Alex Wong/Getty Photos
Each president in historical past has refused to reveal info to Congress. These refusals are so commonplace that there’s not even a complete itemizing of how typically they happen.
In simply the most recent incident, the Home of Representatives voted to carry former Trump adviser Steve Bannon in contempt of Congress in mid-October 2021. At Trump’s request, Bannon defied a subpoena from the committee investigating the Capitol revolt, refusing to testify.
The Home vote captured the fixed energy battle between presidents and Congress.
The latest eruption of this battle between the 2 branches of presidency over entry to presidential info raises questions concerning the constitutional authority of Congress and the way lawmakers purchase the data wanted to carry the chief department accountable within the U.S. system of separation of powers.
Alex Wong/Getty Photos
Energy to research
No constitutional provision explicitly states that Congress has the authority to research issues or defects within the nation’s social, financial or political programs. However the legislature’s energy to amass info by way of investigation is a longtime a part of consultant democracy.
That is true whatever the investigation’s finish end result and even whether or not critics accuse Congress of being partisan. Because the Supreme Courtroom put it in 1975, democratic governance implies that some investigations could also be nonproductive. In “occasions of political ardour,” the court docket stated, “dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed.”
Over 200 years of Supreme Courtroom precedent additionally acknowledges that the basic proper of Congress to research consists of the ability of subpoena, which compels testimony by a person or requires them to supply proof.
However the energy of subpoena is of little worth with out the flexibility to implement it. That mechanism known as contempt.
How contempt works
If a goal of a congressional investigation refuses to adjust to a subpoena, Congress can maintain the person in contempt. There are three types of contempt – inherent, civil and legal – every of which depends on a special department of presidency for enforcement.
Congress has its personal energy to implement a subpoena. Nevertheless, to make use of that energy, Congress has to conduct a trial after which discover the person in contempt. As a result of this course of is prolonged and cumbersome, Congress has not used it because the Nineteen Thirties.
Congress may ask the courts to declare a person in contempt. Referred to as civil contempt, this methodology requires a decision authorizing a congressional committee or the Home normal counsel’s workplace to file a civil lawsuit. The courts then decide whether or not Congress has the precise to the data it has demanded.
Congress used this energy up to now three presidential administrations – Bush, Obama and Trump – to amass info.
Nevertheless, civil contempt can be gradual transferring. For instance, Congress held Legal professional Normal Eric Holder in civil contempt in 2012 for withholding info regarding Operation Quick and Livid, a Division of Justice coverage that allowed sure unlawful gun gross sales to be able to monitor Mexican drug cartels. Congress ultimately obtained some data, but it surely took seven years for courts to achieve a settlement.
The final type of contempt depends on the chief department – particularly the Division of Justice and U.S. attorneys – for enforcement. If somebody refuses to testify or produce paperwork, a congressional committee can first cite the person in legal contempt after which ask its chamber of Congress to undertake a decision affirming the committee’s choice. After that decision, the Division of Justice and U.S. attorneys resolve whether or not to pursue the matter in court docket.
Prison contempt is what the Home used within the Bannon case.
In June 2021, the Home of Representatives established a choose committee to research the details and circumstances surrounding the Jan. 6 assault on the Capitol. As a part of the choose committee’s investigation, committee Chairman Bennie Thompson signed a subpoena requiring Bannon to supply paperwork by Oct. 7 and to look for a deposition on Oct. 14.
In response to the subpoena, former President Trump instructed Bannon, his former aide, to not comply.
Bannon refused to offer a single doc or seem for his deposition, citing Trump’s directive.
The choose committee then issued a report recommending that the Home maintain Bannon in legal contempt. On Oct. 21, the Home agreed with the committee’s advice and adopted a decision discovering Bannon in contempt.
Home Speaker Nancy Pelosi formally licensed the contempt report and referred it to the Division of Justice this week. The division will now resolve whether or not to prosecute the case.
Legal professional Normal Merrick Garland stated that the division “will apply the details and the legislation” when making this choice.
Win McNamee/Getty Photos
Whereas Bannon’s failure to adjust to the congressional subpoena is placing, he wanted to take action to problem the subpoena.
To legally contest a congressional request for info, a person first should refuse to conform after which, if held in legal contempt, can present a protection.
Bannon’s protection – and Trump’s instruction to not present info to Congress – facilities on the idea of government privilege. Since President George Washington, government officers have claimed the flexibility to withhold sure info that’s elementary to the operation of presidency. These claims relate to the concept that confidentiality encourages candor amongst presidents and their advisers when making vital governmental selections and insurance policies.
In a letter to Bannon and three others below congressional investigation, Trump’s lawyer stated they’re shielded from compelled disclosure “by the chief and different privileges, together with amongst others the presidential communications, deliberative course of, and attorney-client privileges.”
Presidents and their advisers have at all times interpreted government privilege broadly. Nevertheless, President Trump and his advisers have taken an much more expansive view than earlier administrations.
My very own analysis means that Trump and his advisers have asserted this privilege in at the very least 84 totally different federal instances. In distinction, in Obama’s first time period, solely 37 federal instances concerned government privilege claims. The claims in each administrations have been made in a variety of instances, from Freedom of Data Act lawsuits to lawsuits over company actions.
Courts have acknowledged that instances over congressional entry to info inevitably power the judiciary to facet with one department over the opposite. But, courts acknowledge the necessity to arbitrate disputes ensuing from congressional investigations, notably when these investigations might implicate presidential misconduct or legal exercise.
No less than 14 presidential administrations have been the topic of investigations that required sitting or former presidents and their advisers to supply proof. Authorized disputes over these investigations have hardly ever made it to court docket.
However Bannon has made it clear that he is not going to cooperate with Congress till the judiciary steps in.
How the courts deal with the matter could have implications for the way Congress holds present and future presidential administrations accountable.
[Get The Conversation’s most important politics headlines, in our Politics Weekly newsletter.]
Jennifer L. Selin has acquired funding and/or assist for her analysis on Congress and the chief department from the Heart for Efficient Lawmaking, Dirksen Congressional Heart, Kinder Institute on Constitutional Democracy, and Levin Heart at Wayne Regulation.