President Trump’s defiance of congressional subpoenas— “to fight them all”—represents a profound and unprecedented threat to constitutional government and the rule of law. Trump’s contumacy, if successful, would create a moat around the White House, rendering the president inaccessible and unaccountable to the first branch of government, and shackling the legislature’s constitutional powers of investigation and oversight, bringing executive power to an authoritarian pitch.
Thus far, federal courts, called on to adjudicate this standoff, have rightly upheld the far-reaching power of congressional committees to investigate the executive branch, including presidential abuse of power. Courts in New York and Washington, D.C. have rejected Trump’s efforts to block subpoenas, designed to disclose the president’s financial records.
But we cannot rely on the judiciary alone to rein in the administration; after all, courts are limited to review of claims on a case-by-case basis. Judicial review of the mounting acts of defiance of subpoenas to administration officials, and former aides and advisors, could take many months, perhaps years, precisely what President Trump is counting on, as he pursues a strategy of slow-walking the legal process, well into the 2020 election.
Trump’s attacks on, and contempt for, America’s independent judiciary, a much admired institution among scholars and commentators across the world, may presage a deepening constitutional crisis. After all, we have no guaranteed that Trump would comply with a court order to turn over records subpoenaed by the House of Representatives.
It is for that reason, in addition to defending its own institutional integrity, checks and balances, the rule of law and the compelling national need to move forward with investigations, that the House must exercise its foundational power to enforce its subpoenas and contempt citations. Congress, in short, Congress must resort to self-preservation by tasking its sergeant-at-arms to arrest those held in contempt by Congress.
In 1821, in Anderson v. Dunn, the U.S. Supreme Court upheld the power of the Speaker of the House, Henry Clay, to order the Sergeant-at-Arms to arrest a citizen who had had been held in contempt for violating the rules of the House by attempting to bribe a member of Congress. The House, the Court held, possessed the authority to protect its institution and rules. The contemnor, duly arrested, despite groundless assertions of assault and battery, and false imprisonment, was brought to the bar of the House, found guilty, reprimanded, and released from custody.
The House of Representatives need not await judicial rulings weighing in on those whom it holds in contempt. Its contempt power is owed the same respect paid to judicial findings of contempt. Congress has the undoubted authority to punish contempt actions by the simple process, upheld by the courts, of ordering the Sergeant-at-Arms to seize the offender and place him in the District of Columbia common jail or the guardroom of the capitol police.
Is that harsh? Not at all, not in our time. The Department of Justice is led by an Attorney General, William Barr, who has become an apologist for President Trump and is unlikely to heed a congressional request to take a contemnor into custody. And the courts, however dutifully they perform their responsibilities, are likely to be slow-walked by an administration that has demonstrated its disinterest in the rule of law.
An order to the Sergeant-at Arms by Speaker of the House, Nancy Pelosi, like her predecessor, Henry Clay, to take into custody those current and former members of the Trump Administration who refuse to comply with congressional subpoenas, will sound a resounding message: this is what is necessary in the Trump Era to defend constitutional government and the rule of law.