Congress Wants Information. Trump Says No. What Next?
The three House committees in the probe have sought documents from the Defense Department and the Office of Management and Budget.
(Bloomberg) -- The U.S. Congress has the power to demand testimony and documents and to hold accountable those who refuse to comply. As president, Donald Trump wields the power known as executive privilege to declare swaths of information off-limits to the legislative branch. These and other competing interests will define the coming weeks of legal and constitutional clashes as Democrats in the House of Representatives compile their case for impeaching Trump on the allegation he improperly solicited Ukraine’s help in investigating a political rival.
1. Whose testimony can Congress demand?
Almost anyone’s it wants to hear. America’s founders didn’t include a power of investigation in the U.S. Constitution. But the British Parliament had long conducted inquiries as part of the process of developing legislation, and Congress quickly decided that it needed to do the same. The courts have set some limits, most importantly the requirement that investigations relate to true legislative purposes. Congress can compel testimony or production of documents by issuing subpoenas.
2. Whose testimony is being sought by House Democrats?
The chairmen of three of the House committees involved in the impeachment inquiry have demanded documents from the White House, Vice President Mike Pence, Secretary of State Mike Pompeo and Trump’s attorney, Rudolph Giuliani. They’ve also sought documents from the Defense Department and the Office of Management and Budget. Democrats want testimony under oath from Marie Yovanovitch, the former U.S. ambassador to Ukraine who was recalled earlier this year; two associates of Giuliani, Lev Parnas and Igor Fruman; State Department officials including George Kent, who oversees U.S. policy toward Ukraine; Gordon Sondland, the U.S. ambassador to the European Union; and Ulrich Brechbuhl, a confidant of Pompeo. Expect more demands for documents and depositions.
3. Will the Trump administration go along?
Not even a little, it appears. In a letter to House Speaker Nancy Pelosi, White House counsel Pat Cipollone said Trump won’t permit participation in the inquiry by anybody in his administration. Cipollone demanded that Trump be allowed to review evidence and cross-examine witnesses and that House Republicans be allowed to subpoena their own witnesses and documents. Trump and his team had already expressed disdain for the Democratic-led inquiry. Defending the decision to block Sondland from testifying on Oct. 8, for instance, Trump tweeted that the investigation is “a totally compromised kangaroo court.” Days earlier, he said he wouldn’t let the White House produce documents until the full House approves a formal launch of the investigation. Pelosi says the Constitution and House rules and precedent require no such authorizing resolution.
4. What can Congress do to compel cooperation?
When the House or Senate believes it’s being wrongly rebuffed, it can vote to hold a person in contempt of Congress, a misdemeanor punishable by a fine of up to $1,000 and imprisonment for up to one year. Or it can file a civil lawsuit seeking a court order to force the person to comply; refusing to obey a court order can bring a charge of contempt of court. House Democrats have also raised the possibility of drawing up an article of impeachment -- a formal charge that could trigger a Senate vote on whether to remove Trump from office -- that alleges Trump obstructed justice in defying the House inquiry.
5. How does Congress enforce a contempt charge?
Its powers to do so are quite weak. A House resolution alleging criminal contempt would need a U.S. attorney to enforce it -- and U.S. attorneys report to the Justice Department, which is led by the attorney general, an appointee of the president. For this reason, it can be argued “that there is not currently a credible threat of prosecution” facing an official in the executive branch who “refuses to comply with a congressional subpoena at the direction of the president,” according to a March 2019 report by the Congressional Research Service. And while an allegation of civil contempt could ultimately be enforced by a judge, that route “may lead to significant delays in Congress obtaining the sought-after information,” the report found. In theory at least, Congress could enforce a subpoena on its own by dispatching an official known as the sergeant at arms to arrest officials and then conduct a trial before the full House. But that tactic, used early in Congress’s history, hasn’t been embraced since the mid-1930s.
6. How often do these questions arise?
This year, House Democrats have asked a judge to order former White House counsel Don McGahn to testify about whether Trump obstructed Special Counsel Robert Mueller’s probe into Russian interference in the 2016 election. (That request is pending.) By party-line votes, House Democrats also approved criminal contempt charges against U.S. Attorney General William Barr and Commerce Secretary Wilbur Ross, for withholding documents on plans to add a citizenship question to the 2020 census, though they’ve taken no steps yet to try to enforce those. From 2008 until this year, according to the Congressional Research Service, the House on four occasions held an executive branch official in criminal contempt for denying a committee information subpoenaed during an ongoing investigation. Not once did the executive branch pursue the criminal case. In three of the four cases, House committees did wind up obtaining “much of the information sought” by civil litigation, “but only after prolonged litigation,” the report says.
The Reference Shelf
- The Congressional Research Service report on subpoenas and enforcing compliance by the executive branch.
- How impeaching Trump erupted from mere talk to action.
- Why Giuliani is at the center of the impeachment investigation.
- Bloomberg Opinion columnist Eli Lake on why Trump relishes a battle over impeachment.
To contact the reporters on this story: David Voreacos in New York at dvoreacos@bloomberg.net;Andrew Harris in Washington at aharris16@bloomberg.net;Billy House in Washington at bhouse5@bloomberg.net
To contact the editors responsible for this story: Heather Smith at hsmith26@bloomberg.net, Laurence Arnold, Peter Blumberg
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