WASHINGTON (AP) — Democrats have a lot of legal options, as well as the backing of the Constitution, as they push back on President Donald Trump’s pledge to fight “all of the subpoenas.”
But not all of the options are easy, or politically feasible.
Democratic leaders say they will have to fight on multiple fronts to obtain documents and witness interviews as the Trump administration stonewalls them. The White House is attempting to block witness interviews as well as efforts to obtain Trump’s tax returns and financial records, among other congressional requests.
“We will cross that bridge when we come to it,” said House Oversight and Reform Committee Chairman Elijah Cummings, who is trying to negotiate documents and witness interviews. “But I promise you we will cross it.”
A look at Democrats’ options:
CRIMINAL CONTEMPT REFERRAL
A criminal referral is the most common way to hold officials in contempt, and is usually the first recourse for congressional committees when a witness defies a subpoena or refuses to provide documents. But it has been largely ineffective and difficult to enforce in recent years.
A person can be held in contempt of Congress by a vote of the full House. The contempt resolution is then referred to the U.S. attorney for the District of Columbia, a Justice Department official who is likely to defend the administration’s interests. The U.S. attorney can decline to prosecute, and the contempt resolution reaches a dead end.
The current U.S. attorney in Washington, Jessie Liu, was nominated by Trump.
House Democrats could also file civil lawsuits against the administration — an option that has a greater chance for success, but that can take months or years to play out. Congressional Republicans filed a lawsuit against President Barack Obama’s attorney general, Eric Holder, in 2012, and the case was still pending when Obama left office in 2017.
Trump has jump-started some of the litigation on his own, with his business suing Cummings to block a subpoena that seeks years of the president’s financial records. Trump, his business and family also filed a lawsuit on Monday against Deutsche Bank and Capital One in an attempt to block congressional subpoenas seeking their banking and financial records.
ARREST OR IMPRISONMENT
The least likely option. Known as inherent contempt, Congress can try witnesses and even imprison them in the Capitol.
This process was often used in the country’s early years but hasn’t been employed in almost a century.
While Democrats have vowed to use all of the available legal tools, leaders have shown little interest in going that far.
While Democrats are unlikely to throw potential witnesses in a Capitol jail, they may find other ways to bring back the idea of Congress taking charge.
One of these could be fines. One Democratic member of the Oversight panel, Virginia Rep. Gerry Connolly, suggested last week on CNN that an idea up for discussion is fines of $25,000 a day for witnesses who don’t comply.
The fines could be viewed as a way to enforce Congress’ power of inherent contempt, but avoiding having to put someone in prison.
House Intelligence Committee Chairman Adam Schiff, D-Calif., suggested at a Washington Post event Tuesday that one way to hold government witnesses accountable would be to threaten their budgets. He said committees could “fence funding” until requests were satisfied.
“Congress will have to figure out how can we use our financial power, how can we use our other powers, to make sure we get answers to these legitimate questions,” Schiff said.
But the chairwoman of the House Appropriations Committee, New York Rep. Nita Lowey, seemed reluctant when asked earlier this month if she would consider cutting dollars for the Justice Department over full access to special counsel Robert Mueller’s report.
“The budget that I oversee and my colleagues oversee is for the American people,” said Lowey, adding that she wanted to make sure that “cops are on the street” and law enforcement is functioning.
Whatever happens in court, there is one power that Congress will always have — exerting political pressure on those who defy them.
Lawmakers can do this by finding related witnesses who may have related information, and by publicly criticizing the witnesses or entities who are denying them information. This can be particularly effective with people who no longer work for the Trump administration and want to protect themselves from legal fees and bad publicity.
“In the end it always comes down to the same thing — can you marshal the political pressure?” says Andrew Herman, a lawyer with the firm Miller Chevalier in Washington who has worked extensively with Congress.
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