Congress could try to enforce a subpoena power it hasn’t used since 1935. Here’s how.

Congress can jail or fine individuals who don't comply with subpoenas.

May 14, 2019, 4:11 AM

It has been 84 years since Congress last utilized its constitutional authority to fine or imprison those who defy their subpoenas.

But if some Democrats have it their way, that could soon change.

Congressional Democrats, including Democratic House Intelligence Committee Adam Schiff, have recently proposed holding those who do not comply with subpoenas in inherent contempt: a rarely used congressional authority to fine or even jail those who don't comply.

As the Trump administration has continued to signal that it will not comply with Congressional subpoenas, Schiff has proposed using inherent contempt to issue fines of up to $25,000 a day for those who refuse to turn information over to Congress.

"I don't know how many are going to want to take that risk for Donald Trump. But we're are going have to use that device if necessary," Schiff told ABC News' Chief Anchor George Stephanopoulos on 'This Week' Sunday. "We’re going to have to use the power of the purse if necessary. We're going to have to enforce our ability to do oversight.

What is inherent contempt?

According to the Congressional Research Service, the inherent contempt power allows the Sergeant-at-Arms to bring an individual before the House or Senate to be tried before the body and "imprisoned or detained in the Capitol or perhaps elsewhere".

The early uses of the clause involved imprisonment, but the Congressional Research Center also found grounds for a fine, much like the one Schiff has proposed, to be used as a different form of enforcement of the power.

Does inherent contempt happen often?


Congress's authority to impose fines and jail individuals for non-compliance has been upheld in the Supreme Court. But the last time Congress made use of it's inherent contempt power was in 1935.

Since then, subpoena disputes have been handled in criminal or civil courts.

According to Barbara Comstock, a former GOP representative who investigated the Bill Clinton White House, the antiquated procedure was largely considered a joke during her time in Congress.

"We used to joke about doing this in the 90s nobody ever considered doing it," Comstock told ABC News on an April 30 podcast. "If the Democrats choose to do that, I think it will be at great cost to themselves because then it'll just be political theater."

In the event that the House did decide to hold someone in inherent contempt, that individual would be tried on the floor, and could be held or fined either until they comply with the subpoena or the Congressional session ends.

So who could this apply to?

At least one person who currently runs the risk of being held in inherent contempt is Don McGhan, the former White House Counsel who has refused to provide testimony and documents to the House Judiciary.

PHOTO: White House Counsel and Assistant to President Donald Trump, Donald McGahn, listens to Supreme Court nominee Brett Kavanaugh as he testifies before the US Senate Judiciary Committee on Capitol Hill, Sept. 27, 2018.
White House Counsel and Assistant to President Donald Trump, Donald McGahn, listens to Supreme Court nominee Brett Kavanaugh as he testifies before the US Senate Judiciary Committee on Capitol Hill, Sept. 27, 2018.
Saul Loeb/Pool via Getty Images, FILE

Also facing potential contempt charges is Treasury Secretary Steve Mnuchin, who has butt heads with the House Ways and Means Committee over his refusal to turn over Trump's tax returns.

Congress voted last week to hold Attorney General Barr in contempt of Congress, though he is not facing inherent contempt enforcement at this time.

House Judiciary Chairman Jerry Nadler has not explicitly threatened inherent contempt but has signaled his willingness to take more aggressive measures if his requests are not met.

“In the coming days, I expect that Congress will have no choice but to confront the behavior of this lawless administration,” Nadler said last week. “The committee will also take a hard look at the officials who are enabling this cover-up."

But Comstock warned that such action could be a detriment to Democrats moving forward.

"If they do something crazy like do this inherent contempt and bring him in and try him in the House of Representatives that will be a media circus," Comstock said. "And I think that will backfire on the Democrats."

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