WASHINGTON — Members of Congress are blowing the dust off records more than a century old, looking for ways to compel reluctant Trump administration witnesses to testify — and to punish them if they refuse.
Rep. Adam Schiff, D-Calif., chairman of the House Intelligence Committee, said Friday that if throwing administration figures into a House-run jail isn't an option, Congress could impose big monetary penalties.
"You could fine someone $25,000 a day until they comply," he said at an event sponsored by Axios. "We're looking through the history and studying the law to make sure we're on solid ground."
Interest in what's known as the inherent contempt power of Congress is suddenly intense in Washington. The courts have long established that either house of Congress has the power to round up reluctant witnesses and, if necessary, throw them into holding cells until they agree to talk. But that authority hasn't been used in nearly a century, and there's no longer any congressional jail.
No one has ever been fined for refusing a congressional demand, by subpoena, to appear before a committee or to provide documents for an investigation. But the fact that some in Congress are considering it as an option is a sign of the frustration over existing methods, which are ineffective for compelling administration officials to appear or produce documents.
In modern times, the House and Senate go to court when witnesses fail to comply with their subpoenas. If witnesses fail to appear, the U.S. attorney in Washington can be asked to bring criminal charges. But prosecutors seldom follow through when the witness is a Cabinet memberor when the president has asserted executive privilege.
Congress can also go to court on its own and sue a reluctant witness, urging federal judges to referee the dispute and force the two sides to come to an accommodation on producing evidence. It works, but it is profoundly slow. The House eventually got some of the documents it sought for its investigation of ATF's botched gun-tracing operation known as Fast and Furious after finding Attorney General Eric Holder in contempt and suing him in federal court in 2012.
It took seven years to fully litigate that case, underscoring how glacially the courts often move when called upon to settle disputes between the other two branches of government.
The Constitution does not expressly give Congress the authority to enforce its subpoenas through criminal or civil actions. But as early as 1821, the U.S. Supreme Court said that the House could imprison unwilling witnesses in order to protect its orderly functioning. A century later, in 1927, the Supreme Court upheld the authority of the Senate to dispatch its sergeant-at-arms to Ohio and detain the brother of Attorney General Harry Daugherty during an investigation of the Teapot Dome scandal.
Congress must have a way to enforce its power of inquiry, the court said. "Some means of compulsion are essential to obtain what is needed" because mere requests are often ineffective and "information which is volunteered is not always accurate or complete."
The House historian's office says the handful of people detained for contempt were "held temporarily in the offices of the sergeant-at-arms, locked in committee anterooms, or put under guard at local hotels." If Congress were ever to revive this practice, reluctant witnesses would likely be confined in the Washington, D.C., jail.
It's one thing, however, to send the sergeant-at-arms to pick up the attorney general's brother or any other private citizen. It would be quite another to get past the security details of Cabinet members in order to take them into custody.
The obvious impracticalities of trying to detain Trump administration witnesses found in contempt have led Schiff and others to consider alternate means of persuasion, such as imposing a fine. Such an action has never been tried before, so whether Congress has the authority to do so is an open question.
In an 1881 case, the Supreme Court suggested that the power to punish for contempt might include "fine or imprisonment." But it was a comment made in passing. If the House tried to impose a fine, it would undoubtedly lead to a court fight.
Congress has successfully used the courts to imprison people for contempt. But its power to compel government officials is limited. In a 2017 study of the contempt power, legislative attorney Todd Garvey of the Congressional Research Service wrote, "Efforts to punish an executive branch official for non-compliance with a subpoena will likely prove unavailing in many, if not most, circumstances." Suing government officials in civil court may also prove inadequate "due to the time required to achieve a final, enforceable ruling in the case," he said.
Even so, Schiff said he believes the time may be right for trying something new. "If there is going to be this across-the-board stonewalling, we are going to have to consider extraordinary remedies."