House Republicans Hoisted on Their Own Subpoena Defiance Petard
Promised investigations of Biden administration will be DOA
House Republicans have pledged to investigate every nook and cranny of the Biden administration seeking evidence that law enforcement has degenerated into a jumble of partisan political calculations without ulterior motives.
But they have shot themselves in the foot already by serial defiance of congressional subpoenas with impunity in earlier Congresses. With these voluminous precedents, is it surprising that the Department of Justice recently told Congressman Jim Jordan (R-OH), Chairman of the House Judiciary Committee, to go fly a kite in response to his letter asking for information on immigration enforcement on the southern border, investigations into threats against school boards, and the special counsel’s investigation of former President Donald Trump’s mishandling or destruction of presidential classified documents at Mar-a-Lago?
Chairman Jordan armed the Department with his own precedent. He balked at complying with a subpoena issued by the House Select Committee to Investigate the January 6th Attack on the Capitol. Mr. Jordan’s defiance was not isolated. Four of his colleagues followed suit: Scott Perry (R-PA), Kevin McCarthy (R-CA), Andy Biggs (R-ARIZ), and Mo Brooks (R-ALA).
These examples were no Republican Party aberrations. The Trump administration defied hundreds of congressional subpoenas or requests for information with impunity. Oversight by congressional Democrats in the 117th Congress was stillborn. President Biden can be expected to equal or better the instruction of Mr. Trump in ignoring or evading compliance with congressional subpoenas or requests for information.
Indeed, both parties have conspired to turn congressional oversight into a farce by unilaterally surrendering the inherent contempt power indispensable to subpoena enforcement. The Supreme Court held in McGrain v. Daugherty (1927) that Congress may invoke that constitutional authority to immediately imprison, fine, or otherwise sanction defiance of a congressional subpoena without first receiving judicial approval. Time is of the essence in subpoena enforcement. What is politically explosive or compelling constantly changes like a human weather vane. Litigation, in contrast to inherent contempt, is lead-footed. It seldom if ever concludes before information sought via subpoena has become politically stale or moot.
Take the House Judiciary Committee’s litigation against White House advisors Karl Rove, Harriet Miers, and Josh Bolton under President George W. Bush. to compel testimony or document production about the industrial scale firings of United States Attorneys. The Committee prevailed before the United States District Court for the District of Columbia, but the time expired on subpoena enforcement before a ruling by the United States Court of Appeals for the District of Columbia Circuit. All House subpoenas expire with the 2-year expiration of the Congress which issued them.
Defying a congressional subpoena is also a crime. But do you think the U.S. Department of Justice would prosecute itself for defying a subpoena or request for information lodged by Chairman Jordan? A Republican-controlled House made a criminal referral to the Department of Justice of then Attorney General Eric Holder for flouting a subpoena. Is it surprising that Mr. Holder chose not to prosecute himself.
The bipartisan unilateral surrender of congressional inherent contempt power has reduced oversight or investigations into sound and fury signifying nothing. The bipartisanship is born of fear that a substantial percentage of members of both parties have skeletons in their closets that they wish to conceal. Republicans and Democrats alike are terrified at inherent contempt power because it could be turned against them or their party.
House Republican investigations of the Biden administration will assuredly shipwreck on claims of executive privilege, state secrets, grand jury secrecy, intramural confidentiality, separation of powers, illicit congressional motives, or otherwise. House Republicans have disarmed themselves of the power necessary to prevent the shipwreck.
Crocodile tears will thus be in order when they become infuriated like King Lear on the heath at their stiff-arming by President Biden.