A Question of Contempt: It Is Time For Congress To Enforce Its Oversight Authority

800px-Capitol_Building_Full_ViewBelow is my column in the Hill Newspaper on the surprising move of the Republican House of Representatives toward a contempt action against officials in the Trump Administration.  While some have called for the appointment of a second special counsel to investigate the dossier controversy, I continue to question the necessity of such an appointment even though I believe that there is a need for an investigation.  I believe that Congress can fully investigate the allegations of political influence in the federal investigation into the matter.  However, that will only be the case if congressional committees can secure the information that they require (and are entitled to) as part of their oversight authority.  Any such effort will have to deal with a long history of contempt by the Justice Department for congressional oversight investigations.

Here is the column:

An extraordinary thing is happening in Washington. A congressional committee is preparing a contempt citation for the failure to turn over documents to the House Intelligence Committee. That, itself, is not particularly new, but the target is. Republican House Intelligence Committee Chairman Devin Nunes (R-Calif.) is drafting a resolution that would target two high-ranking officials, FBI Director Christopher Wray and Deputy Attorney General Rod Rosenstein, in a Republican administration.

While members often proclaim their fealty to legislative oversight, it is a principle that seems to ebb and flow with the party affiliation of the president. When the White House is in the hands of the opposing party, members demand compliance with congressional subpoenas. Yet, the same members become conspicuously silent when their own administration stonewalls committees. This time is different, and that is a good thing.

Agencies have become interestingly independent and, yes, contemptuous of Congress. This trend is due in large part to the failure of Congress to actively defend its authority when it is exercising its core oversight responsibility, such as investigating possible political influence at the FBI and the Justice Department. President Trump is under a special counsel’s investigation looking at his alleged attempts to influence the FBI and DOJ, while Congress is investigating countervailing claims involving Clinton supporters.Congress is seeking “outstanding documents” related to an August subpoena dealing with the controversial “Russia dossier,” a private investigation by a former British spy into Donald Trump’s political and business activities. That investigation was bankrolled by the Clinton campaign and the Democratic National Committee, despite earlier denials by top Clinton lawyer Marc Elias and campaign chairman John Podesta.

These concerns have been magnified by new controversies over the political affiliations by DOJ officials. Associate Deputy Attorney General Bruce Ohr was recently demoted, reportedly due to contacts with the author of the dossier, Christopher Steele. Other FBI and DOJ officials are embroiled in controversies over ties to the Clinton campaign or to anti-Trump communications. One of those figures is Peter Strzok, the No. 2 official in the FBI’s counterintelligence division who played a key role in the Clinton and Trump investigations. He was removed for anti-Trump, pro-Clinton statements.

The constitutional question is removed from the merits of the allegations and instead focuses on whether Congress has a right to these documents and witnesses, and whether, if denied, Congress has a right to enforce its authority through contempt power. The answer is that it does.

The Justice Department has a history of stonewalling congressional investigators. The reason has a lot to due with a change, pushed through by the Justice Department decades ago, in the process for prosecuting congressional contempt. Once a house of Congress holds someone in contempt, the matter is handed over to the U.S. attorney for the District of Columbia. The Justice Department has then repeatedly refused to prosecute contempt sanctions against its own personnel.

One of the most glaring examples was the criminal contempt case against President Obama’s attorney general, Eric Holder, in the “Fast and Furious” scandal. This was an effort by the Bureau of Alcohol, Tobacco, Firearms and Explosives to track guns across the southwest border by releasing a large number of weapons to criminals. One result of this tragic, moronic program was the killing of a federal officer. Holder should have been prosecuted for his congressional contempt, but his own agency refused to even submit it to a grand jury.

I have previously testified before Congress, under both Democratic and Republican presidents, for members to more aggressively protect their inherent authority, including a reexamination of inherent contempt authority. There is an imbalance today caused by the increase in executive powers and the rise of federal agencies. As agencies felt more independent from Congress, they have increasingly treated congressional demands as purely discretionary.

Congress has the right to find officials in “inherent contempt” and can even hold trials for contempt, as it did in 1934. The Justice Department always bristled at the notion of congressional contempt proceedings and fought for decades to take control of the case through the statutory contempt process created in 1857. It assured Congress that it would handle such cases in a fair and detached fashion in bringing such claims before grand juries. Congress finally relented and now follows a procedure by which one house approves a contempt citation and either the Speaker of the House or Senate President certifies the citation to the U.S. attorney for the District of Columbia under U.S. Code.

The Justice Department, however, has largely honored its commitment in the breach. In 1982, in the contempt case against EPA Administrator Anne Gorsuch Burford (the mother of current Supreme Court Justice Neil Gorsuch), DOJ declared it would not submit such cases to the grand jury where an official was acting under a claim of executive privilege. Since then, it has declined to submit contempt cases to the grand jury in the cases of Burford, EPA Assistant Administrator Rita Lavelle in 1983, White House Counsel Harriet Miers in 2008, White House Chief of Staff Joshua Bolten in 2008, Attorney General Holder in 2012 and IRS Director Lois Lerner in 2014.

That brings us back to the current controversy. The citations against Burford, Lavelle, Miers and Bolten were issued by Democratic-controlled houses during Republican administrations. The citations against Lerner and Holder were issued by a Republican-controlled House during a Democratic administration. In contrast, the current proposed citation would be the first issued by a Republican House during a Republican administration.

Part of this new dynamic is the growing view among conservative voters that a “deep state” is undermining President Trump’s policies while protecting his critics. Regardless of the reason, those of us concerned over the shrinking legislative authority in our tripartite system relish the idea of a House refusing to be stonewalled, even by an administration controlled by its own party.

In 1821, in Anderson v. Dunn, the Supreme Court held that absent the power to hold people in contempt, Congress would be “exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may mediate against it.” That prediction has come true with officials acting as if congressional subpoenas as mere requests and their compliance as mere discretionary choices. Yet, this will be a purely symbolic gesture unless Congress moves to reinforce its contempt authority with actual prosecution. It is time for Congress to reclaim the power to hold contemptuous officials in contempt.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

134 thoughts on “A Question of Contempt: It Is Time For Congress To Enforce Its Oversight Authority”

  1. Wait one damn minute, JT are you saying THIS congress should do it’s job? Oh man, maybe you should stop going to the DC watering holes after work. THIS congress has ONE job, and one job only, that is to hold off on the truth about Trump until they pack the courts and get their “Donor Class Relief Act”

  2. “Contempt” – an absurd remedy.

    The Founders had no expectation that extremist, liberal democrats would replace the Constitution with the Communist Manifesto. The Founders did, however, establish a judicial branch to keep legislation and execution within the strict confines of the Constitution. The Supreme Court has failed in its fundamental charge; to assure that actions comport with the literal Constitution.

    “…whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”

    To wit,

    Alexander Hamilton –

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    The People have the power and Congress exercises that power for the People. Impeachment is the “oversight authority” of the People through Congress. The impeachment process must be strengthened, accelerated and administered vigorously.

    Start at the top with the Supreme Court which has shown contempt for the Constitution since “Crazy Abe” Lincoln’s “Reign of Terror” by allowing Lincoln to deny the natural and God given right of secession, conduct an unconstitutional and undeclared war of aggression on a sovereign foreign nation, issue a “proclamation” with no legal basis, to suspend Habeas Corpus and by allowing “Crazy Abe’s” successors to tyrannically and fraudulently impose their “Reconstruction Amendments” without proper ratification, without a quorum and under the duress of post-war military occupation.

    The same corrupt U.S. Supreme Court did not strike down a century of forced imposition of “central planning,” “redistribution of wealth” and “social engineering,” denying constitutional freedoms and private property rights to American citizens and providing the power of a dictatorship to government.

    Welfare, food stamps, social services, quotas, WIC, HAMP, HARP, Obamacare, forced busing, Medicaid, Social Security, Medicare, Dept.’s of HHS, HUD, Labor, Education, “Non-Discrimination” laws, “Fair Housing” laws and every other form of redistribution, social engineering and central planning deny the rights and freedoms of citizens and are irrefutably unconstitutional.

    A question of contempt, indeed!

  3. The US has been reduced to one branch of govt., the executive branch. That branch is of the oligarchy, for the oligarchy and run by the oligarchy. It is well past time that we restored the three branches of govt. as co-equals but the people in Congress just pick up their bribes and move along to private industry after that. It’s not in their interest to actually take part in holding the oligarchy to account. They are its minions and they apparently like it that way very much.

    But yes, It certainly would be great if they started acting as if they cared about this nation.

    1. Let’s see. You think the Constitution says, “if the have-nots want what the haves have, the government should give it to them, right?” The Founders gave Americans the only thing they could: Freedom. The only alternative is slavery in a dictatorship. The American Founders established a restricted-vote republic, not a one man, one vote democrazy. Along with freedom is the understood “self-reliance.” Merit is the dynamic, not your ability to covet. All forms of central planning, redistribution of wealth and social engineering are unconstitutional principles enumerated by the Communist Manifesto. The Constitution did not establish a “Covetocracy.” Here’s a tip: If you are jealous of successful people, go out and be successful yourself. Jealousy of the successful engendered the term “Oligarchy.” Your problem is your inability to accept your inferiority. That’s sad. Try reading the writing of the Founders. They applied significant criteria to the vote. Never did they intend for the “poor” or women to vote. They knew the “poor” would sell their votes, that “the hand that rocks the cradle, rules the world” and that America needed a growing homogeneous population, not an imported one. Look around. Do you see the hysteria and incoherence? That will soon be replaced with “Tytler’s Dictatorship.” Wait. It already has been.

      “A democracy cannot exist as a permanent form of government. It can only exist until the people discover they can vote themselves largess out of the public treasury. From that moment on, the majority always votes for the candidate promising the most benefits from the public treasury, with the result that democracy always collapses over a loose fiscal policy–to be followed by a dictatorship.”

      ― Alexander Fraser Tytler

  4. Reblogged this on Roberts Thoughts 2 and commented:
    “An extraordinary thing is happening in Washington. A congressional committee is preparing a contempt citation for the failure to turn over documents to the House Intelligence Committee. That, itself, is not particularly new, but the target is. Republican House Intelligence Committee Chairman Devin Nunes (R-Calif.) is drafting a resolution that would target two high-ranking officials, FBI Director Christopher Wray and Deputy Attorney General Rod Rosenstein, in a Republican administration.

    While members often proclaim their fealty to legislative oversight, it is a principle that seems to ebb and flow with the party affiliation of the president. When the White House is in the hands of the opposing party, members demand compliance with congressional subpoenas. Yet, the same members become conspicuously silent when their own administration stonewalls committees. This time is different, and that is a good thing.”

  5. When you peek beneath the black-and-white stripes of the referee’s uniform, you too often see the blue jersey underneath. It’s progressives all the way down. Progressive professors teach progressive students who join progressive newsrooms and then marry progressive spouses who land jobs in progressive think tanks and join progressive congressional staffs. In that circumstance, no one should presume that you’re a referee simply because you work for the New York Times or because you teach part time at Yale. You have to earn that title, and you have to earn it in part by showing you can escape your own confirmation bias.
    http://www.nationalreview.com/article/454573/media-bias-against-trump-stems-from-progressive-monoculture?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Monday%20through%20Friday%202017-12-12&utm_term=NR5PM%20Actives

  6. Good article. If you want to identify the progressives on this blog, just look for those opposing the oversight authority of the legislative branch. It has taken them a very long time to create this massive, administrative state that operates above the law. Their shadow government wasn’t supposed to have President Trump at the head of the table. It’s being exposed and if Nunes and Congress take back the power that’s been given up over decades, then it will set back the progressives for decades to come.

    And can we please be honest about this pretend conflict between which party controls which branch. There is no R and D when it comes to usurping power. This is a war against progressives in both parties.

    1. See that one hundred congress people want to bring the executive in for hearings on his sexual abuse charges. Claim your power, Congress.

      1. Too bad Congress ducked their obligation to serving our country by demanding a hearing from Clinton and Obama on the destruction and assassination in Libya. I know these “grand crimes” are beyond the scope of understanding by most progressives, but it’s worth a try.

        But that would require the Legislative branch to go against the MIC. Neither party will do that. Once you get to Wall Street and MIC, it’s all one party.

    2. There is no shadow government of deep state progressive democrats running the country and battling the interloper Trump. You sound like a paranoid lunatic.

      What is the deep state? No mystery. Who owns the politicians? The Rich. The economic royalists.

      Your version of reality sounds like a demented wish fulfillment cartoon. The limp, effete liberals run academia, media, government, Hollywood, Labor, with an iron hand where the innocent right winger is always the victim.

  7. “Agencies have become interestingly independent” … that is a strange choice of adjective in this case.. “Interesting” is a far too common weasel word that lacks willingness to take a position. I can propose others such as frightening, unacceptably, illegally etc … something that takes the stand that is proper here.

  8. ““Part of this new dynamic is the growing view among conservative voters that a “deep state” is undermining President Trump’s policies while protecting his critics. …”

    Here’s a case in point:

    Nunes Furious Over McCabe No-Show: Sending Team To “Scrub” DOJ Docs; Preparing Subpoenas

    What’s up with that? Doesn’t that make the point who answers to who here?? Don’t they have some guys with the correct hats to drive over there and drag his a$$ up to the house for his “scheduled” appointment?? “Nunes Furious…” well, do something about it then!

    I guess if I get a traffic ticket, I’ll just go to court when it’s convenient for me to do so…

    http://www.zerohedge.com/news/2017-12-13/nunes-furious-over-mccabe-no-show-sending-team-scrub-doj-docs-preparing-subpoenas

    1. slohrss29 re “I guess if I get a traffic ticket, I’ll just go to court when it’s convenient for me to do so…” LOL

  9. “Part of this new dynamic is the growing view among conservative voters that a “deep state” is undermining President Trump’s policies while protecting his critics. Regardless of the reason, those of us concerned over the shrinking legislative authority in our tripartite system relish the idea of a House refusing to be stonewalled, even by an administration controlled by its own party.”

    Well yes, isn’t that the whole problem here? We’re seeing the struggle of unelected career government officials against those who wish not to continue enabling them. Congresscritters are A-OK with that though. Need to thin out that herd by every means possible.

    1. What policies? The tax cut for the corporations seems to be sailing through. Raising taxes on the middle class is the goal of Trump’s Goldman Sachs government. The deep state is not stopping his hallmark legislation although someone should. See that Jones won’t be seated in time to vote against the corporate giveaway financed on the back of of the middle class.

      1. swm, I am a tax practitioner of over 30 years, and have spent many, many hours over the last few weeks analyzing the proposed tax reform bills. With all due respect, your comments are bullsh*t. Nothing but left wing talking points made up from whole cloth.

            1. “All experts agree with SwM. Maybe you should stop practicing and get some advice from professionals FFS.”

              That would be the MSM experts. The experts on Iraq, Libya, Syria, etc… The ones who said Clinton had a 99.9% chance of winning the election. Those experts. They’re only experts if they fulfill your pre-arranged expectations. You publish even-handed incriminating information, forget it. Ask wikileaks.

  10. It would be interesting if Congress held their own contempt proceedings. They have the Capitol Police and I am sure they have a jail somewhere they can put them in. God knows we own a lot of them. I think you send one of them to jail for a year, the rest will start to pay attention. If you have to do it several times, so be it. How long has Judicial Watch been trying to get Hillary’s emails from the State Dept and they still have 40,000 left to deliver.

    And it is not just Congress that needs to lay down the law, judges need to do the same thing. The Feds slow walk everything and then never deliver. They need to be holding some lawyers in contempt in jail (not fines) until the matter is righted. This is why judges should be required to lose their Bar membership when they become judges.

    1. Congress needs to lay down da law on da sexual abusers. Franken out soon. Conyers out. Menendez and T rump are sittin ugly. Read their are 30 more. Pervy Roy’s loss should spur da Congress on to send the buzzards home.

      1. Why is it that “abused” women don’t file criminal charges or law suits? Maybe laws should be passed which penalize people who have knowledge of crimes and don’t report those crimes. Maybe people who don’t report crimes when they occur should go to jail when they weaponize their unproven and unlitigated allegations later.

        “Speak now or forever hold your peace.”

  11. If Wray and Rosenstein are stonewalling Congress, and if Congress is trying to protect Trump from Mueller by citing Wray and Rosenstein for contempt, then why doesn’t Trump just fire Wray and Rosenstein for stonewalling Congress in just such a way as to deprive Trump of Congressional protection from Mueller? Exactly whose privilege is Executive privilege, anyhow? Wray’s? Rosenstein’s? Mueller’s? Huh? What?

    Why doesn’t Trump just cut to the chase and fire Mueller, instead? Gee. I wonder what happens next after Trump fires Mueller? Or Wray? Or Rosenstein? How is The Congress supposed to fight FUBAR with FUBAR, if The POTUS can’t force The United States Attorney for The District of Columbia to indict Wray and Rosenstein for contempt of Congress? Did Trump forfeit his registered trademark on the phrase, “You’re fired,” when he took the Oath of Office for POTUS? It’s so unfair. Everybody’s being mean to The Donald.

  12. Turley must not be watching the House investigative committee’s that refuse to issue subpoenas and only have voluntary witnesses. The witnesses come and go as they please, end questioning when they decide they’re done and refuse to answer any question they decide not to. Don Jr just claimed attorney/client privilege about a conversation between him and his father. Jared recently ended an interview as did Erik Prince. Several witnesses refuse to answer White House related question without even making the claim of Executive Privilege.

    The only reason Nunes is seeking subpoenas is to harm the Special Counsel investigation and Turley wants to give him credit. He has been as partisan in his approach as any except Trey Gowdy and Darrell Issa.

  13. When I was transferred to D.C., my biggest eye-opener was realizing how little concern my agency has about Congressional inquiries and investigations. Inquiries from members of Congress are usually passed down to fairly low level employees who produced a canned “we’re looking into it” response. But it works. I’ve learned that legislators have a very short attention span, so if the agency drags its feet, and the legislator or committee will give up and go away. No matter how bad the scandal, the bureaucracy stays in place, so they have no reason for concern. Even an unusually long interest in agency misconduct, like the Lois Lerner scandal, did not result in any repercussions to anyone in the IRS. Ms. Lerner voluntarily retired, and her lieutenants have been moved to other senior manager positions within the IRS. So with no consequences, there is little reason for IRS, DOJ or the personnel of any other powerful agency to give a fig about a congressional investigation.

        1. To put The Lecher-In-Chief, Don Juan di Mar-A-Lago, under an electron microscope and see if science can determine how infinitesimal Don Juan’s sexual mores might be.

  14. Congress doesn’t have the balls to do it’s job.

    And done the Progressive Socialist way you give all your congressional legislative power to the Executive.

    Stupid is as stupid does,

  15. They can start by going after Hillary’s IT guy Bryan Pagliano, who boldly ignored a subpoena to testify before Congress. He never showed up and absolutely nothing happened to him. Same with Eric Holder.

  16. Devin Nunes is absolutely the wrong person to carry the torch in this fight. He has about as much interest in conducting a fair and impartial investigation as Donald Trump has in becoming a vegetarian.

    Done correctly, Congressional investigation of the executive branch is a good thing and is needed as a check on executive power.

    Done the Devin Nunes way, it is just another way to obstruct a pending criminal investigation.

    1. Yep. That is what they’re up to. Investigate the investigation. Make law enforcement against the law. Make a mere man, Don Juan di Mar-A-Lago, above the law. Just like old Tricky Dick Nixon. They never learn.

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