Democrats Consider Fines for Trump Officials Who Spurn Subpoenas

Joe Light
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U.S. Rep. Jerrold Nadler, D-N.Y., chair of the House Judiciary Committee, speaks during a news conference, Thursday, April 18, 2019, in New York. (AP Photo/Mary Altaffer)

(Bloomberg) -- The Trump administration is fighting House Democrats’ investigative inquiries at every turn. Some Democrats want to make them pay.

At a meeting of House leaders earlier this month, Judiciary Committee Chairman Jerrold Nadler suggested fining officials personally if they deny or ignore subpoenas, according to a person who attended the meeting. Nadler’s idea, the person said, was to put teeth in his party’s numerous investigative queries, many of which Trump officials are stonewalling or simply ignoring.

Nadler even mentioned jailing administration officials as a consequence for contempt of Congress, though he surmised such a plan might be unrealistic, added the person, who requested anonymity to discuss a closed-door session. The person said the idea surprised many in the room but seemed to have been researched as a serious option by Nadler or his staff.

A Nadler spokeswoman did not respond to telephone and email requests for comment.

Since January, the Trump administration has faced a fusillade of subpoenas, demands to testify and letters requesting information.

Just this month, House committees have demanded an unredacted copy of Special Counsel Robert Mueller’s report on Russian interference in the 2016 election, six years of President Donald Trump’s personal and business tax returns and testimony on White House security clearances.

The administration has often denied the requests, calling them an unconstitutional infringement on the president’s powers.

The latest delay came on Tuesday, when Treasury Secretary Steven Mnuchin told House Ways and Means Committee Chairman Richard Neal of Massachusetts that it would take until May 6 to respond to the tax return request and argued that turning over the documents would be a violation of taxpayer privacy.

Those kind of responses have led some Democrats to consider next steps and look at recent history.

In 2012, the House voted to hold Attorney General Eric Holder in contempt of Congress for failing to provide documents related to an anti-gun-trafficking operation known as Fast and Furious. The Republican-led Congress took the Obama administration to court, but years passed before the Justice Department turned over the documents.

To avoid a similar delay, some lawyers have advocated that the House vote for a new rule to allow it to fine people outside the court system for noncompliance with congressional subpoenas. The process, called “inherent contempt” because courts have said the power is an inherent part of Congress’ legislative powers, was mostly mothballed in recent years because it was politically unpalatable.

With the Trump administration seeking to delay inquiries on so many fronts, however, some lawyers are urging it be revived.

“It’s political suicide to allow this to continue,” said Morton Rosenberg, who worked for the Congressional Research Service for more than three decades with a focus on investigative oversight. Rosenberg said courts have upheld Congress’ ability to enforce its own legislative powers going back hundreds of years.

Rosenberg himself drafted a proposed rule that would allow the House to fine someone $25,000 per day for not complying with a subpoena. If the official still didn’t comply, he or she could face criminal prosecution. Rosenberg said he’s had discussions with some Democrats in the House about his proposal but declined to say with whom.

The idea isn’t unprecedented. In the 1800s, Congress passed a resolution to arrest someone who had been accused of attempting to bribe a lawmaker, an action that the Supreme Court ultimately upheld.

Congress used to hold people found in contempt at a local jail. The jail was later torn down to make way for the Supreme Court building, said Irvin Nathan, who retired from the law firm Arnold & Porter as senior counsel and who was the House general counsel between 2007 and 2011.

Nathan said the House could pass a rule to impose fines without Senate approval. However, the departments the officials work for might end up being able to pay the fines out of the their own funds, rather than have the official be responsible, he said.

Nathan said the the House could more directly take Trump officials to court for not complying with subpoenas and to let the courts either fine or imprison those who don’t comply.

“A court is a neutral arbiter to demonstrate that there’s validity to the House’s request. If it’s just the sergeant-at-arms and unilateral action by the House, there’s a political price to pay for that,” Nathan said. The court process could take months, he added.

Congress could also attempt to cut appropriations to departments that aren’t complying with subpoenas or even to refuse to pay the salaries of officials they deem responsible, said Josh Chafetz, a law professor at Cornell University. He said it would be a “huge mistake” for Democrats to merely use the court system to try to scare the Trump administration into acceding to their demands.

“It just takes forever to go through the courts,” Chafetz said.

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