Contempt of Congress and Executive Privilege, Explained

(Bloomberg) -- The battle between the Democrats who control the U.S. House of Representatives and the Republican who lives in the White House is a true power struggle. Congress has the power to demand testimony and documents and to hold accountable those who refuse to comply. President Donald Trump wields the power known as executive privilege to declare swaths of information off-limits to the legislative branch. The clash between two co-equal branches of government is at the boundary of executive authority and congressional powers of oversight and impeachment.

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. When the House or Senate believes it’s being wrongly rebuffed, it can vote to hold a person in contempt of Congress.

2. What is contempt of Congress?

It’s a misdemeanor defined in the U.S. federal legal code as when a witness summoned by Congress "to give testimony or to produce papers" refuses "to answer any question pertinent to the question under inquiry." Failure to comply is punishable by a fine of up to $1,000 "and imprisonment in a common jail" for up to one year. (There’s also a civil -- noncriminal -- version of contempt.)

3. Who is being held in contempt?

The House Judiciary Committee, under its Democratic chairman, Jerrold Nadler of New York, voted on May 8 to hold U.S. Attorney General William Barr in contempt for not handing over a fully unredacted version of Special Counsel Robert Mueller’s report on Russian interference in the 2016 election and Trump’s possible obstruction of that probe. There’s been no move as of yet to bring that matter to the full House for a vote. Separately, the House Oversight and Reform Committee voted on June 12 to hold Barr and Commerce Secretary Wilbur Ross in contempt for withholding documents on plans to add a citizenship question to the 2020 census.

4. What happens next?

Possibly very little. A formal resolution alleging criminal contempt, if passed by the full House, wouldn’t go anywhere further without the involvement of a U.S. attorney -- one of the lead federal prosecutors around the country who report to the Justice Department, which is headed by Barr. Even if the case were then pursued in court, history suggests there would be a legal battle that could play out for years -- especially since Trump has invoked executive privilege over the documents Congress is requesting.

5. What is executive privilege?

It’s the limited right of the president to decline requests from Congress and the courts for information about internal White House talks and deliberations. The privilege is supposed to provide a safe space for presidents to get candid advice from aides without the concern that they’ll later be called to testify. Though U.S. presidents have claimed a right to confidentiality in the face of congressional demands virtually since the founding of the republic, the U.S. Supreme Court first recognized executive privilege in 1974 in the endgame to the Watergate scandal, when President Richard Nixon, claiming absolute protection of all presidential communications, tried to withhold audio tapes of Oval Office meetings and other evidence demanded by a special prosecutor. Even as it rejected Nixon’s specific argument, the court agreed that a president generally does have an interest in maintaining White House secrecy.

6. What determines the strength of a privilege claim?

Claims of executive privilege are strongest when they concern matters within the particular scope of the executive branch, such as national security, military affairs, law enforcement and foreign policy. In Nixon’s case, the court found that executive privilege can’t be used to hide potential evidence of a crime.

7. Where does impeachment fit in?

The U.S. Constitution says the president "shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." The definition of "high crimes and misdemeanors" is largely up to Congress. Contempt of Congress was the grounds for one of the three articles of impeachment against Nixon approved by the House Judiciary Committee in 1974. (Nixon resigned when it became clear he would be impeached by the House and convicted by the Senate.) The leader of House Democrats, Speaker Nancy Pelosi, has said she opposes pushing for impeachment because it’s clear the required two-thirds of the Republican-majority Senate would never agree to remove Trump from office. But more recently she said that defying congressional subpoenas "could be part of an impeachable offense."

The Reference Shelf

  • Nadler said Trump "wants to make himself a king, and Congress cannot permit that."
  • QuickTake explainers on impeachment and ongoing investigations of Trump.
  • Trump versus Congress can only end in a stalemate, because that’s what America’s founders intended, writes Noah Feldman in Bloomberg Opinion.

©2019 Bloomberg L.P.

BQ Install

Bloomberg Quint

Add BloombergQuint App to Home screen.