Contempt of Congress

The US Attorney General perhaps didn’t perjure himself this week, at least not within the very limited scope of the statute, but he removed any shred of ambiguity about his role and purpose. In his testimony to a relatively friendly Senate panel yesterday, Barr demonstrated how law operates in a banana republic, leveraging the power we gave to our senior law enforcement bureau to protect a Kleptocrat. The Attorney General is now Donald Trump’s attorney. He’ll wreck your interests to protect his client.

Today Barr ignored a Congressional subpoena. Submitting a collection of yada-yada sentences expressing issues with the forum, he simply failed to show up before a hostile panel. He’ll likely be cited for contempt, but what happens then? Probably nothing.

Contempt of Congress used to matter. Like Congress itself, it doesn’t anymore. A decades-long descent into triviality fueled by tragi-comic Republican ghost hunts means no one takes the matter seriously. Barr won’t even be the first Attorney General cited for contempt. That distinction belongs to Obama’s AG, Eric Holder. We’re about to find out how weak our democratic institutions have become.

Here’s how this is supposed to work. Congress has a nearly unlimited power under the Constitution to subpoena evidence for its investigations. Congress also has the power to compel that testimony, but that power is wielded by the Department of Justice. In principle, the Congressional Sergeant at Arms has the power to arrest someone and bring them to testify. That was actually done in the olden’ days, but since the 19th century that position has evolved into more of a ceremonial role.

Now, when Congress votes to hold someone in contempt, that contempt citation is handed to the Assistant Attorney General for DC, who performs their usual role in evaluating a prosecution. Contempt is a federal crime, punishable by up to a year in prison and a $100,000 fine. In the modern era, no one has ever been convicted of Contempt of Congress. With the exception of a few random loons, everyone eventually complies with the subpoena, from Henry Kissinger to Janet Reno. That has changed recently.

The two people who came closest to jail for contempt were Rita Lavelle and Anne Gorsuch Burford. Yes, that Gorsuch, mother to one of Trump’s Supreme Court picks. As Reagan’s first pick to head the EPA, Gorsuch presided over a scam in which Superfund money was being channeled into districts held by Republican Congressman, and Republican-friendly companies were getting breaks on fines. Lavelle ended up taking the fall for Burford after a whistleblower emerged to reveal her perjury. Reagan, Burford and everyone else threw Lavelle to the dogs.

Both Burford and Lavelle were voted in contempt. Both were indicted by Reagan’s Justice Department. Burford settled and complied. Lavelle went to trial on the contempt charges (the only example I could find) and was acquitted. In a separate case she was convicted of perjury and served a few months in prison. She later went back to prison over a scam involving hazardous waste removal.

A Congressional subpoena used to carry some weight, but that was in the days when Congress commanded some respect. Between 1940 and 2012, only 30 people were cited for contempt of Congress. 23 of those citations were issued by the raving nutjobs running the 112th Congress in 2011-12.

As the burden and absurdity of Congressional investigations mounted under Republican leadership, people stopped taking any of it seriously. When the US Attorney General was cited for contempt of Congress in 2012 over failure to turn over documents in the Fast and Furious inquiry, it hardly made news outside the right wing bubble. The Asst. AG in DC declined to prosecute and an internal Inspector General report found no wrongdoing. Congressional subpoena power was effectively dead, discredited beyond recovery by Republicans.

If Congress issues a contempt citation to Barr, the Asst. AG in DC who will review it is Jesse K. Lieu. She’s a Federalist Society member appointed to her current position by Trump. She joined the Justice Department in 2002 after a distinguished career in the private sector. Interestingly, she withdrew her nomination to the #3 position at the Justice Department just a few months ago. Apparently Senate Republicans objected that she wasn’t conservative enough, without any explanation.

What will she do? If she decides to prosecute then she could be fired, a fate met by others who threatened to challenge Trump. We’ll see.

We’re waking up to the fact that much of our democracy has already been hollowed out by years of Republican damage. We simply lack the common institutions necessary to hold powerful people accountable. Thing is, this is a nightmare scenario for real conservatives, those who recognize the value of traditional institutions. It is a wide open opportunity for the left. They just don’t see it yet.

Rule of law, tradition and due process have been the biggest obstacles to leftist reforms in our system. Republicans, in a foolish effort to burn down that system to protect white supremacy, have gutted those controls and destroyed their legitimacy. What will happen now when a Democratic President decides to ignore Congress, disregard the Supreme Court or even defy local law enforcement to expand health care, pack the judiciary, curtail gun rights, or impose a new climate plan? Nothing. As long as they retain political support from voters, they’ll be able to whatever they want. Contempt of Congress, and of our broader public institutions, is now the nearest thing we have to a common political value, a single attitude that binds us all together. Conservatives who winked at this project to discredit our institutions will deeply regret their complicity.

The left is waking up to the gift they’ve been handed. In time, they will wield this new executive power in ways we will regret.

31 Comments

      1. What is it about republicans that they always must start a war? This man is not content to just tear America apart – he’s got world ambitions….Surprised they haven’t sent troops into Venezuela, frankly.

      2. EJ

        Thanks for that, Koctya. I hope that nothing comes of this infantile posturing, as I suspect do we all.

        Mary: There are reports of American mercenaries and equipment showing up in Venezuela following the recent failed putsch. I suspect we’ll only hear the truth of it in a generation’s time, once people become old and want to let their secrets slip.

      3. You can be sure that American special operations forces are there. Perhaps they are not in uniform and are undercover, but they are there. Most likely Russian special operations forces are there as well.

        I am less certain that America will deploy regular military forces. However that is a definite possibility.

  1. A large part of the Democrat coalition is conservative or moderate. I think the left wing part of the party is and had been restrain by this. I see incremental change. Not the radical kind ofchange Trump cultist in the GOP think they want.

    1. Incremental by what standard? Kamala Harris is out saying that if she’s elected President and Congress doesn’t act within 100 days on guns, she’ll sign an executive order requiring background checks on anyone who sells 5 or more guns a year. On top of that, she said that any gun dealer who breaks the law will have their license revoked.

      Is she implying that if any gun dealer violates her hypothetical executive order, they’ll have their license revoked? ¯\_(ツ)_/¯

      Whether or not we can take that at face value isn’t nearly so serious as the reality that such talk would’ve been absolutely unthinkable even just a few years ago. Barack Obama never would’ve said anything like that. Neither would Bill Clinton, Jimmy Carter, or any Democratic president in the modern era.

      And it’s not just Harris. Inslee’s edging towards that kind of talk on climate, as is Warren on her pet issues too. This is a growing commonality among Democrats, and I think it a very real concern that the only incremental change will be the base growing more and more open to it.

      1. And voters like myself are taking note of rhetoric like this. Truth be told I am more in the moderate to conservative range politically. I have not decided who I will vote for in the primary coming up yet. Most of us have not.

        Quite a few Democrats are former Republicans. I identify with Republican politics of yesteryear not the white nationalism currently going on. I believe in a strong safety net, Capitalism with good fair regulation to restrain abuse and policies that actually encourage entrepreneurship.

        My oldest daughter is building with her partner a new company. Her biggest obstacle has been affordable decent health care. Her kids all have health issues. Without the ACA she would not be able to be in business. Sadly recently Democrats are actually more friendly towards small businesses.

        Another instance I do not favor Senator Warren’s plan to forgive all student loans. What I think is allowing those students to discharge those debts in bankruptcy would fix the issue. Lenders would not be loaning to people who cannot pay it back and the terms would be better for the borrower. It would equalize barter power between parties.

        I am wary of Senator’s Sanders Medicare for all. This might be a ultimate goal years down the road. But many people’s beans and cornbread depend on the current system. We need incremental change like the ACA to move forward on modernizing our health care system.

        One key compounded of the Democrat coalition are Black voters. Particularly Black women. Those people are socially conservative. I remember talking to a Black co-worker about Obama’s coming out in favor of more liberal treatment of gays. He was going to sit out the election over that one issue. I argued you cannot intellectually be a one issue voter. We agreed with most of Obama’s addenda and hardly none of his opponent.

        The democratic coalition is diverse and has multiply view points. Exactly the opposite of the Republican coalition. It makes it messy to come up with a consensus but the end result is usually better with many minds working together.

        I really think Democrats will rule from the middle in the end. One thing I think will happen when they have control of the Federal Government again is a reining in of presidential power. Something conservative and long needed.

    2. Stephen,

      I want you to be wrong. I’m old and I want change.

      I want the flow of taxpayer money to corporations to be halted.

      I want Elizabeth Warren’s understanding of capitalism to be reflected in economic policy.

      I want the kind of gun control that will stop school shootings. (There was another one today in Colorado. Hardly made the news.)

      I want religions and so-called religious beliefs out of government. Let women make their own decisions about their bodies — their own bodies, for chrisakes.

      I want the nation to respect science and to act on scientific findings. We can’t keep disregarding our natural environment and yet expect our planet will survive.

      I want the federal government to put a stop to state activities that deny their residents the vote.

      I want every American to have health care. I want drugs prices to not increase 10% every six months.

      I want to expand the supreme court if that’s the only way to reduce the power of conservative judges.

      I do not want more of the same. I do not want little alterations. I want change.

      I remember how my mom almost glowed when she spoke of what it was like to hear FDR on the radio when she was young. And how social security changed the lives of her neighbors. Oh the radicalism.

      Our country is ready for expansive ideas. We need significant change. After all, 45’s complete rejection of traditional presidential behavior demonstrates many Americans are just fine with behavior and ideas not previously seen.

      Like I said, I hope you are wrong.

  2. James Comey had an opinion column in today’s national edition of the NY Times regarding how Trump co-opts well regarded leaders. It is one factor explaining the corruption of this administration. It also ties into the subject matter of this column regarding how our institutions have declined into irrelevance.

    https://www.nytimes.com/2019/05/01/opinion/william-barr-testimony.html

    IMHO, Congress needs to start taking control again rather than continually letting the Executive do everything. But, before that can happen our electoral system must be reformed. I alluded to that in my comments on the previous post.

    Basically, I feel we need to return to a situation with a powerful Congress and specifically House. Thereby re-incorporating some parliamentary aspects into our system of governance. That was initially the case and was envisioned by the founders under the Constitution. But Congress has been continually letting the Executive assume its powers. That is mainly due to the difficulty of passing substantial legislation due to:
    1. The regional divides in the U.S.
    2. State rather than national control of the electoral system. This includes the electoral college.
    3. Internal procedures in both the House and the Senate.

    In the larger sense, it is the regional divides that have created most of the problems. The U.S. has never really jelled as a single unified national state. It is close, but not quite there. Perhaps the single largest obstacle is the lingering racial and white supremacy problems.

  3. The Left better wake up and take action or there won’t be anything left for “real” republicans or democrats to fight for.

    Pelosi, Nadler, Etc have got to put their “big boy pants “ on. If they equivocate, we need a new party. Threats are not being matched with actions and people are watching. Republicans and Democrats alike. This is a test of our democracy and even if democrats hold the high, moral ground, they will lose it if they don’t fight for it.

      1. The public announcement today of a letter from trump’s personal counsel, Emmett Flood, to Mueller is generating interesting commentary. Five pages in length, often personally derogatory to Mueller, could this reveal the trump inner circle’s real concern? Criminal liability? Flood, until now, has been working in the background. It appears the current trump team strategy is to attack aggressively. Are they making a mistake? Will the actions and words of Trump, Barr; and now Flood, personally
        going after Mueller and the integrity of his team’s work, backfire? Mueller’s personal restraint and long, distinguished career is in sharp contrast with the trump inner circle’s pettiness and lack of professionalism. I think it is highly likely that mueller will want to “tell all” in his quiet, dignified manner. He knows trump is guilty his entire career has been built on honor and truth – which America desperately needs to hear and definitely from a person beyond repute. A man of Robert Mueller’s character.

        https://www.nbcnews.com/politics/politics-news/read-full-letter-white-house-counsel-emmet-flood-ag-barr-n1001286

    1. Here’s Nadler’s supposedly “final” negotiation with Barr. Personally, contempt citation is overdue, but guess one more week won’t kill the baby “As Long As Monday, May 6, is an absolute deadline” for production. There is no intention on the part of any members of this administration to cooperate, reason and past experience don’t matter, so why keep delaying the inevitable?

      https://judiciary.house.gov/sites/democrats.judiciary.house.gov/files/documents/5.3.2019%20Letter%20to%20Barr.pdf

      1. EJ

        It’ll be interesting to see who’s calling whose bluff here.

        I am coming to be of the opinion that Pelosi and her wing of the Democrat party would rather concede than risk losing an actual fight, and therefore will back down at the eleventh hour; but I could be wrong.

        As Chris pointed out, it may not actually matter, of course.

      2. EJ

        Thanks for that link, Mary.

        I’m rereading Sartre’s writings on pre-1939 European politics, and one of the things that jumps out is how he describes the far Right as being deliberately childish; and how this lack of seriousness is not only not a vote-loser, but delights their supporters, who enjoy seeing the adults in the room rendered powerless. Sartre says that the real message here is propagandistic: it demonstrates that power belongs not to the people who take responsibility seriously, but to those who ignore it, and therefore persuades those who are attracted to power to join the far Right.

        That CNN piece really lays out the parallel very clearly to me.

  4. Wow, my last post earlier today on your previous blog would have dovetailed nicely with this current blog entry of yours, echoing how democracy is dead in the U.S., with the coup complete.

    I won’t bother rehashing my comments or what you have stated here except for one issue:
    You laid out the plan with Article III last blog, which only works with a Dem Senate, Dem House, Dem presidency, and a fair judiciary. Given that the last vestiges of democracy were wiped out today, and the impotency of the Dem’s laid bare, how do you expect the trifecta of a Dem in the Oval office, and simple majorities in the Senate and House to occur?

    And even with those three, how does one get past a judiciary that is working for fascism? You detailed how Lieu is in the back pocket of the tyrant, as is SCOTUS. Now imagine how much worse it will be if and when there is another election.

    Do you still seriously believe that the left will ever be in a position to wield the power that the fascists have, and are never going to give up? Why on earth would anyone believe that the sanctity of the election will be protected when this group is tearing down everything else?

    1. Here’s a puzzle for you. The right isn’t putting tanks in the street or assassinating people, and they’ve only managed to leverage a minority of the voting public in elections. They’ve polled a majority in a Prez election once in the last thirty years. If they can make this much progress by merely ignoring the rules, what have they got that the left hasn’t produced?

      Answer – patience, planning and imagination. It isn’t even money. Truth is they’re outgunned on the money front too.

      1. Chris, I don’t think you answered my question. How is the left, or rather people that choose democracy, supposed to retake the country if the judiciary, oval office, and senate are in the hands of fascists, and as you said, the Dem’s are utterly clueless at “patience, planning and imagination”?

        We agree that the left are hopeless at ruthless tactics. So how is that going to change?

      2. Dins, you’re spending too much time indulging in the constant dystopian festivities on social media. True, Dems as a whole lack the killer instinct that Republicans mastered a long time ago, but that’s changing in pretty profound ways that the Washington Post doesn’t talk about.

        Think about it. We have Democratic candidates for president only flirting with the idea of executive power that unquestionably goes beyond what Herr Drumpf has pursued. Abolishing the filibuster in its entirety has entered the mainstream of political debate, as is reforming the Supreme Court.

        That every day with King MAGAmerica in the WH feels like an eternity shouldn’t distract us from the reality that all that’s happened in less than 2 yrs – positions that would’ve been brushed off as insane just a few years ago. Where in the world are we going to be in 5, 10 yrs? At the rate we’re going, I wouldn’t even hazard to guess.

        That, in and of itself, speaks volumes.

      3. Ryan, I don’t understand much of what you stated. Some of what you stated seems to agree with my view that democracy is dead in the U.S.. and the coup complete. Other comments seem like you are disagreeing with me.

        All I can say is that anyone who is putting faith in the idea of “All we have to do is hunker down until Nov 2020, work really hard getting out the vote. and then we can reverse the damage”, are utterly, hopelessly naive. As you stated, the damage done is beyond any sane person’s worst case scenario from 2 years ago.

        And the destruction of the last vestiges of democracy will accelerate, not abate, in the coming 18-20 months. None of the tools that you expect to use to fight the tyrant and his regime in 18 months will exist by then.

        The fascists have discovered, or rather calculated, that the Democratic Congress is utterly toothless without a Senate and Judiciary to back the Congress. And the fascists will do everything they can to consolidate the power of the judiciary and Senate, while wiping out the power of any election with more open co-operation with russia, more intense dis-information, and increased, not decreased, gerry-mandering, all while going after credible journalistic sources (oh yeah, the attacks on the NY Times, WA Po, CNN et al are going to get really serious going forward).

        It is over folks. You keep hoping on the now 19 Dem’s not to line up in a circular firing squad while the fascists laugh and consolidate power even more.

      4. Dins, “if” you think it’s over, would you please stop posting these depressing, hyperbolic ramblings? Some of us here are trying like hell to fight “for” our democracy, regarless how frail it is. I certainly haven’t given up and likely never will, but I am discouraged and I don’t need any more depressing predictions. Please stop.

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