Justice delayed is public accountability denied

Former President Trump sued to block the National Archives from releasing records requested by a congressional panel that would shed light on his activities before and during the Jan. 6 attack on the U.S. Capitol. Last week, congressional investigators won a preliminary victory when a federal judge ruled that the incumbent president’s decision to produce the records to Congress outweighs a former president’s claim of executive privilege. Trump’s lawyers have already filed an appeal, and there is no telling how long the D.C. Circuit Court of Appeals will take to rule on the matter or, following an appeal of that decision, when the Supreme Court will issue a final ruling in the case.

And that’s the point. President Trump spent four years blocking congressional attempts to conduct oversight of his administration by using the courts to stall congressional requests for information. By filing multiple federal lawsuits, he sidestepped interbranch checks and balances and ran out the clock on accountability and transparency.

He’s trying the same tactic as an ex-president, and while his legal team’s arguments this time are even weaker than those employed during his term in office, there is every reason to fear that the result will be the same — a lengthy judicial process that, if it ever yields a conclusive result, does so too late to provide public accountability or check an abuse of power. Enabling a sitting or former president to thumb his nose at congressional requests for information runs counter to how the Supreme Court has interpreted Congress’ oversight powers for nearly a century.

In its seminal 1927 McGain v. Daughtry opinion, the Supreme Court affirmed Congress’ “power of inquiry” and its authority to compel information and witnesses. “Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete, so some means of compulsion are essential to obtain what is needed.” But the last few years have stripped bare how weak Congress is when trying to command information from a president disdainful of the Constitution’s system of checks and balances.

The Trump administration was not the first and it will not be the last to undermine checks and balances by relying on the courts to slow-walk congressional subpoena enforcement. The successful stonewalling of Congress by presidents from both parties reveals that the threat of civil enforcement — as it currently operates in our courts — no longer spurs executive branch officials to accommodate congressional information requests.

Last month, the House voted to hold Trump advisor Steve Bannon in criminal contempt for refusing to respond to its subpoena for information about his interactions with the White House in the run up to the Jan. 6 attack. Now that Bannon has been indicted on two counts, criminal contempt looks like a more effective alternative than civil subpoena enforcement, because courts generally act more promptly in criminal matters. But criminal enforcement of congressional subpoenas should be a last resort.

Moreover, Congress often cannot rely on the Justice Department to prosecute congressional contempt cases against senior members of the executive branch.

But all is not lost. Congress can immediately strengthen its ability to pursue effective civil enforcement of its subpoenas. Title 4 of the Protecting Our Democracy Act, H.R. 5314, developed with bipartisan input, includes well-crafted provisions to clarify Congress’ standing to enforce its subpoenas in court, require expedited consideration by judges, and impose for the first time monetary penalties for noncompliance.

Action is needed now to help restore the ability of Congress to stand up to the executive branch, acquire needed information, and help the American people discern the facts and hold its leaders accountable.

Jim Townsend is director of the Levin Center at Wayne State University Law School and previously served as a congressional staff member and as an elected member of the Michigan House of Representatives.