SUBPOENA? DON’T MAKE ME LAUGH!

 

One of the many rules of civilized government for which the former Trump administration has demonstrated authoritarian disdain is the power of Congress to subpoena both material evidence and witness testimony pertaining to the investigations of its committees and subcommittees. A hallmark of the Trump regime’s former and continuing authoritarianism has been its utter disdain for the three-branch system of checks and balances to guarantee the integrity of representative democracy.

And nowhere has that disdain been more derisive than in the refusal of Trump administration officials and former Trump aides to comply with congressional subpoenas. Indeed, Trump’s attorney general (clearly Trump’s, not the nation’s) William Barr scoffed at threats by Speaker of the House Nancy Pelosi to cite Trump officials including himself for contempt of Congress, actually daring her to go ahead. It was a “make my day moment” for a Justice Department placed by its chief at the service of one man rather than that of the nation.

The fact is that, up to the time of this new era of anti-democratic decay, mutual compliance among the three branches of government has been largely based on common respect and on everyone’s being on the same page when it came to the importance of maintaining the sanctity of the democratic process. And the forty-four men who preceded Trump in office, though some more compliant than others, understood that, in the end, the main duty of their administrations was to protect and serve the democratic institutions on which the United States was founded. In short, to hold sacred the provisions of the US Constitution. Not even Richard Nixon was willing to throw the baby out with the bathwater and resigned rather than face impeachment.

But the Trump era has been, and continues to be—since one would have to be an eternal optimist, or would have to live in a fantasy world even more clueless than that of “the base” itself, to think that the Trump era is over—the greatest test since the Civil War of American democracy’s resilience in the face of internal threats to its integrity. Trump and his political cohorts have shown utter disregard and disrespect for the Constitution and for the time-honored traditions of American democratic and patriotic zeal, even to the extent of flouting the most basic tradition of all: the peaceful transition of power and acceptance of the outcome of free and fair elections. They have gone beyond anything Americans could ever have imagined in their worst nightmares by actually seeking to incite and then seeking to excuse an insurrection aimed at toppling the established order. 

Anyone who is still asking if “we might be in danger of a constitutional crisis” isn’t paying attention. We are in the midst of one. We have been ever since the former president refused to concede his loss of the 2020 election and made the seditious decision to incite his followers to go to Congress and remind the vice president, in his role as president of the Senate, where his loyalties should lie—clearly not with the United States, but with Trump World.

The idea of any of the anti-democratic actors in Congress and in the Executive Branch who were behind the January Sixth Insurrection (which is how, if historians are honest, it should be remembered in the history of the United States) not just being cited for, but being convicted of contempt of Congress for refusing to obey a congressional subpoena seems naïve to say the least. Even prior to the Trump regime, compliance with congressional subpoenas was pretty much based on the honors system. And in Washington, the threat of someone’s being charged with contempt has been, over the last several decades, barely more of a deterrent to non-compliance than a parking ticket.

Congress in theory has the faculty to impose fines and jail-time for contempt. But the sergeant at arms no longer has a calaboose in the Capitol, and Congress hasn’t done so against a government official since the 1920s and 1930s, when those who were cited basically got a slap on the wrist. “Civilians” are another issue altogether. Congress famously jailed and fined members of the Hollywood acting, producing, directing and writing communities during the McCarthy communist witch-hunt in the mid-1900s, whenever those called to testify refused to go before Congress or refused to rat on their colleagues.

The sentencing of the Hollywood Ten to a year
in prison rocked Hollywood for years to come.

The most iconic case of that dark era in American politics was that of the so-called Hollywood Ten. In that case, the House voted 346 to 17 to cite ten Hollywood writers, directors, and producers for contempt. These ten men, including Albert Maltz, Dalton Trumbo, John Howard Lawson, Samuel Ornitz, Ring Lardner, Jr., Lester Cole, Alvah Bessie, Herbert Biberman, Edward Dmytryk, and Robert Adrian Scott, refused to cooperate at McCarthy’s anti-communist hearings, when the House Un-American Activities Committee was probing communist influence in the film industry.

Although the ten said in their defense that they were only defending their First Amendment right to free expression by refusing to answer inappropriate questioning about their political affiliations, the Supreme Court upheld the congressional contempt conviction and they were sentenced to a year in prison. This was clearly an abuse of congressional powers and a legal travesty that led to an unprecedented level of self-censorship in the motion picture industry and to the black-listing of anyone with even vaguely left-wing views. That climate of suspicion and terror lasted in Hollywood from the late 1940s until the 1960s, during which time dozens of lives and careers in the film industry were ruined.

But no such stricture has been in evidence within politicians’ own community for a very long time. This has probably been the case because issues among them are less about the law and legal procedures and more about not doing something to members of another party that they will be able to do back to you when their party is in charge. The great difference is, however, that while the so-called Red threat to American democracy was, by and large, manufactured in the fevered minds of far-right zealots, the threat to democracy that the country is facing today is quite real. It is, indeed, a clear and present danger to constitutional democracy.

Bannon

Getting down to brass tacks, this is what’s happening: The House Select Committee investigating the January Sixth Insurrection has sought to issue subpoenas to former Trump officials including former White House Chief of Staff Mark Meadows, Defense Department official Kash Patel, one-time White House adviser (and Trump Rasputin) Steve Bannon, and former Deputy Chief of Staff for Communications Dan Scavino, calling on them to testify regarding the events of January 6^th of this year. Trump has sent a letter to all of these men calling on them to simply ignore the subpoenas.

So far, none of them has complied with the subpoenas to hand over related documentation and they have now been scheduled to testify before the committee next week, after missing a documentation compliance deadline set for last Thursday. Scavino has, in fact, taken his former boss’s non-compliance order so seriously that he has been living like a fugitive, holing-up at an unknown location so that he can’t be served the subpoena.

Nor does Bannon’s claim of “executive privilege” hold water, because he had long since left the Trump administration by the time of the events of January 6, 2021, but was nevertheless alleged to have been in contact with the former president, encouraging him to push the storming of the Capitol.  

The watch word here, in general, is “privilege”, executive privilege to be precise, which Trump claims to still command and which he is invoking as the reason for urging his former aides not to comply with the probe. But does executive privilege apply in Trump’s case, or in the case of any former president?

While Trump sycophants are seeking to make a case for it, constitutional law experts apparently agree that Trump has no executive privilege. Privilege, in fact, doesn’t really belong to the president—any president—but is a faculty of the United States of America, which, as such, is only exercised by the current president. A former president may offer an opinion to the incumbent executive regarding questions of privilege during his former administration, but he has no power whatsoever to compel the current president to conserve that privilege, period. And even less so if that privilege is being used to cover up potentially criminal activities.

But here’s the rub. In modern times—or at least since the McCarthy era—Congress has all but relinquished its power to invoke its faculty for punishing “inherent contempt” directly, even though, under federal law, it can fine offenders up to a hundred thousand dollars and/or send them to prison for a year, instead referring any and all citations of criminal or civil contempt of Congress to the courts. The problem with that is that the legal procedures involved are notoriously slow.

McGahn - "Crazy shit"

For instance, when former Trump White House Attorney Don McGahn was subpoenaed to testify before Congress after it was revealed that he had told other Trump aides that he was refusing to do all of “the crazy shit” Trump was ordering him to do—including an attempt to sack special investigator Robert Mueller—Trump immediately invoked “executive privilege” and blocked the attorney from testifying in Mueller’s probe into Russian interference in the 2016 elections. The House sued to get McGahn to testify, but the ensuing legal battle bounced around in the courts for a total of 25 months before, finally, in June of this year, the attorney testified behind closed doors, far too late, obviously, to do any good in stopping Trump from doing even more “crazy shit”, as witnessed by the events of January 6^th.

This doesn’t bode well for getting former Trump aides to testify in the current probe, since the House is playing “beat the clock” with mid-term elections to take place in November of next year. Why? Because if the GOP manages to take over the House, which well they could, the January 6^th investigation will be dead in the water.

There are those, including Senate Majority Leader Chuck Schumer, who want to bring back undiluted “inherent contempt” action in Congress. And constitutional experts indicate that the only thing keeping that from happening is majority will.

Constitutional law expert Kia Rahnama has written: “…(T)here is clear legal precedent that all but endorses such power. The Supreme Court has consistently analogized between the congressional contempt power and the judiciary’s contempt power. For example, in McGrain v Daugherty (1927) the (Supreme) Court was asked to review whether an unsworn committee report could form the basis for a warrant issued by a Senate investigation subcommittee; the Court agreed that Congress had that power because the courts of law followed the same practice. In Juney v McCracken (1935), the Supreme Court clearly stated that the power of Congress to punish for contempt is ‘governed by the same principles as the power of the judiciary to punish for contempt.’ Similarly, in Kilbourn v Thompson (1880)—concerning Congress’s impeachment powers, which follow the same quasi-judicial procedures as contempt proceedings—the Supreme Court stated that Congress should be able to conduct investigations ‘in the same manner and by the use of the same means that courts of justice can in like cases.’ The Court then, in dicta, stated that this would logically give Congress the power to punish by ‘fine or imprisonment,’ the same options being available to courts.”

The only question, then, appears to be, will Democrats in general and the Biden administration and attorney general’s office in particular, make the hard decisions necessary to get democracy back on track, and quite possibly save the United States from authoritarianism, at the possible expense of their political careers? Or will they dissemble, as they have to date, in the face of Donald Trump’s assault on democracy and of the authoritarian designs at work in the GOP?