Can the Congress impose fines if the Trump administration witnesses do not testify?

May 10, 2019, 18:00 UTC

By Pete Williams and Julia Ainsley

WASHINGTON – Members of Congress are blowing through the archives for more than a century, looking for ways to compel reluctant witnesses to the Trump administration to testify, and to punish them for it. refuse.

Adam Schiff, D-Calif., Chairman of the House's Intelligence Committee, said Friday that if launching administration figures in a home prison was not an option, Congress could impose heavy pecuniary penalties.

"You can fine a person $ 25,000 a day until he complies," he said at an event sponsored by Axios. "We look at history and study law to make sure we are on solid ground."

The interest aroused by what is called the inherent power of Congress in contempt has suddenly become intense in Washington. Courts have long established that either House of Congress has the power to assemble reluctant witnesses and, if necessary, to throw them into detention cells until they agree to speak. But this authority has not been used for nearly a century and there is no more congress jail.

No one has ever been fined for refusing, by subpoena, a congressional application to appear before a committee or to provide documents for an investigation. But the fact that some members of Congress see it as an option is a testament to the frustration with existing methods, which are ineffective in compelling officials to appear or produce documents.

In modern times, the House and the Senate go to court when witnesses fail to comply with their subpoenas. If witnesses do not appear, US attorneys in Washington can be asked to initiate criminal proceedings. But prosecutors rarely follow when the witness is a member of cabinet or when the president has claimed the privilege of the executive.

Congress can also go to court alone and prosecute an unwilling witness, urging federal judges to arbitrate the dispute and force both parties to agree on ways to produce evidence. It works, but it's deeply slow. The House finally got some of the documents it was looking for for its investigation of the ATF Firearms Tracing Operation, known as Fast and Furious, after finding the Attorney General Eric Holder insulted the prosecutor and sued him in federal court in 2012.

It took seven years to fully argue the case, pointing out how coldly the courts are moving when they are called upon to settle disputes between the two other branches of government.

The Constitution does not expressly give Congress the power to enforce its subpoenas through criminal or civil actions. But as early as 1821, the US Supreme Court ruled that the House could imprison unprepared witnesses to protect its orderly functioning. A century later, in 1927, the Supreme Court upheld the Senate 's power to send his weapons sergeant to Ohio and to detain the brother of Attorney General Harry Daugherty at the same time. an investigation into the Teapot Dome scandal.

Congress must have a way to strengthen its investigative power, the court said. "Some means of restraint are essential to obtain what is needed", because simple requests are often ineffective and "information provided voluntarily is not always accurate or complete".

The office of the historian of the House said that the handful of people detained for contempt of court had "been held temporarily in the offices of the Sergeant-at-Arms, locked in the antechambers of a committee or placed under surveillance in local hotels ". Should Congress revive this practice, reluctant witnesses would likely be confined to Washington, DC prison.

It is one thing, however, to send the sergeant to look for the brother of the Attorney General or any other private citizen. It would be a different thing to ignore the security details of cabinet members in order to detain them.

The obviously impractical reasons for trying to detain witnesses of the Trump administration convicted of contempt led Schiff and others to consider other means of persuasion, such as the imposition of a fine. Such action has never been attempted before, so does Congress have the power to do it? The question is open.

In a 1881 case, the Supreme Court suggested that the power to punish contempt could include "a fine or a term of imprisonment". But it was a comment made casually. If the House tried to impose a fine, it would undoubtedly lead to a court battle.

Congress has successfully used the courts to imprison people for contempt. But his power to coerce government officials is limited. In a 2017 contempt power study, lawmaking attorney Todd Garvey of the Congressional Research Service wrote: "Efforts to punish a member of the executive power for failing to comply with the law. 39, a subpoena will probably be unsuccessful in many circumstances, even in most cases. Challenging government officials in a civil court may also be inappropriate "because of the time needed to reach a final and binding decision in the case," he said.

Despite everything, Schiff said that he thought the time was perhaps opportune to try something new. "If there must be this stone wall, we will have to consider extraordinary solutions."