House Democrats are planning to vote next week to empower committees to go to court to enforce their subpoenas, a move that will give committee chairmen a powerful tool to hold officials in contempt while bypassing the House floor.
The plan is likely to expedite Democrats’ efforts to fight the Trump administration in court over their subpoenas and could also help vulnerable Democratic lawmakers avoid repeated contempt votes on the House floor, although there are also concerns about implications of the precedent that’s being set.
The Democrats’ resolution next week to hold Attorney General William Barr and former White House counsel Don McGahn in contempt and take those cases to court will also include language stating that committees can move to hold officials in contempt of Congress, Majority Leader Steny Hoyer said this week. The resolution will also include language directing the House to petition the courts to obtain grand jury information contained in the Mueller report.
House Judiciary Chairman Jerry Nadler pushed for the move in recent weeks as House leadership decided to wait to hold a floor vote on contempt for Barr until they could package officials together. Now committees themselves would be empowered to use civil contempt citations to go to court to enforce their subpoena.
“I think it is regrettably very necessary because the degree to which the White House is meddling in our oversight, instructing witnesses not to appear, making overbroad and insupportable claims of privilege means we don’t want to have to go back to the House floor with every new act of obstruction,” House Intelligence Chairman Adam Schiff told CNN.
The resolution includes language for Democrats to pursue civil contempt in court against Barr and McGahn to enforce the subpoenas. It does not include a criminal contempt citation, which Democratic aides said was because criminal contempt of Congress citations are referred to the attorney general – one of the officials who would be held in contempt.
The resolution does not change the House rules, according to Democratic congressional aides, as it states that committees can bypass the floor and go to court with approval from the House’s Bipartisan Legal Advisory Group, which is made up of the three Democratic and two Republican House leaders. But the resolution effectively carries the voice of the full House, which could strengthen Democrats’ hand if they go to court to enforce subpoenas that weren’t voted on in the House.
The aides said the resolution was designed as a response to the Trump administration’s all-out stonewalling of their subpoenas.
The House Rules Committee is marking up the contempt resolution on Monday, and the House is likely to vote on the measure on Tuesday, the aides said.
The list of Democratic contempt citations could quickly grow. In addition to the House Judiciary Committee’s contempt citations, the House Oversight Committee is also preparing to vote to hold Barr and Commerce Secretary Wilbur Ross in contempt over subpoenas related to adding a citizenship question on the 2020 census. Schiff had previously threatened “enforcement action” against the Justice Department before he struck a deal for them to hand over a limited set of counterintelligence materials related to the Mueller report.
Hoyer said that the intention of the resolution, the text of which has not yet been released, was to “to cover the universe and address what I referred to as one of the largest cover ups of any administration that I can recall,” he told reporters.
But the change also could have ramifications that go beyond the House Democrats current war with the Trump administration, and some lawmakers raised concerns about the precedent it would set for the future.
“I understand the notion, but I don’t think they want to do it for future use,” said one Democrat. “It’s a powerful tool for a radical chairman in the future.”
Democratic lawmakers and aides say that the effort is tied to the simple fact that floor time is limited, and Democrats are likely to have numerous cases where they have to fight to enforce their subpoenas in court.
With court fights, timing is often everything.
Once a challenge is in court, it’s up to a judge how quickly a complaint gets handled. House court challenges over testimony and subpoenas in the past sometimes have gotten resolved in days or weeks, though it’s more typical to take months. In the case of executive privilege fights, litigation can drag along for years.
In recent weeks, lawyers for the House have accused Trump of attempting to use the courts to stall the fulfillment of House committee subpoenas — potentially even past the 2020 presidential election.
And Nadler has yet to go to court to try to enforce his panel’s subpoena for the full Mueller report and evidence until the House votes to hold Barr in contempt.
“The rationale is we have an unprecedented order from the President to the executive branch, which is to disrespect all lawful orders from Congress for witnesses and documents and testimony,” said Rep. Jamie Raskin, a Maryland Democrat. “So, we obviously don’t want to be tying up the floor every time someone disobeys a subpoena or refuses to turn over documents. So we have to delegate.”
Another added advantage for Democrats is that moving contempt only through committee avoids vulnerable Democrats already reticent about swirling impeachment talk from having to take repeated contempt votes on the floor.
Republicans accuse Democrats of using the tactic to appease their base that’s advocating for impeachment.
“The Democrats are so without a legislative agenda that now they’re having to just start bringing up contempt and all these to try to paint a picture because they can’t show anything fruitful to bring to their base, so now they’re just going to start having contempt hearings,” said Georgia Rep. Doug Collins, the top Republican on the Judiciary Committee.
It’s still unclear how the approach may affect House Democrats’ contempt arguments when they go before judges. Generally, courts are reluctant to step into fights between the executive branch and Congress. But at least twice previously, courts have overridden attempts by executive branch officials to avoid Congressional subpoenas.
“Clearly this is a prelude to more litigation, and arguably less centralization,” said Sam Dewey, a former House and Senate attorney who worked for Republican-led committees.
Committee chairmen have already obtained more powers in recent years when it comes to subpoenas, after House Republicans authorized many chairmen to unilaterally issue subpoenas after consulting with a panel’s ranking member.
House lawsuits over subpoenas are a relatively new tactic. The first such case came from the Judiciary Committee against former White House counsel Harriet Miers about a decade ago in the investigation of the Bush administration firing US attorneys, according to the Congressional Research Service. Special committees like during the Iran-Contra affair also have had the power to sue.
A Congressional Research Service report from 2017 cast some doubt on whether judges would entertain lawsuits from House committees without full House approval or a resolution.
“Absent such authorization, it appears that the courts will not entertain civil motions of any kind on behalf of Congress or its committees,” the report said.
This story has been updated with additional developments Thursday.