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Inherent Contempt-- A Guest Post By Ted W. Lieu




With Joe Biden’s decisive victory, many people in our country-- at least 78 million and counting-- are breathing a sigh of relief. Soon we can say goodbye to wall-to-wall coverage of lies spewed from the press briefing room; the corrupt activity of Trump and his associates; and the uncertainty about whether to trust the word of a government official, or a misbegotten tweet from the President. 

We still have a very real and dangerous pandemic to contend with-- and the economic implications of months of inaction on the part of the White House to get this outbreak under control. But soon we’ll have scientists, doctors and experts advising the President, and I'm confident that our country will be in capable hands. We also must contend with the reckoning over our country’s racism that came to bear this summer. But in January, we'll have a President committed to addressing institutional challenges instead of one that revels in the support of white supremacists. 

In the past four years, so many people, in spite of the failures of the executive branch, showed their unwavering commitment to our country by protesting, by voting and by finding other ways to make sure that our future looks brighter than our past. I am heartened by the possibilities of advancing a progressive agenda to address issues like climate change, healthcare, and our crumbling infrastructure. I absolutely share Joe Biden’s goal of unifying the country. But the Trump Administration’s malfeasance exposed institutional problems within our government-- and one election cannot solve that.

Trump’s Presidency showed us how reliant we are on norms, instead of laws, to guide good governance. Whether it was Hatch Act violations or ignoring the foreign emoluments clause, the President found new and inventive ways to breach the public’s trust. In the course of conducting oversight of these behaviors, what became glaringly obvious to me, as a legislator, is just how much authority Congress had ceded to the Executive Branch. Over decades, Congress trusted that, despite political differences, there would still be a modicum of respect for our institutions and the purposes they serve between branches of government. We assumed a certain level of respect for the American public. Trump proved that to be a naïve way of thinking.

Few concerns exemplify that more than this Administration’s officials refusing to come before Congress, subpoenaed or not. The result has been one of the most lawless administrations in our nation’s history-- one that has balked at the idea of congressional oversight and accountability. Administration officials constantly undermined Congress’ role as an equal branch of government when they refused to answer any questions about policy decisions, misconduct, and potential illegal activity.

Repeatedly, our lawful and reasonable congressional subpoenas were met with defiance and litigation. The House is still in court over a number of subpoenas – including ones that predated the impeachment hearings last fall. The American people still haven’t heard from former White House Counsel Don McGahn on the President’s requests to fire the Special Counsel, or from former White House Chief of Staff Mick Mulvaney on the President’s efforts to extort our allies, or from Commerce Secretary Wilbur Ross on why he is stopping the Census count early. If we can’t have officials come before Congress and answer questions, how can the American people know their government is working for them? That’s why, this summer I led a group of Members on the Judiciary Committee in introducing an amendment to the House rules to revive a long dormant power that can compel witnesses to face the light: Congress’ inherent contempt authority. 

Congress has long held the power of inherent contempt-- meaning instead of spending years litigating subpoena enforcement, each chamber can find individuals in contempt of Congress and impose real costs for hiding from the public behind illogical and bad faith arguments about immunity. Our resolution gives the House the ability to levy penalties on officials who defy congressional subpoenas. I believe reasserting Congress’ inherent contempt power is the only way to ensure our tradition of government’s accountability to the people is upheld.

Inherent contempt is not a novel concept. In fact, Congress’s inherent contempt powers were used regularly up until WWII. But our democracy has never had a president like Donald Trump. After Democrats won the majority in the House, Trump made the unprecedented decision to direct nearly all agency officials to disregard all congressional subpoenas on all matters. That flagrant act of partisanship made doing our jobs that much harder. Key figures in the administration decided that fake assertions of “absolute immunity” could shield them from answering to the American people. 

It doesn’t matter if the President is a Democrat or a Republican-- Congress has a duty to represent the American people’s interests and we need the capabilities to do it. Even under President Biden, it is my hope that we’ll amend the House rules to fortify our inherent contempt powers and ensure the House has the ability to conduct its oversight duties. 

Checks and balances keep our Democracy healthy-- and ensure that power doesn’t shift too far in one direction. This is true regardless of who is in power, but became abundantly clear under Trump. There are numerous lessons we can learn from Trump’s time in office. One is that a President should not spend his or her whole day watching Fox News. Another is that our institutions are only as strong as the people willing to defend them.

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