WASHINGTON ― House Speaker Nancy Pelosi (D-Calif.) declined to take a position Thursday about inherent contempt ― an obscure power that would allow Congress to fine or even jail Trump administration officials who don’t comply with subpoenas ― and once again made it clear that Democrats are extremely hesitant to move forward with the idea of impeaching President Donald Trump.
Asked about the House possibly holding Trump administration officials like Attorney General William Barr in so-called inherent contempt, Pelosi laid out how that’s “an option,” but she refused to endorse the idea.
“I’m just saying it is an approach,” Pelosi said during her weekly press conference. When pressed to take a position, she responded: “I don’t have to have a position.”
Pelosi did refuse to take inherent contempt “off the table,” but she made it clear she wasn’t eager to use the power, mentioning that a preferable outcome would be Trump administration officials complying with the subpoenas from House committees.
Democrats haven’t even moved forward with holding Barr in contempt. House Majority Leader Steny Hoyer (D-Md.) said Wednesday that he didn’t expect a floor vote on contempt until at least June, when more officials could be added to a resolution. Rank-and-file Democrats might not have the same timetable in mind, but they sounded largely on board with the slow approach earlier this week.
Trump has urged his administration not to follow subpoenas and to ignore requests for testimony before House committees. And while agencies and officials seem to have largely disregarded Trump’s instructions, some officials ― like Barr ― have been happy to ignore subpoenas from the House.
That’s left Democrats in a difficult position of their own making. Pelosi and other Democratic leaders have effectively slowed talk of impeaching Trump by arguing for more investigations. But the White House isn’t cooperating with those investigations, and administration officials are claiming Democrats lack legitimate legislative purposes for their probes.
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On Wednesday, the White House sent a letter to the Judiciary Committee ― largely imitating a letter the Treasury Secretary sent to the Ways and Means Committee when it refused to turn over Trump’s tax returns ― arguing that it doesn’t need to furnish documents related to the investigation by special counsel Robert Mueller.
Pelosi called that letter “a joke,” and said it was “beneath the dignity of the presidency of the United States, in defiance of our Constitution.”
She then said the information that had been requested wasn’t about impeaching the president per se. “It’s about impeachment as a purpose ― a constitutional purpose of justifying, constitutionally and court-wise, a path,” Pelosi said.
Essentially, Pelosi is arguing that Democrats need those documents in order to determine whether they move forward with impeachment. It’s a step removed from directly claiming that impeachment proceedings are the legitimate legislative purpose for which the documents are needed. But the White House is leaving Democrats with few options, if they continue to insist on holding off on impeachment in favor of more investigations.
Those investigations will inevitably mean more subpoenas. And if Trump officials keep ignoring those subpoenas, it will mean more contempt votes. Pelosi could use her inherent contempt powers at that point, but given her reluctance on impeachment and contempt, many of these questions would likely be decided by a lawsuit.
Federal courts have long said Congress has the right to demand information from the executive branch, finding that investigation is an inherent part of legislating. As those decisions have noted, it’s difficult to change laws effectively if you can’t find out how the executive branch is enforcing them.
But court victories can be worthless if they take so long that a new set of lawmakers assume office and a new president arrives in the White House.
That’s happened repeatedly over the past few decades. Democrats won testimony from former George W. Bush administration officials, and Republicans won rulings securing documents the Obama administration had sought to conceal. But the victories came too late and were politically irrelevant.
“The passage of time, together with the intervening congressional and presidential elections in each case, could be said to have diminished both the value of the disclosure and the committee’s ability to engage in effective, timely oversight,” Congressional Research Service expert Todd Garvey wrote in his March analysis of the recent history of congressional subpoena enforcement.
Congress used inherent contempt for most of its history ― including in the 1970s, when Sen. Sam Ervin (D-N.C.) threatened to arrest officials from the Nixon administration ― but lawmakers haven’t actually locked someone up since the 1930s.
“Although the power has long lain dormant, it remains a tool that Congress may use to enforce subpoenas,” Garvey wrote.
Instead of physical arrests, which legal experts have said would be unseemly according to modern standards, House Democrats are increasingly talking about using the inherent contempt power to sock Trump administration officials with fines.
House Judiciary Committee chair Jerrold Nadler (D-N.Y.) told HuffPost on Thursday that “it’s being discussed,” but declined to go into any details.
“I’m concerned that we want to get this done as rapidly as possible and that we want to figure out how to expedite the court fights as rapidly as possible,” he said.
But Pelosi is clear that she doesn’t want to “leapfrog” any steps.
“First we ask,” she said. “Then we subpoena friendly. Then we subpoena otherwise. Then we see what we get.”
Pelosi has declined to say what might happen then.