Lots of people are going nuts on Twitter, for the usual reasons:
Why didn’t Jerry Nadler and the Judiciary Committee Dems hold Lewandowski in contempt, have him handcuffed and hauled out of the chambers?
And today, when news came that the Judiciary Committee was preparing a contempt citation for Lewandowski, one hysterical critic called them “feckless.”
Wait, I’m not getting that. They’re “feckless” for planning to do what everyone wants them to do? What’s the problem — that they didn’t have Lewandowski handcuffed and dragged out instantly?
This has made me curious about what exactly contempt is and how it must be applied. So I looked it up on the National Constitution Center website. Here’s what gives with contempt:
Based on precedent, statutes, and court rulings, the House and the Senate each have the power to invoke three types of contempt proceedings if a committee believes someone is obstructing its investigative powers.
OK, so the House Judiciary Committee does have the power. What’s next?
The Congressional Research Service described each of these powers in a detailed March 2019 report. The first type of contempt power is a citation of criminal contempt of Congress. This power comes from a statute passed by Congress in 1857. Once a committee rules that an act of criminal contempt has occurred, the Speaker of the House or Senate President refers the matter to the appropriate U.S. attorney’s office, “whose duty it shall be to bring the matter before the grand jury for its action.” However, the Executive Branch in prior situations has claimed that it has the discretion to decide if a grand jury should be convened to hear the charges. But if the case goes to a grand jury, fines and a jail term could result from the ensuing criminal prosecution.
So, a citation of criminal contempt — and I’m not sure whether Lewandowski’s behavior would be legally considered criminal — would be referred to the appropriate, presumably local, U.S. attorney’s office., headed by a Trump appointee. Whose boss is Bill Barr. And that “detailed March 2019 report” says that action on a Congressionally issued criminal complaint is controlled by the Executive Branch.
Ergo, a criminal contempt citation is a no-go in these lawless times. Moreover, since Lewandowski did comply with the subpoena, I’m not sure a criminal contempt applies. He did answer questions, even if he bounced a lot of them back to the so-called nonsense instructions he received about not answering questions involving conversations within the White House.
So, if that’s the first type of contempt, let’s go on to the second:
The second type of contempt power comes in the form of a civil lawsuit brought by the House or Senate, asking a court to enforce a subpoena. The Senate and its committees are authorized to bring such a lawsuit under a federal statute. There is no similar statute that applies in the House, but the federal district court in Washington, D.C. has decided that the House can nevertheless authorize its committees to bring a similar civil suit for enforcement of a subpoena. In either case, an executive branch member can contest the subpoena “based on a governmental privilege or objection the assertion of which has been authorized by the executive branch of the Federal Government,” the CRS said.
The House Judiciary Committee would have to bring a civil lawsuit — but for enforcement of a subpoena. Lewandowski did appear in response to the subpoena, so this kind of action might have to be against Dearborn and Porter, the two men who did not appear, and/or against the White House’s “governmental privilege or objection…authorized by the Executive Branch.”
That is, this absurd “theory” of privilege probably has to go to the courts in any case.
The third type of contempt power—Congress’s dormant inherent contempt power—is rarely used in modern times. Inherent contempt was the mode employed by Congress to directly enforce contempt rulings under its own constitutional authority until criminal and civil contempt statutes were passed, and it remained in use into the twentieth century. Under inherent contempt proceedings, the House or Senate has its Sergeant-At-Arms, or deputy, take a person into custody for proceedings to be held in Congress.
Right, so here’s the handcuff ’em, drag ’em out and throw ’em into lock-up and then into the House chamber method. Except, according to this paragraph, it’s an oldie and not goody — because criminal and civil contempt statutes were passed, i.e., superseding the dramatic 19th century handcuff ’em, etc. move.
I know everyone has a different way of looking at this and while it’d be a HUGE muscled deal to drag these people in or out of the House, I don’t know what it’d get us all, except vicious delight. Would it advance the cause of impeachment?
I don’t think so. It’d just be a concession to furious voters who want to see the violence of Trump’s administration answered by violence from Democrats.
When you have a heavy responsibility to restore the rule of law to a singularly lawless government, I don’t think violence — even legal violence — will answer.