The post After McGahn ruling, Dems aim to resurrect ‘inherent contempt’ procedure to compel witness testimony appeared first on Virus Reports.
]]>A group of House Democrats called for the chamber to resurrect its rarely used “inherent contempt” power on Monday after a federal appeals court dismissed a lawsuit by the House Judiciary Committee to enforce a subpoena against former White House Counsel Don McGahn.
The committee was seeking testimony from McGahn on President Trump, and the full D.C. Circuit Court of Appeals had previously ruled that the House could sue to enforce the subpoena, but that McGahn should have the opportunity to argue that it was too broad. A three-judge panel on Monday agreed, upsetting Democrats, including House Speaker Nancy Pelosi, D-Calif., who said it was “a challenge to our system of checks & balances, and is at odds with Supreme Court precedent.”
Pelosi said the House would again seek a hearing with the full appeals court, but several other House Democrats called on the chamber to bring back its “inherent contempt” power that allows the House to unilaterally enforce its subpoenas, which it previously did by dispatching the House Sergeant at Arms to arrest figures until they provided their testimony to Congress. These Democrats, led by Rep. Ted Lieu, D-Calif., propose that the House instead levy fines against uncooperative witnesses.
FEDERAL APPEALS COURT DISMISSES LAWSUIT TO ENFORCE MCGAHN SUBPOENA
“[T]his protracted legal battle over subpoena enforcement tells us that the House needs to create procedures to enforce subpoenas itself,’ Lieu said in a statement. “The Supreme Court already has said that Congress has that power through inherent contempt. It’s well past time to use it. The House needs to pass our inherent contempt resolution, which enables the House to levy penalties directly against those refusing to comply with congressional subpoenas.”
Lieu added: “This can be done without needing the approval of either the Senate or the Executive Branch.”
He was joined Monday by Reps. Val Demings, D-Fla., David Cicilline, D-R.I., Jamie Raskin, D-Md., and Joe Neguse, D-Colo.
Inherent contempt used to be a relatively common power for Congress to exercise but has not been used in 90 years. Its standard practice was for the House or Senate to send their respective Sergeants at Arms to “arrest” someone who is refusing to provide testimony and hold them until they did so. The last time it was used was against Assistant Secretary of Commerce William MacCracken, who was held at the Willard Hotel in Washington, D.C., for 10 days.
In this Sept. 27, 2018, file photo, White House counsel Don McGahn listens as Supreme court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee on Capitol Hill in Washington. A federal appeals court Monday threw out a lawsuit to compel McGahn to testify before the House Judiciary Committee. (Saul Loeb/Pool Photo via AP, File)
Lieu led the introduction of a resolution to change the rules of the House in late June which would provide procedures for the House to negotiate with witnesses who are not cooperating with subpoenas. But if no deal can be made the chamber would be able to levy a fine of $25,000 against the person being held in inherent contempt. That total could be increased in $25,000 increments if the person doesn’t cooperate with the subpoena within 20 days, with a maximum penalty of $100,000.
Congress has relied on two other forms of contempt in recent years, most commonly civil contempt, where the body relies on courts to enforce subpoenas. It has also used criminal contempt, which asks the Department of Justice (DOJ) to prosecute the case. But with a Trump administration that has cooperated very little with Congress in charge of the DOJ and fighting tooth-and-nail in the courts, these House Democrats are seeking to use their inherent contempt power as a third, more direct option.
“Congress must do more to enforce our lawfully issued subpoenas,” Cicilline said. “The inherent contempt power was used for decades to ensure no individual could hold themselves above the law. Given this President’s clear disdain for Congress’ ability to conduct oversight on behalf of the American people, it is time to reinvigorate this power to hold him and any future administrations accountable.”
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Monetary fines have not been used in inherent contempt cases before, according to the Congressional Research Service (CRS), but have been suggested as a way to prevent an “unseemly” standoff between Congress and the Executive Branch if the legislature were to effectively imprison a previous or even current executive official.
But the CRS noted that because Congress has not imposed a fine in an inherent contempt case before, it is an “open question” whether that approach is legal and it may be challenged in the courts.
The appeals court Monday said that the House had no cause of action to enforce its subpoena against McGahn. The Trump administration has also asserted it has broad “absolute testimonial immunity” to block current and former administration officials like McGahn from speaking with Congress, but the appeals court panel did not address that argument Monday as it ruled solely on the lack of cause for action.
Fox News’ Chad Pergram, Bill Mears and Evie Fordham contributed to this report.
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]]>The post Don McGahn can be subpoenaed by House Democrats, federal appeals court rules appeared first on Virus Reports.
]]>The full federal appeals court in Washington, D.C., ruled Friday that House Democrats have the authority to subpoena former White House Counsel Don McGahn.
In a 7-2 ruling, the court reasoned the House of Representatives would suffer a concrete injury in not conducting its oversight duties if the chamber cannot exercise its subpoena power.
“The Constitution charges Congress with certain responsibilities, including to legislate, to conduct oversight of the federal government, and, when necessary, to impeach and remove a president,” wrote Judge Judith Rogers, a Clinton appointee who authored the majority opinion.
The court said Congress‘ request for Mr. McGahn to testify in 2019 ahead of its impeachment hearings fell under the Constitution’s power to impeach, which is delegated to lawmakers.
House Democrats moved to have the president’s former White House counsel testify following the release of former special counsel Robert Mueller’s report about the feds probe into election interference during the 2016 election and alleged conspiracy between the Trump campaign and Russian officials. Though the report detailed election interference by foreigners, it did not incriminate Mr. Trump.
Judge Rogers noted the special counsel’s report suggested Congress has the ability to impeach the president if lawmakers believed a crime had been committed, reasoning they would need to be able to subpoena Mr. McGahn to inquire about potential criminal activity.
Despite not having Mr. McGahn’s testimony, the House did impeach the president last year, but he was acquitted earlier this year by the Senate.
The ruling could revive impeachment inquiries by House Democrats into Mr. Trump.
The president, though, could also appeal the ruling to the high court.
Liberals cheered the federal court’s ruling as a victory for government oversight and transparency.
Elizabeth Wyda, president of the Constitutional Accountability Center, said there are still issues in the case that need to be worked out, and she urged the lower court to move quickly as the November election is fast approaching.
“Given that this session of Congress is rapidly coming to a close, time is of the essence,” she said.
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