Congress and contempt: What you need to know

The House on Tuesday is poised to pass a resolution authorizing House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) to go to court to enforce congressional subpoenas for Attorney General William Barr and former White House counsel Don McGahn.

Democratic lawmakers have largely portrayed the vote as one that will hold Barr in civil contempt. But the resolution does not mention contempt, and it differs from past contempt resolutions that sought federal prosecution of officials who failed to comply with congressional subpoenas.

{mosads}As lawmakers vote on the resolution, here is what you need to know.

What are the different kinds of contempt in Congress?

Lawmakers have different pathways to try and force individuals to comply with congressional subpoenas.

A committee can vote to hold a person in criminal contempt, as the House Judiciary Committee did with a resolution passed last month that targets Barr and McGahn.

But that measure is on hold after Nadler announced Monday he had struck a deal with the Department of Justice (DOJ) for lawmakers on his committee to view some of the unredacted Mueller report materials.

If the House were to pass the Judiciary Committee’s criminal contempt resolution, the resolution would then be referred to the U.S. attorney’s office in D.C. for potential prosecution.

Another congressional authority lets lawmakers vote on whether to go to court to enforce congressional subpoenas if agencies, officials or other individuals aren’t complying with their requests.

{mossecondads}Democrats who unveiled Tuesday’s resolution last week categorized it as holding Barr and McGahn in civil contempt. But a Congressional Research Service report published in March described similar measures as civil enforcement of subpoenas.

Legal experts told The Hill that the measure up for a vote on Tuesday doesn’t reach the threshold for contempt, though it does have the same goal of obtaining documents and testimony currently being withheld from Congress.

“We’re calling it contempt for short, because the courts obviously would have to find the executive branch in contempt in order to sort of render the orders to comply,” said Rep. Jamie Raskin (D-Md.), a member of the House Oversight and Reform and Judiciary committees. “So it’s, generally speaking, not contempt.”

Congress also can vote to hold someone in what’s known as inherent contempt, a practice that has died out in recent decades.

In those situations, once the citation is passed, the sergeant-at-arms of the related chamber arrests the individual and brings them to the Senate or House floor for lawmakers to determine a punishment.

What does Tuesday’s resolution do?

The resolution the House is voting on Tuesday will allow Nadler to go straight to the House counsel to seek a court order against Barr and McGahn.

It’s unlikely that Nadler will pursue the order against Barr, considering his newly minted deal with DOJ on the Mueller documents. But McGahn, who is now a private citizen, could face a legal challenge from Democrats seeking his testimony.

The resolution includes a separate provision that empowers House committee chairs to pursue legal action to enforce subpoenas in the course of their investigations. Chairs will be required to get permission from top lawmakers before any court filings are made.

The measure also allows committees to move more quickly in enforcing their subpoenas, while not forcing lawmakers to take a stance on whether certain Trump administration officials should be held in contempt — taking pressure off any vulnerable lawmakers ahead of the 2020 election.

With the House expected to pass the resolution, that provision could be utilized as soon as Wednesday. House Oversight and Reform Committee Chairman Elijah Cummings (D-Md.) has scheduled a vote on whether to hold Barr and Commerce Secretary Wilbur Ross in contempt in the probe on the Trump administration’s addition of a citizenship question to the 2020 census.

What happens after the House holds someone in contempt?

If the House were to pass a criminal contempt resolution, the measure would then be referred to federal prosecutors — generally, the U.S. attorney’s office in D.C.

The DOJ then decides whether to bring those charges before a grand jury. But federal prosecutors have consistently declined to pursue such cases, as it involves prosecuting their own administration.

Instead, they typically side with current and former administration officials’ arguments that executive privilege shields them from having to share certain information with Congress.

If the House passes a civil resolution to enforce subpoenas, it can then go to the Bipartisan Legal Advisory Group, a group of top lawmakers who oversee the House general counsel. That group, currently controlled by Democrats, can then vote on whether to instruct the counsel to move forward with legal action.

Tuesday’s resolution will send the matter straight to the House general counsel, Douglas Letter, who could go to court as soon as that day to initiate legal proceedings.

When has Congress held people in contempt before?

The House has voted to hold administration officials in criminal contempt four times since 2008, and pursued civil action three times during the same time period, according to the Congressional Research Service.

The last time the House took on contempt was 2014, when the chamber voted to hold former IRS official Lois Lerner in criminal contempt after she invoked her Fifth Amendment right against self-incrimination in refusing to answer lawmakers’ questions. The U.S. attorney’s office for D.C. declined to prosecute the case, saying she didn’t waive her Fifth Amendment privilege.

Two years earlier, lawmakers voted to hold then-Attorney General Eric Holder in criminal contempt and for civil enforcement for congressional subpoenas issued in the investigation over the controversial “Fast and Furious” operation.

However, the DOJ declined to pursue charges against Holder, citing executive privilege. In 2014, a federal judge did not find Holder to be in contempt, although the judge ordered DOJ to hand over some of the documents requested by Congress. The court fight in Holder’s case dragged on for years, and was only recently settled.

The House also voted, in 2008, to issue contempt citations against Harriet Miers, the onetime White House counsel for former President George W. Bush, and then-White House chief of staff Joshua Bolten for refusing to testify over the firings of U.S. attorneys. Bush declared executive privilege over the issue, which the pair cited in not complying with the subpoenas.

The D.C. District Court ruled in the case that Miers had to testify, but could reject specific questions if they fell under the umbrella of executive privilege. That ruling was appealed to the D.C. Circuit Court of Appeals, but the case was eventually settled and Miers agreed to a closed-door interview with lawmakers.

Congress hasn’t used its inherent contempt powers since the 1930s, but it’s not off the table. The Congressional Research Service noted that while “the power has long lain dormant, it remains a tool that Congress may use to enforce subpoenas.”

Some lawmakers have referenced the authority in relation to Barr and other administration officials who have fought the congressional investigations.

“We do have a little jail down in the basement of the Capitol, but if we were arresting all of the people in the administration, we would have an overcrowded jail situation. And I’m not for that,” Speaker Nancy Pelosi (D-Calif.) said earlier this year.

That jail, however, no longer exists in the Capitol.

Mike Lillis contributed.