The Atlantic article is titled The Rarely Used Congressional Power That Could Force William Barr’s Hand, but I prefer the title on the browser tab, “House Democrats Could Arrest William Barr for Contempt.” Yes, they could. It hasn’t been used in almost a century, according to this erudite brief prepared for the Congressional Research Service (PDF alert), when in 1927, the House sent the Deputy Sergeant at Arms to arrest the brother of the then-Attorney General for refusing to testify before the chamber. In 2007, the New York Times wrote:
In 1821, the Supreme Court upheld Congress’s right to hold people in contempt and imprison them. Without this power, the court ruled, Congress would “be exposed to every indignity and interruption, that rudeness, caprice, or even conspiracy, may mediate against it.” Later, in a 1927 case arising from the Teapot Dome scandal, the court upheld the Senate’s arrest of the brother of a former attorney general — carried out in Ohio by the deputy sergeant at arms — for ignoring a subpoena to testify. … “The individual is brought before the House or Senate by the sergeant at arms, tried at the bar of the body, and can be imprisoned in the Capitol jail.” Congress can do this, [a 2007 CRS] report concluded, to compel them to testify or to punish them for their refusal to do so.
So it can be done. Should it be done? In my opinion, absolutely.
Atlantic staff writer Russell Berman interviewed Rep. Jamie Raskin (D-MD), a former Constitutional law professor (this is important), on the subject. The whole article is definitely worth reading, but I’ll drop some tasty bits in to highlight Raskin’s view. TL;DR version: the House Democrats should keep moving forward, not allow the Republicans to try to stampede them into prematurely pursuing impeachment (in other words, not metaphorically sailing gloriously off the cliff into the void of the Grand Canyon and the not-glorious splatter on the canyon floor below); and gather the evidence necessary for any proceedings — including impeachment — to weather both court challenges and the Senate impeachment process itself.
Raskin points out that the contempt citation against Barr (and, presumably, the upcoming ones against McGahn and a plethora of other non-cooperating witnesses) is only one step. As we know, the Republicans’ bullshit contempt finding against Eric Holder didn’t slow the Obama administration down a bit; for them, it was just Kabuki theater to please the yawping idiots of their base. So what next?
Raskin notes that the House could refer Barr to the US Attorney for Washington, DC. Good luck with convincing Jessie Liu, as solid a prosecutor as she is, to pursue charges against her boss. The House could also take Barr to court, which is considered by mainstream thinkers the most likely avenue. Raskin then notes, without being prompted by Berman, that the House has the power of “inherent contempt,” which basically means sending someone — the Sergeant of Arms, the Capitol Police, or whoever they deputize for the job — to drag Barr’s flabby ass out of the Justice Department and throw him into a cell. Raskin:
Just as a court can enforce its orders, Congress can enforce its orders. And in the 19th century, Congress had the sergeant at arms arrest and detain people until they complied with lawful orders of Congress. And we would have the power to fine people who were out of compliance with the law. So that provides another avenue. … [T]he 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.
I like this idea. Educating the members of Congress, and the public itself, about the inherent power of the House to jail the fuck out of someone who defies their subpoenas.
Berman asks a savvy question: isn’t it a risk to allow a case like this to go to court (whether or not Barr gets to spend some time in the hoosegow) and risk a judicial ruling going against them: in fact, setting
a new precedent for executive authority? That he could end up not only skirting oversight himself, but that, through court rulings, it could end up that the presidency itself winds up with more power?
Raskin isn’t stupid. He knows McConnell and the Senate Republicans are packing the courts with mouth-breathing ideologues as fast as they can.
Well, it’s definitely been suggested by a number of people that the president has succeeded in packing the courts, including the Supreme Court, to the point that they essentially are part of the White House political operation. I hope that this is not the case.
Someone else did the Supreme Court math in another diary: Kavanaugh, Alito, Gorsuch and Thomas would rule in favor of Trump or a Trump minion if he was caught on video chowing down on a dead body in the DC morgue. That leaves Roberts as the swing vote, and yeah, I don’t trust him, either.
So, Jamie, you Constitutional scholar you, why aren’t you and your committee getting off your “weak, spineless” asses and impeaching the orange Nazi shitbag right now? Huh? Come on, show the world you got a pair on ya.
The president essentially is trying to pull a curtain over the executive branch of government, and to systematically thwart and defy the will of Congress. The word on the street is that they are begging for an impeachment, and they think this is the proper way to get it. And I just want to say about that: If we are going to impeach the president, we are going to do it on our own schedule and at our own pace. We are not going to be pulled into it just by a series of provocations from the president.
In our last two Judiciary meetings, I counted Republicans invoking impeachment a dozen times. If they are so eager for impeachment and they think the time is right, they should go ahead and introduce impeachment articles on their own. Otherwise, they’re going to have to trust our strategic and constitutional judgments.
If they are so eager for impeachment and they think the time is right, they should go ahead and introduce impeachment articles on their own. Otherwise, they’re going to have to trust our strategic and constitutional judgments. Yes! THIS is how you answer back.
Impeachment is like a sniper shot at a very, very high-value target (full disclosure: pretty much everything I know about the art and craft of “snipering” comes from reading novels and watching fine educational television like NCIS: Los Angeles). You have to set it up just right. Study the target. Learn its properties. Study the venue. Pick your location. Set up your shot. You only get one. And, oh, look. Someone who knows more about it than I do agrees:
Being a sniper comes with a tremendous amount of responsibility. What command is looking for is a soldier that possesses good decision making and a level head.
“Good decision making.” “Level head.” That describes Pelosi, Nadler, Schiff, Cummings, Swalwell, Lieu, Rankin and the other House Democrats carefully and deliberately steering course towards the almost-certain impeachment of Donald Trump.
Or we can always do this:
“What are you waiting for? Just impeach his ass! Impeach! Now! Use the word! Call the vote! Now now now now now!”
Absolutely not. That would be a “failure to launch” in a politically catastrophic sense.
Anyone who’s been paying attention to what I write in folks’ diaries knows I’ve been mocking the shit out of the “Impeach him NOW goddammit!” crowd. My current metaphor of choice is comparing them to impatient kids kicking the back of Aunt Nancy’s seat while they’re driving somewhere. I like that metaphor. It fits with the Thelma and Louise bit I used for this diary. But I’ll get tired of it soon enough and come up with something else.
Sidebar for the “impeach him now, you cowards!” crowd. Here’s a bit of questioning we could hear from John Roberts during the Senate impeachment trial:
Roberts: Did you come to this conclusion to impeach the president after reading the full Mueller Report?
Dems: Um, no, they wouldn’t give us the report.
Roberts: I see. So, you came to this conclusion after interviewing [long list of Trump administration officials]?
Dems: No, they wouldn’t let us talk to them. And they ignored our subpoenas.
Roberts: So, did you go to court to compel their obedience to the subpoenas?
Dems: No. We decided to impeach him based on what we already have.
Roberts: I see.
The Senate votes, impeachment is denied, and we look like the worst kind of assholes.
I realize that Aunt Nancy and Uncle Steny, the uncle no one wants to visit because of that giant stick up his ass, have said they wouldn’t consider impeachment. Hoyer has since walked it back and shut his gob about it. Pelosi is talking about Trump’s “self-impeachment,” thank all the gods and flying spaghetti monsters:
Every single day, whether it’s obstruction, obstruction, obstruction — obstruction of having people come to the table with facts, ignoring subpoenas, every single day, the president is making a case — he’s becoming self-impeachable, in terms of some of the things that he is doing
Yes, Aunt Nancy knows there’s no such thing as self-impeachment. She knows the car won’t drive itself. She’s laying the groundwork, as Mark Sumner’s excellent diary from today lays out.
I’ll end with another Raskin quote:
[W]e live in a time where nothing is normal. Let’s hope for the best, be prepared for the worst, and go fight like hell for the Constitution.
That’s what I want to hear — and see — from our Democratic leaders. Fight like hell for the Constitution. As long as the Dems are moving forward forthrightly and deliberately, I’m supporting the hell out of them. You might consider doing that as well, maybe with emails, phone calls, Tweets, and so forth.
And you kids quit kicking the back of Aunt Nancy’s seat. She can’t drive any faster and get where we need to go.