Washington, DC – June 8, 2021
*Appearance of McGahn more than two years after subpoena not a victory
*McGahn case confirms ineffectiveness of civil enforcement
*Congress continues to undermine its own authority with civil enforcement
*Exclusive focus on improving civil enforcement process is a mistake
*House should adopt Rep. Lieu’s inherent contempt fines proposal to fix subpoena enforcement
Washington, DC – June 8, 2021 – Advocacy group Good Government Now (GGN) called on the House to adopt the inherent contempt fines procedure proposed by Rep. Ted Lieu (D-CA) in response to the unacceptably late appearance of former White House Counsel Don McGahn before the Judiciary Committee Friday more than two years after a committee subpoena issued on April 22, 2019.
H. Res. 406, The Congressional Inherent Contempt Resolution, would amend House rules to establish an inherent contempt enforcement process whereby the House could conduct trials of, convict, and directly sanction executive branch officials and others who defy congressional subpoenas with personal fines of up to $100,000. The measure, sponsored by Rep. Lieu and supported by fourteen co-sponsors, was introduced in the House on May 17th.
Adoption of H. Res. 406 is necessary to repair the damage to congressional subpoena enforcement power that has resulted from decades of deliberate executive branch subversion of legislative authority as well as abdication by Congress of its constitutional responsibility to preserve its inherent enforcement powers while legislating and conducting oversight effectively.
The root cause of the decline in congressional subpoena enforcement capability has been the loss by Congress of a credible threat of personal punishment for those who defy legislative subpoenas. The emergence of this situation is no accident. The executive branch has waged a concerted, decades-long campaign to deny Congress the ability to impose meaningful sanctions through its two most powerful enforcement methods, the inherent and criminal contempt procedures, and instead force Congress to use the inferior civil enforcement process which does not entail any credible threat of personal punishment for uncooperative witnesses and inevitably deteriorates into prolonged, inconclusive litigation.
H. Res. 406 directly and effectively addresses this root cause of declining legislative enforcement authority by restoring a credible threat of significant personal punishment for those who defy congressional subpoenas. In addition, the proposal modernizes and reasserts the inherent contempt power, Congress’ historically most effective subpoena enforcement mechanism, and would break the cycle of dysfunctional reliance on the failed civil enforcement process.
By contrast, the very decision by Congress to pursue civil enforcement in the McGahn case represents yet another instance of surrender to the executive branch campaign to deny it access to its most potent enforcement tools. The McGahn experience also confirms that civil enforcement suffers from several deficiencies that render it unsuitable for achieving prompt and effective oversight actions and preserving congressional authority against executive encroachment including: (1) allowing the executive branch to deny it access to its historically most effective enforcement methods, (2) failing to establish a credible threat of significant personal penalties for noncompliant witnesses, (3) forfeiting to the courts its absolute authority to make initial rulings on all claims of executive privilege, (4) subjecting itself to the delays of prolonged civil litigation, and (5) risking adverse judicial decisions further subversive of legislative enforcement authority concerning questions upon which it prevailed in earlier cases.
The inherent contempt proposal introduced by Rep. Lieu and his co-sponsors offers a promising solution to these problems by providing for significant fines for contempt of Congress imposed in an expeditious procedure that would fully assert the authority of committees to rule on all executive branch objections to their information demands as well as establish summary floor trials to quickly convict and penalize government officials and others who defy subpoenas.
Given the historical crisis of legislative authority, this proposal is worthy of bipartisan support in the House. In fact, both parties in both chambers should support the establishment of inherent contempt fines procedures.
Bill Murphy is available for interviews and comments at
(610) 529-6494 or wmurphy@goodgovernmentnow.org
GGN personnel may be quoted as indicated in this release
