Update: On February 28, 2020, a DC federal appellate court has refused to enforce a Congressional subpoena against Don McGahn, citing Congress’ more than adequate powers to enforce its decisions against a recalcitrant Executive without embroiling the Federal Judicary in such a fight. As this article lays out, the decision shouldn’t be a surprise.
In the oversight battle between the President and the House, the President seems to be winning. He is fighting in the courts, appealing lost decisions and expecting the Supreme Court to ultimately support his assertion of virtually unlimited executive power. Speaker Pelosi and the House chairmen continue to litigate but is there more than can be done?
According to the Supreme Court, the House (and the Senate) have the power to arrest and imprison those who are refusing to comply with Congressional subpoenas. As announced in Wilkinson v. US (1934), a Congressional committee must meet three requirements for its subpoenas to be “legally sufficient” to justify Congressional imprisonment. First, the committee’s investigation of the broad subject area must be authorized by its chamber; second, the investigation must pursue “a valid legislative purpose” but does not need to involve legislation and does not need to specify the ultimate intent of Congress; and third, the specific inquiries must be pertinent to the subject matter area that has been authorized for investigation. (See Wikipedia on “Contempt of Congress”.)
The arrest process is actually quite straight-forward. Following a contempt citation, the person cited is arrested by the Sergeant-At-Arms for the House (a person answerable the Speaker) or the Senate, brought to the floor of the chamber, held to answer charges by the presiding officer, and then subjected to punishment as the chamber may dictate (usually imprisonment for punishment, imprisonment for coercion, or release from the contempt citation). This was the basis of AG Barr’s joke asking Speaker Pelosi if she was going to have him arrested. Obviously, her doing so was beyond his imagination.
AG Barr’s imagination is sadly distorted by his understanding of American history. He asserts that the separation of powers insulates the Executive against any influence from, or conflict with, the other branches of government. According to him…