All week, the wrangling between Congress and the White House has been coming to a breaking point as House Democrats try in vain to get administration officials to cooperate with their oversight requests.
Treasury Secretary Steven Mnuchin said Monday that he would not comply with a House Ways and Means Committee request to turn over six years of President Donald Trump’s tax returns. As a result, the Democrats on the panel will decide on Thursday whether they will issue a subpoena for the tax returns or whether Mnuchin’s refusal to comply with the tax disclosure law was so blatant they can go straight to court.
On Tuesday, House Oversight Committee chairman Elijah Cummings (D-Md.) threatened to withhold pay from administration officials who refuse to comply with interview requests. Cummings, a frequent sparring partner with the administration, has been leading an investigation into the Trump administration’s efforts to add a citizenship question to the U.S. census, and the White House has blocked him at every turn.
“Please be advised that any official at the Department who ‘prohibits or prevents’ or ‘attempts or threatens to prohibit or prevent’ any officer or employee of the Federal Government from speaking with the Committee could have his or her salary withheld,” Cummings wrote Tuesday.
As Cummings noted, there are already laws that could be applied to withhold the pay of staffers who don’t comply with congressional requests, but agencies have some latitude in enforcing those laws, meaning even that move could end up in court.
Lawmakers are already looking at writing even tougher restrictions into appropriations bills. But any new restriction would have to be in a spending measure that Trump signs ― and there aren’t any government funding deadlines until October. However, additional appropriations riders are on the table to dock pay, withhold funds for other administration priorities or prohibit staff from working to undermine congressional requests.
Meanwhile, the House Judiciary Committee voted Wednesday to hold Attorney General William Barr in contempt over his refusal to testify before the panel last week, as well as his failure to hand over an unredacted copy of the report from special counsel Robert Mueller.
Trump claimed executive privilege Wednesday over the Mueller report ― though most of it is already public ― in an effort to conceal the redacted portions. That decision, marking the first time Trump has formally claimed executive privilege, is just the latest development in the president’s unprecedented effort to deny all further congressional document requests. On Tuesday, Trump directed former White House counsel Don McGahn to not testify before the House Judiciary Committee, prompting Judiciary Chairman Jerry Nadler (D-N.Y.) to also threaten McGahn with contempt.
Trump has said he plans to fight every subpoena coming from Democrats in Congress, and he’s directed administration officials to not comply with requests to testify.
That refusal in and of itself could constitute obstruction of justice, as Mueller noted in his report, but Democrats are making every effort to avoid impeachment and instead continue investigating the president.
House Speaker Nancy Pelosi (D-Calif.) has been emphatic that House Democrats should not move forward with impeachment at this point. That position, however, becomes more difficult to sustain every day Trump and his administration refuse to cooperate with routine congressional oversight.
Pelosi has thus far held off the impeachment calls through a mix of backhanded knocks at the president ― on Wednesday, she said he was “self-impeachable,” and she’s previously said “impeachment is too good for him” and that Trump “isn’t worth it” ― but those denouncements are functionally meaningless.
Even if House Democrats moved forward with impeachment, the Republican Senate is unlikely to do the same, meaning Trump more than likely would not be removed from office. At that point, Trump would have even less incentive to comply with congressional investigations.
Democrats are talking tough. At one point Wednesday, Rep. Ted Lieu (D-Calif.) said that if the administration was going to bring “a flamethrower to a knife fight,” then Democrats had to do the same and “fight fire with fire.” But their actions have hardly lived up to the posturing.
Democrats have instead tried to play hardball with the administration through a mix of subpoenas and, now, contempt votes. Those moves won’t do much, though, to make Trump or White House officials comply. When the full House votes to hold someone in contempt, all that happens is the House refers that person to prosecution ― something the Justice Department can simply decline to do.
The House can also vote to authorize a civil lawsuit to enforce a subpoena. Experts say Democrats will have strong cases to compel the executive branch to abide by their requests, but the problem is many of these cases could take so long they would lose political relevance. That’s what happened to Republicans fighting the Obama administration and Democrats fighting the George W. Bush administration.
The only other move Democrats have in their pocket is reviving the congressional power of “inherent contempt,” which allows Congress to fine or jail administration officials for failing to cooperate with subpoenas. The Supreme Court has upheld the inherent contempt power, but Congress hasn’t used it since the 1930s.
“I think that’s a real prospect that’s looming in our future,” Rep. Gerry Connolly (D-Va.) said Wednesday, echoing a common sentiment among Democrats.
Pelosi also referenced the move Wednesday when she was asked about Mnuchin not complying with requests for Trump’s tax returns. “We do have a little jail down in the basement of the Capitol,” she said, once again seeming to talk tough while largely making a futile point.
There isn’t a jail in the basement of the Capitol. And the courts have said that a more seemly consequence would be fines rather than imprisonment.
But there is always the Capitol Police station at the furthest edge of the congressional campus.