Carl Levin is a Michigan Democrat who spent 35 years in the United States Senate, serving through the tenures of six American presidents. As someone thoroughly acclimated to service in both majorities and minorities in the Senate, it is probably safe to say that he is familiar with the minutiae of the powers and procedures available to that body. On May 7 he published an opinion piece in The New York Times urging the House of Representatives, if necessary, to exercise one power that is available to both chambers of Congress: the power to hold those who disobey the legislature’s lawful orders (in the form of constitutionally authorized subpoenas) in contempt of Congress, and specifically the power to find them in “inherent contempt” and jail them.
Levin first recounts the Trump administration's now-routine refusal to honor lawfully issued congressional subpoenas and requests, most recently exemplified by the White House's refusals to release the full unredacted Mueller report; to permit testimony from the special counsel himself regarding the true findings of his investigation into Trump’s and his family’s relationship to the Russian Federation; and to respond to calls for the mandatory disclosure of Trump’s income taxes.
The broad sweep of these efforts threatens the country’s history of accommodation between the two branches and the checks and balances that are the cornerstone of our democracy.
Congress is vested by the Constitution with oversight of the executive branch. The Supreme Court, moreover, has been explicit that Congress has broad power to seek information connected to a “legislative function” and to enforce its demands through its inherent contempt authority. This can include imprisoning someone who declines to comply with a subpoena.
It's important to recall the derivation of the word "contempt" to grasp how applicable it is to this situation. Strictly speaking, “contempt” is the offense of being disobedient or disrespectful to a court of law (or here, to a legislative body) by refusing to follow its orders or adhere to its procedures. In a more colloquial sense, “contempt" connotes a willful, heedless disregard of something or someone, often as a deliberate affront to their dignity or existence.
Legally, then, as well as colloquially, to be found "in contempt" is to have exhibited contemptuous behavior. In this case, by their refusal to comply with its lawful requests, Donald Trump and his lackeys have shown themselves to be contemptuous of the Congress, and by extension they have shown themselves to be contemptuous of the American people who elected that Congress to serve in their interests.
There is no question that the congressional inquiries at issue here serve a legitimate legislative purpose, particularly in light of the gravity of potential crimes committed. As Levin explains,
The White House is fighting appropriate and justifiable requests by House committees for, among other things, the president’s tax returns and information about how security clearances were granted. Individuals connected to the president are fighting requests for information relating to the Trump campaign and the disclosure by WikiLeaks of emails from the Democratic National Committee and the Clinton campaign. All of these requests serve legitimate legislative purposes: to determine, one, whether the I.R.S. is following a longstanding policy of auditing a president’s tax returns; two, how security clearances are granted; and three, whether federal law adequately addresses computer hacking.
The Constitution provides the Congress with multiple tools to address this contemptuous behavior toward our institutions. One is seeking court intervention, specifically a finding that a person is in contempt and must either comply or face punishment. The other primary means is Congress’ power of “inherent contempt,” which permits it to arrest those who disobey its lawful orders and hold them until they comply.
It allows Congress to use its constitutional authority to detain and imprison a person found in contempt until that individual complies with a congressional demand or that particular Congress comes to an end.
It may be rusty, and it’s not something anyone welcomes, but President Trump’s extreme responses to legitimate congressional requests may very well demand strong measures by Congress. To protect its constitutional authority and carry out its constitutional responsibility to the American people, it should not hesitate to use its inherent contempt power if needed.
Congress last used its inherent contempt power in 1935, a fact that has been repeatedly emphasized to the point of tedium, as if that somehow disqualifies its use. The simple rejoinder to that is that no administration in history has exhibited such willful disregard—literal contempt—of the people’s House of Representatives or the rule of law that it represents.
In an essay published in The Atlantic, Russell Berman elaborates on the procedure.
They can direct their respective sergeant at arms to arrest officials they’ve found to be in contempt and bring them to the Capitol for trial and, potentially, jail.
The Judiciary Committee on Wednesday approved a resolution to hold Attorney General William Barr in contempt of Congress. After the entire House votes on the resolution (presumably on party lines, since the entire Republican Party seems in thrall to Donald Trump’s abuse of power, as long as they are not the ones being abused), as Berman explains, Congress will then have three options.
They could refer the matter to the U.S. attorney in Washington, D.C., who would decide whether to launch a criminal prosecution of his own boss, the attorney general. Democrats could turn to the courts to enforce the subpoena. Or they could take matters into their own hands and call their sergeant at arms. Raskin himself brought up the arrest option when I asked him how far this confrontation could go, even as he acknowledged that not many members of the House were aware of that particular congressional power, much less supported its use.
Berman interviewed Jamie Raskin, a second-term Democratic representative from Maryland who sits on the House Judiciary Committee, regarding that body’s willingness to use its power of inherent contempt.
Berman: If it got to that point, do you think the House would have the attorney general arrested by the sergeant at arms?
Raskin: Well, the vast majority of the Judiciary Committee, much less the House itself, are just not aware of this process. So it’s just premature to be talking about it. But, you know, its day in the sun is coming. We will educate people about the power of the House to do it. The executive branch is acting in categorical bad-faith contempt of Congress. This is not like a dispute over one document or the timing of the arrival of a particular witness. This is the president of the United States ordering the executive branch not to comply with the lawful requests of Congress.
The Supreme Court has emphasized that Congress has the power of inquiry and investigation. This is essential to our lawmaking function. We have a responsibility to research how the current laws are working and what conditions are that might require legislative changes. We also have a specific power, the Supreme Court has emphasized, to investigate corruption, self-dealing, fraud, waste, and abuse in the executive branch of government. So, you know, this is not some peripheral schoolyard skirmish. This goes right to the heart of our ability to do our work as Congress of the United States.
Some have raised the point that the House no longer has a functioning jail in which to hold those such as Barr, McGahn, and Mnuchin who may be found in contempt. The short answer to this dilemma, of course, is to designate one.
Capitol Police officers from multiple divisions told CQ Roll Call that no House jail exists, though Capitol Police headquarters on D Street NE does have a holding facility.
Others have suggested a guarded hotel room would be adequate to the task, provided it contained appropriate surveillance mechanisms, a toilet, and a shower. Of course, the procedure would have to be humane, as befitting any other incarcerated criminal in this country.
Some have also pointed out that employing such a procedure might lead to an unpleasant confrontation between the sergeant-at-arms of the House, who would be tasked with making the arrest, and any personnel (presumably military or Secret Service) that the executive branch might dispatch to attempt its prevention.
This would be a highly undesirable result. But that is where Donald Trump has taken us.
“A president who refuses to respond to congressional oversight is taking the presidency to new levels of danger,” said William P. Marshall, a law professor at the University of North Carolina. “We’re supposed to be in a system of checks and balances, and one of the biggest checks that Congress has over the executive is the power of congressional oversight.”
“Not responding to that is to literally say that you’re above the law and you’re above the Constitution,” he said. “There’s nothing in history that comes even close to that.”
So here we are.