By Michael Conway, Former counsel, U.S. House Judiciary Committee
The House Judiciary Committee grappled 45 years ago with the same thorny issue that it faces this week: how to respond to an executive branch defiantly refusing to comply with congressional subpoenas.
That committee is currently dealing with the Trump administration’s refusal to comply with its subpoena for the unredacted report (and its supporting documents) of special counsel Robert Mueller and contemplating issuing one to compel the testimony of Attorney General William Barr, who refused an invitation to testify on Thursday.
The Watergate congressional investigators, however, had a card that the current Congress lacks, as the 1974 committee’s subpoena for President Richard Nixon’s tapes was part of an impeachment inquiry of the president.
Because the current Congress has not authorized an impeachment inquiry, the ability of the House to enforce its subpoenas or to punish Barr is sharply circumscribed. History affords Congress maximum power only when it is investigating a possible impeachment. The 1974 staff report bluntly stated, “The Supreme Court has contrasted the broad scope of the inquiry power of the House in impeachment proceedings with its more confined scope in legislative investigations.”
Embracing its unique constitutional role to check an out-of-control executive branch by using its impeachment power against either President Donald Trump, Barr or both will be the sole way to guarantee that Congress can enforce its subpoenas.
Only by instituting an impeachment proceeding will Congress be equipped to act on the evidence that Mueller intended to convey to it. And by not acting, a dangerous precedent will be set, relegating Congress to subservience to the president as a forever-unequal branch of government.
House Speaker Nancy Pelosi and today’s congressional leaders can find guidance from the actions of Congress during Watergate.
On April 11, 1974 — following the February vote by the full House to authorize an impeachment inquiry — the Judiciary Committee issued a subpoena, seeking White House tapes, transcripts, notes and memoranda relating to 147 conversations in which investigators believed that the president and his aides discussed, among other things, the Watergate burglary and its cover-up. Nixon, of course, refused.
In a report that same day, committee lawyers identified three potential remedies if Nixon did not comply with the committee’s subpoena, while explaining that “each of these methods presents problems.”
First, Congress “has the power to hold in contempt a person who has disobeyed its subpoena,” or, to a lesser degree, the House can reprimand or censure the recalcitrant witness. A contempt finding, however, requires an affirmative vote of the entire House.
If the subpoenaed party today — Barr — does not produce the requested documents or justify to Congress grounds for nondisclosure, the House could find him in contempt and order him arrested for the duration of the current term of Congress ending in January 2021 or until the party complies with the subpoena.
The last time Congress did that, however, was in 1935.
Recognizing in 1974 the impracticability of arresting Nixon, the staff report offered a second option: seeking a court order to enforce compliance. However, the co-equal nature of the executive, legislative and judicial branches raised a constitutional problem with seeking relief in court, suggesting, “it may be thought inappropriate to seek the aid of the judicial branch in exercising these powers.”
And, the staff added, seeking either criminal or civil relief for presidential noncompliance would “pose a number of problems for this inquiry, including delay, the uncertainty of relying upon the executive branch to prosecute the chief executive, and doubt whether an incumbent president may be prosecuted for a criminal offense before his impeachment and removal from office.” (This would certainly be applicable today, as any effort to compel compliance could well be tied up in court beyond the 2020 elections.)
The staff finally noted that noncompliance itself might be evidence in an impeachment proceeding.
Still, on April 30, 1974, Nixon attempted to blunt the impact of his intransigence toward both the committee and the second special prosecutor by making a televised address to the nation in which he displayed stacks of binders containing edited transcripts of 33 White House tapes to be delivered to the Judiciary Committee.
The committee then wrote Nixon on May 1 that he had not complied with its subpoena, but — in keeping with the committee’s report on the difficulties of forcing compliance — a motion that day to recommend to the House that Nixon be found in contempt was defeated 32-5.
In opposing the motion to recommend holding Nixon in contempt, then-Judiciary Committee Chairman Peter Rodino said: “We can consider the noncompliance of the president when we are considering the question of possible grounds of impeachment.”
The chairman’s words were prophetic: As an independent ground for impeachment, Article III held that Nixon should be impeached for refusing to produce tapes and records and thereby interfering with congressional exercise of its power of impeachment mandated by the constitution. That article was approved by a vote of 21-17 in July.
In its final report to the House in 1974, the committee explained why a president should be impeached for defying its subpoenas: “Unless the defiance of the committee’s subpoenas under these circumstances is considered grounds for impeachment, it is difficult to conceive of any president acknowledging that he is obligated to supply the relevant evidence necessary for Congress to exercise its constitutional responsibility in an impeachment proceeding.”
In 2019, the committee’s warning about what a future president may do has come to pass. Congress must act decisively to preserve its constitutional authority.