Reporter’s Notebook: Why subpoenas and ‘contempt of Congress’ threats don’t always last

When it comes to subpoenas, Capitol Hill can be compared to a gym.

Congress has these kettlebells the size of an engine block. Stacks of 45-pound plates. Rows of 100-pound barbells. The floor is covered with thick military-grade lifting belts and chalk.

The members of the Capitol Hill Subpoena Gym pose and flex like Jack LaLanne while working out at Muscle Beach near Santa Monica Pier. After consuming a large amount of spinach, their muscles bulge and pop like Popeye’s arms.

The U.S. Capitol Building is seen on Oct. 22 in Washington, D.C. 

The U.S. Capitol Building is seen on Oct. 22 in Washington, D.C.
(Anna Moneymaker/Getty Images, File)

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And then when it comes to lawmakers actually enforcing their subpoenas, you find that these bulging congressional biceps are just a facade. Preening shows that legislators’ muscles are the result of anabolic steroids.

Congressional brawn is deceptive. When it comes to Congress subpoenas or contempt of Congress, lawmakers aren’t as powerful as they think.

The House recently voted to refer the matter to the Justice Department to bring former White House advisor Steve Bannon to trial for contempt of Congress. Democrats were happy to continue to support their foe.

“(Bannon) has clearly thumbed his nose at the legislative process,” said House Jan. 6 Committee Chairman Bennie Thompson, D-Miss., who pushed the contempt of Congress resolution. We clearly have the power to investigate and oversee investigations. It’s in the legislative branch and we intend to use that power.”

” I’m sorry Steve Bannon sits there by himself. “On the edge of branch,” stated Liz Cheney (R-Wyo), Jan. 6 Committee Vice Chairman. And it will fall apart for him.

It is up to the Justice Department whether to pursue the case. A conviction can lead to jail sentence.

Steve Bannon, former Trump political strategist, leaving federal court in New York on in Aug. 2020. Recently, the House held Bannon in contempt of Congress.

Steve Bannon, former Trump political strategist, leaving federal court in New York on in Aug. 2020. Recenty, Bannon was held in contempt by the House.
(Mark Kauzlarich/Bloomberg via Getty Images, File)

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The committee did not forge ahead with similar contempt resolutions for other Trump-era figures like former White House chief of staff Mark Meadows. He’s believed to have been cooperating with the committee in good faith about reaching an agreement regarding the requested information. Bannon, however, refused to comply with the subpoena issued by the committee as part of their inquiry into Capitol riot. Bannon invoked the executive privilege shield, even though he was only in Trump’s administration for a short time. He had long since left when the January riot struck.

” Whether it is an executive branch member or a former adviser, the President can claim privileges that will stop the process moving forward,” Sarah Binder from the Brookings Institution said. It can take several months, if not years for the process to unfold after one party loses control.

The House approved sending the Contempt of Congress Resolution to the Justice Department to be used for criminal prosecution.

This is also a proxy battle. When it comes to the enforcement of a subpoena, Congress cannot do all its dirty work. This responsibility must be transferred to the executive branch in order for it to be enforced. We have an administration we feel will listen to our process.” Thompson said.

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Attorney General Merrick Garland at a Justice Department event.

Merrick Garland, Attorney General of the Justice Department at an event.
( Anna Moneymaker/Getty Images, File)

Attorney General Merrick Garland was far from committal about taking Bannon to court when pressed by Rep. Eric Swalwell, D-Calif., at a recent House Judiciary Committee hearing.

“If Congress votes to refer criminal contempt matters to the Department, we will examine and act in accordance with the law and facts required by the principle of prosecution,” Garland replied to Swalwell.

Granted, a Democratic administration probably looks a little more favorably on a contempt of Congress resolution for Steve Bannon compared to ones sent over by House Republicans during President Obama’s administration.

In 2014, the House voted to hold former IRS figure Lois Lerner in contempt of Congress over refusing to testify. The House held former Attorney General Eric Holder in contempt of Congress in 2012.

It was clear that Holder didn’t intend to conduct his own DOJ investigation on the bogus charge made by House Republicans.

During the administration of President George W. Bush, a Democratic House voted to hold then White House chief of staff Josh Bolten and White House Counsel Harriet Miers in contempt of Congress in 2007 over the firing of U.S. attorneys. House Republicans protested the outcome of the roll-call vote and stormed the floor.

The issue made its way to the courts. The fight was deemed a political issue by the courts.

In other words, the legislature was having a disagreement with the executive branch. They wanted the judicial branches to resolve the matter. It’s no wonder that contempt of Congress has become so difficult to enforce.

By the way, the House finally worked out a deal to hear from Miers and former Bush aide Karl Rove – but in early 2009 – months after the end of the Bush administration.

Ironically, even a successful prosecution wouldn’t necessarily yield the information the committee wants.

However, there may be a way for Congress to truly bring a little more muscle to subpoenas.

This concept is called “inherent disobedience.” As an institution, Congress uses its “inherent” power to detain and keep an uncooperative subject. It is possible that the Senate or the House could send a Sergeant at Arms in order to apprehend the subject.

House Speaker Nancy Pelosi, D-Calif., suggested in 2019 that the Capitol had a “jail” in the basement where the House could hold members of the Trump administration who lawmakers voted to hold in contempt. What Pelosi is referring to is a tiny, subterranean alcove which looks like a jail. This is the place where George Washington was originally buried. Washington’s crypt is located at Mount Vernon. The old Washington “crypt”, now blocked by a foreboding, iron gate, is secured with a padlock.

Fox searched to see if Congress had ever “arrested” anyone in this space. No record exists of such Capitol detention.

” “There isn’t a lot stomach in Congress to actually send out the Sergeant of Arms to arrest Bannon and bring him to Congress to throw him in prison,” Binder said. Binder asked, “Where would he be?”

That said, Congress used to periodically enforce its own version of contempt in the late 18th and 19th centuries. The incipient Congress was often a target of newspaper editors and publishers.

Lawmakers haven’t relied on inherent contempt since 1934. This is when Congress voted to impeach Assistant Secretary of Commerce William McCracken. McCracken was not cooperating in a probe into an airmail scandal. McCracken was not held at the Capitol, but instead at the Willard Hotel downtown Washington.

This is ironic since Democrats have now asked Bannon and Trump associates questions about using the Willard to operate as an operation center before the January riot.

” You can’t just ignore the United States Congress and pretend you can get away with anything,” Rep. Jamie Raskin (D-Md.) said about Bannon’s defiance. “Congressional subpoenas can be very difficult medicine.”

Not really.

Unless legislators eventually take the path of inborn contempt.

But there are also problems. Separation of powers could be triggered by inherent contempt.

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“Past episodes suggest that there’s really, very little teeth if you want to contest what Congress is trying to do,” said Binder.

But when it comes down to subpoenas lawmakers are willing to show off their muscle and show their teeth – even though they don’t have the clout.

By editor