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What is Congress’s subpoena power?
The Supreme Court has ruled that the Constitution gives Congress broad authority to investigate matters of national interest as it considers what laws to pass.
That power “includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them,” justices have written. “It comprehends probes into departments of the federal government to expose corruption, inefficiency or waste.”
This oversight role, courts have said, includes the power to issue subpoenas compelling people and organizations to turn over documents or testify, even if they do not want to comply.
What can lawmakers do if someone defies a subpoena?
They can vote to hold someone who defies a subpoena in contempt of Congress. First, the committee that issued the subpoena would vote to recommend that step — the move the Judiciary Committee was considering on Wednesday — and then the full House of Representatives would vote on whether to do so. Just one chamber can do this, so it does not matter that Republicans control the Senate.
What is the punishment for contempt of Congress?
On paper, defying a congressional subpoena for testimony or documents is a misdemeanor crime, punishable by one to 12 months in jail. But in practice, this law is generally toothless in disputes between Congress and the executive branch. Invoking prosecutorial discretion, the Justice Department can decline to charge an official who defies a subpoena at the president’s direction.
Can Congress enforce a contempt citation on its own?
In theory, yes, but this is outdated. Historically, Congress has exercised “inherent contempt” authority to detain recalcitrant witnesses until the end of its session. But Congress has not tried to use that authority since 1935.
Congress lacks any prison for holding someone in long-term detention, and trying to use its limited security forces to arrest an executive branch official could provoke a dangerous standoff. While some lawmakers have talked about instead imposing a fine, there is no precedent for that, according to the Congressional Research Service, and it is not clear how the House could enforce that penalty.
What about going to court?
Congress could ask a federal judge to enforce its subpoena — and declare witnesses who defy any judicial order to provide the information to Congress in contempt of court. If the Justice Department declines to prosecute someone for contempt of court, judges can appoint special prosecutors to bring the case instead. Still, Mr. Trump could pre-emptively pardon such defendants.
Is Congress’s subpoena power unlimited?
No. For one thing, the Supreme Court has saidthere must be a link between the information and a legitimate task of Congress, like weighing whether a new law is needed. Lawmakers cannot use their subpoena power and expose private affairs simply to aggrandize investigators or punish a target.
What are other limits on Congress’s power?
Even if lawmakers are conducting a legitimate investigation, it is not a crime to defy a subpoena if there is a legal basis to do so. For example, it is not a crime to refuse to answer questions under one’s Fifth Amendment right against self-incrimination.
What about executive privilege?
A valid assertion of executive privilege by the president can also provide a basis to lawfully defy a subpoena, so Mr. Trump’s invocation of it gives Mr. Barr an argument and a shield as the matter moves toward a likely court fight.
The Supreme Court has ruled that presidents have the authority keep secret certain internal communications, including discussions with aides about how to carry out their constitutional duties. The lines are murky between where Congress’s power stops and the president’s begins, in part because such disputes are usually resolved through compromises rather than definitive rulings.
Notably, judges have said they want to see the two branches engage in good-faith negotiations to find a compromise that accommodates the constitutional needs of each, so Mr. Trump’s overt stonewalling may undermine the executive branch’s position when some of these disputes get into court.
But in the exchange of letters between the Trump administration and the Judiciary Committee leading up to Wednesday’s vote and invocation, the executive branch argued that it was trying to make accommodations in good faith about the Mueller report, so it was Congress that was being unreasonable.
The Trump administration had offered to let a small number of congressional leaders read a less-redacted version of the report that would permit them to see information related to, for example, ongoing investigations and cases, although not the grand-jury material.
But the Justice Department insisted that they sign nondisclosure agreements and take no notes away with them, so they would not be able to discuss what they saw even with other members of the Judiciary Committee. Democrats said that offer was insufficient.
