Contempt of Congress now feels like an everyday thing. It wasn’t always so

Posted at 5:10 PM, Jun 26, 2019
and last updated 2019-06-26 19:10:48-04

The ongoing standoff between the Trump administration and Democrats in Congress regarding just about any kind of oversight has already veered toward what are sure to be lengthy court battles. They could end up at the Supreme Court one day and the Trump-appointed Justice Neil Gorsuch will have some firsthand knowledge if it does: His mother is one of the very few people to actually have been held in contempt of Congress. She later resigned as the first woman to head the EPA.

Contempt votes are usually very rare, but they’re starting to feel like a weekly occurrence as Trump faces off with Congress.

The House voted June 11 to hold Attorney General William Barr and former White House counsel Don McGahn in contempt. But since the Barr-led Justice Department is unlikely to pursue criminal charges, the Democrats are moving instead toward the courts to enforce their subpoenas.

Similarly, Kellyanne Conway, the Trump adviser accused of repeatedly violating rules that prohibit political campaigning from government property, seems destined for her own contempt vote. The House Oversight Committee voted to hold her in contempt Wednesday, sending the matter to the full House.

The pattern that has emerged is that a Trump appointee will refuse to testify before Congress, and then Congress will hold them in contempt.

But there’s not much Congress can do after that except wait. It needs the executive branch — the Department of Justice — or the courts to enforce them.

A Congressional Research Service analysis of contempt votes since 1980 examined the four times an executive branch official was voted by the House to be in contempt of Congress in that period and before President Trump. The DOJ never followed through on any of these votes. So Congress sued and the courts eventually gave up information, but the process in each case took more than a year.

Anne Gorsuch Burford

A Ronald Reagan appointee, Burford refused to give a Democrat-controlled Congress documents related to the administration’s enforcement of the Superfund law meant to clean up toxic waste sites.

This is actually a really important detail. Burford was something of a trailblazer as the first woman to lead the EPA. She’s also the mother of Neil Gorsuch, who now sits on the Supreme Court.

Congress ultimately got the documents, the contempt citation was dropped. Burford resigned. But she wasn’t the only casualty of the Superfund scandal in which officials were accused of misusing funds meant for toxic waste cleanup.

Rita Lavelle

A subordinate of Burford at the EPA, LaVelle was held in contempt a few months earlier as part of the Superfund scandal. But LaVelle was later convicted of perjury, the last time a criminal referral from a contempt vote resulted in jail time. She had lied to Congress about when she knew the Aerojet General Corporation, her former company, dumped toxic waste at a Superfund site in California.

Ralph and Joseph Bernstein

The House voted in 1986 to hold these New York brothers and real estate speculators in contempt for not cooperating with an investigation into the US assets of then-Philippines President Ferdinand Marcos and his wife Imelda.

Harriet Miers and Josh Bolten

During the George W. Bush administration, a Democrat-led House voted to hold White House counsel Harriet Miers and White House chief of staff Josh Bolten in contempt for not testifying about the mass firing of multiple US attorneys. A legal battle ensued. But the case was ultimately resolved in 2009, after Bush had left office, when the House Judiciary Committee reached a settlement that included closed-door testimony.

Eric Holder

President Barack Obama’s attorney general was held in contempt by Congress for not furnishing certain documents related to the Fast and Furious gun running sting operated by the Bureau of Alcohol Tobacco and Firearms. That vote occurred in 2012 but the subpoena fight was only settled last month, seven years later. At the time of the vote, most Republicans in Congress staged a walkout and did not take part.

Lois Lerner

The IRS official in charge of overseeing tax-exempt organizations, Lerner was central to accusations the IRS had unfairly targeted conservative groups. She refused to answer questions during testimony before Congress. The US attorney did not pursue any charges relating to the contempt vote in 2015 and the Justice Department ultimately closed a larger investigation with no charges relating to the scandal. After President Donald Trump took office, House Republicans again asked for prosecution, but the Department of Justice, then led by Jeff Sessions, declined.

No contempt votes for pitcher Roger Clemens or State Department IT staffer

A contempt citation is not required to refer a case of contempt for prosecution.

Bryan Pagliano, the former State Department IT specialist who installed Hillary Clinton’s private email server but refused to testify before Congress has his case referred to the Department of Justice, but Pagliano was granted immunity as part of a probe into the email system.

The Major League Baseball pitcher Roger Clemens was acquitted in 2012 of contempt for Congress by appearing to lie during 2008 testimony about the use of steroids.

Part of Clemens’ defense at trial was that Congress was just putting on a show and not serious about legislation relating to steroid use.

“(Clemens’ lawyer) was basically saying, Congress was putting on a show. They didn’t care,” said CNN legal analyst Jeffrey Toobin in 2012 after the Clemens verdict. “They just wanted Clemens to come up there, they weren’t planning to do anything with the testimony.”

Historical contempt

Clemens’ defense relied on the idea that the Supreme Court has said congressional subpoenas require “legislative purpose.” It wasn’t always so. In 1796, according to the House historian’s website, the House met to try two individuals, Charles Whitney and Robert Randall, of trying to bribe members of Congress as part of a scheme to grab land in the Northwest territories. Among the accusers was James Madison. They were detained by the House and later released. The case is important because the Supreme Court said Congress could detain citizens and put them on trial.

The Supreme Court refined that power in 1916 after the House Sargeant at Arms Robert Gordon arrested H. Snowden Marshall, the US attorney in New York. Marshall had indicted a member of Congress, Frank Buchanan of Illinois, as part of an investigation about German government meddling in the US. Buchanan tried to impeach Marshall and the ensuing disagreement led Marshall to impugn the House in a strongly worded letter. The resulting Supreme Court case, Marshall v. Gordon, made clear Congress could not punish nonmembers unless they were obstructing a legislative duty, according to the historian’s website.

Lack of legislative need is the reason Treasury Secretary Steven Mnuchin cited for not handing over President Trump’s tax returns to Congress. That’s despite a law that clearly seems to grant certain lawmakers access to any tax return. He has not been held in contempt. Not yet.