Congress must diversify its subpoena enforcement arsenal to counter escalating executive branch obstruction

The effectiveness of congressional subpoena power, already severely damaged over the past 15 years, has plummeted to a dangerous new historical low after a relentless and successful scheme of obstruction by the Trump administration during the House impeachment inquiry and last week’s devastating D.C. Circuit Court ruling that Congress lacks standing to seek judicial enforcement of subpoenas in federal court.

The White House, four executive branch departments, and nine current or former administration officials refused to comply with subpoenas upon instruction from the president throughout the impeachment process. Dozens of other administration officials and associates defied subpoenas at the direction of the White House prior to impeachment. A total of at least 82 congressional information requests, including 42 subpoenas of executive branch personnel and their associates, have been obstructed by the Trump administration.

The root cause of these enforcement problems is the loss by the House of a credible threat of personal punishment for executive branch officials who fail to comply with legislative subpoenas. This deficiency has developed primarily as the consequence of the House’s acceptance of a decades-long executive branch campaign to subvert the use of Congress’ two most powerful, successful and constitutionally recognized enforcement methods: The inviolable institutional self-protective mechanisms of inherent and criminal contempt. The House has allowed the executive branch to force it into dependence on the civil enforcement process, which entails filing lawsuits to obtain compliance orders and is slow, ineffective and vulnerable to aberrant court rulings. This congressional abdication of its constitutional responsibility and authority to such fundamental executive branch encroachments is unacceptable.

But the House possesses the authority to repair this damage to its subpoena power. By either simple resolution or amendment of its rules, it can diversify its enforcement arsenal by adding two powerful new options that would re-establish a credible threat of personal punishment for executive branch officials who defy subpoenas and reclaim its historically most effective inherent and criminal contempt enforcement powers. It should use this authority to establish a modified version of the historical inherent contempt procedure that would enable it unilaterally to conduct trials of, convict and directly penalize executive branch officials who defy subpoenas with heavy personal fines ranging from $25,000 to $250,000. 

The House should also reinforce inherent contempt fines with a provision enabling it to authorize the speaker to appoint an attorney to institute a criminal prosecution that may result in imprisonment of persistently recalcitrant executive branch officials for whom fines alone may be insufficient to compel compliance with a subpoena. Neither of these punishments is subject to the presidential pardon power.

History confirms the necessity of a credible threat of punishment for noncompliant individuals for effective subpoena enforcement. Inherent and criminal contempt were so effective historically because they confronted people who defied congressional authority with certain, swift, severe punishment through jailing, fines or both. Between 1857 and 1934, at least 28 witnesses complied with congressional information demands after being threatened with or charged in inherent contempt actions including two executive branch officials. Despite the impressive success of inherent enforcement, Congress abandoned it because the required floor trials were too time consuming and turned toward exclusive reliance on criminal contempt after 1935. From 1975 to 1998, ten cabinet-level and senior White House officials complied substantially or fully with congressional subpoenas after citations for criminal contempt triggered the threat of potential criminal prosecution.

Congress’s ability to rely on the threat of criminal prosecution of contempt was shattered by the Bush administration in 2006 when it announced its refusal to enforce the criminal contempt statute, claiming that it, along with the doctrine of inherent contempt, were unconstitutional because they violated Reagan-era separation of powers theories alleging that exclusive presidential authority over which laws were to be “faithfully executed” and prosecutorial discretion superseded congressional contempt powers. 

Congress acquiesced in this usurpation by allowing the last three administrations to block access to its best enforcement tools while coercively channeling it into reliance on civil enforcement. This is inferior because it lacks a credible threat of personal punishment, inevitably deteriorates into prolonged litigation incompatible with expedient oversight and forfeits its constitutionally-recognized absolute final authority over contempts to the courts. This disposition also ignores the reality that normal levers of legislative political power over the executive, including appropriations, legislation and nominations, have been effectively mooted by divided government and hyper-partisanship.       

The deterioration of the intended constitutional order, the authority of Congress and the will of the people has gone far enough. It is time for Congress to reclaim its rightful investigative powers in support of its constitutionally-mandated legislative responsibilities by implementing inherent contempt fines and independent criminal contempt prosecutions by congressionally-appointed attorneys.

Dr. William J. Murphy is the founder and president of Good Government Now, an advocacy group dedicated to strengthening congressional subpoena enforcement, investigative, and oversight institutional capacities and is an associate professor of social science at the New England Institute of Technology in East Greenwich, RI.

Morton Rosenberg is a senior fellow with Good Government Now, a Constitution fellow with the Constitution Project at the Project on Government Oversight (POGO), and was a senior analyst with the American Law Division of the Congressional Research Service from 1973 to 2008 specializing in investigative oversight and related separation of powers issues.