in federal court.
The White House, four executive branch departments, and nine current or former administration officials refused to comply with subpoenas upon instruction from the president throughout the impeachment process. Dozens of other administration officials and associates defied subpoenas at the direction of the White House prior to impeachment. A total of at least 82 congressional information requests, including 42 subpoenas of executive branch personnel and their associates, have been obstructed by the Trump administration.
The root cause of these enforcement problems is the loss by the House of a credible threat of personal punishment for executive branch officials who fail to comply with legislative subpoenas. This deficiency has developed primarily as the consequence of the House’s acceptance of a decades-long executive branch campaign to subvert the use of Congress’ two most powerful, successful and constitutionally recognized enforcement methods: The inviolable institutional self-protective mechanisms of inherent and criminal contempt. The House has allowed the executive branch to force it into dependence on the civil enforcement process, which entails filing lawsuits to obtain compliance orders and is slow, ineffective and vulnerable to aberrant court rulings. This congressional abdication of its constitutional responsibility and authority to such fundamental executive branch encroachments is unacceptable.
But the House possesses the authority to repair this damage to its subpoena power. By either simple resolution or amendment of its rules, it can diversify its enforcement arsenal by adding two powerful new options that would re-establish a credible threat of personal punishment for executive branch officials who defy subpoenas and reclaim its historically most effective inherent and criminal contempt enforcement powers. It should use this authority to establish a modified version of the historical inherent contempt procedure that would enable it unilaterally to conduct trials of, convict and directly penalize executive branch officials who defy subpoenas with heavy personal fines ranging from $25,000 to $250,000.
The House should also reinforce inherent contempt fines with a provision enabling it to authorize the speaker to appoint an attorney to institute a criminal prosecution that may result in imprisonment of persistently recalcitrant executive branch officials for whom fines alone may be insufficient to compel compliance with a subpoena. Neither of these punishments is subject to the presidential pardon power.