Don’t start fitting Stephen Miller for prison stripes or orange jumpsuits just yet. Rep. Gerry Connolly (D-VA) told CNN that the House Oversight Committee plans to enforce their subpoena authority to the full extent, including levying fines and even jailing those who refuse to appear. There’s a difference, though, between theoretical authority and the power of enforcement:
Rep. Gerry Connolly threatened jail time for White House officials who are declining to comply with congressional committees’ efforts to conduct oversight of President Donald Trump’s administration. It’s the latest salvo in the escalating battle between the White House and congressional Democrats, who have scaled up their oversight requests following the conclusion of special counsel Robert Mueller’s investigation.
Connolly, who sits on the Oversight Committee, told CNN’s Wolf Blitzer on “The Situation Room,” “We’re going to resist, and if a subpoena is issued and you’re told you must testify, we will back that up.”
“And we will use any and all power in our command to make sure it’s backed up — whether that’s a contempt citation, whether that’s going to court and getting that citation enforced, whether it’s fines, whether it’s possible incarceration,” the Virginia Democrat added. “We will go to the max to enforce the constitutional role of the legislative branch of government.”
Connolly’s claim that defiance of these subpoenas rises to a constitutional crisis is hyperbolic at best. As Wolf Blitzer notes, none of the three subpoenas discussed with Connolly involve the Mueller investigation, but at least two of these subpoenas involve executive privilege: Stephen Miller, John Gore, and possibly Carl Kline as well. Oversight refuses to allow Gore to bring a DoJ attorney to advise him on executive privilege restraints while being questioned. Executive privilege is a well-adjudicated counterclaim to congressional subpoenas that allows presidents to keep discussions with aides confidential in order to protect the executive’s ability to get good advice and govern wisely. As White House counsel Pat Cipollone noted in his response to Miller’s subpoena, no White House has allowed advisers to testify about internal discussions in the past.
Congress’ subpoena power isn’t plenary either, although it is certainly wide-ranging. A Congressional Research Service analysis from 2015 concludes that Congress has to show a legitimate legislative purpose for the subpoena, and that means it has to involve something in Congress’ control. Internal discussions at the White House wouldn’t qualify, and perhaps neither would security-access decisions, authority for which is mainly reserved to the executive branch.
Even if it’s on point legislatively and not subject to executive privilege, however, enforcing punitive measures on subpoena targets is, shall we say, more theoretical than practical. Again, the same CRS analysis says Congress has the ability to levy fines or command jail time, but lacks the authority to make those writs stick. In almost all situations, it would take the cooperation of the Department of Justice to enforce those rulings, and a DoJ under Trump is not about to enforce such writs.
Congress could then go to court, but that runs into a time problem, as it did with Harriet Miers. Once the session of Congress expires, so do any contempt proceedings — and such efforts could take years to get through the court. With Miers, it took 19 months just to get a procedural reading, and the case on its merits had yet to be argued when the session of Congress expired.
Connolly’s issuing empty threats, as former AG Eric Holder can attest chapter and verse over his years-long contempt citation over refusal to disclose actual DoJ actions in Operation Fast and Furious. No one’s going to jail, no one’s paying any fines, and as long as Democrats obsess over investigations, no one’s coming to their hearings either. That’s not a great development, but it’s not a new one either — and the gotcha climate that still remains after the end of the Mueller investigation has a lot to do with it worsening.