Constitutional lawyer explains why 'the law will be on their side' if Democrats directly fine Trump officials under federal contempt law
When Democrats achieved a majority in the House of Representatives in the 2018 midterms with a net gain of 40 seats, it was safe to predict that aggressive investigations of President Donald Trump would be coming in 2019 — and sure enough, 2019 has seen an intense battle between the executive and legislative branches of the United States’ federal government. Trump has vowed to defy all subpoenas issued by House Democrats, claiming executive privilege. And constitutional attorney Kia Rahnama, in a June 11 article for the Lawfare Blog, explores the possibility of House Democrats directly fining officials who refuse to show up when subpoenaed.
Rahnama observes that members of Democrat-led House committees have angrily responded to “stonewalling” from the Trump administration: for example, the House Judiciary Committee, on May 6, voted to recommend that Attorney General William Barr be held in contempt of Congress for refusing to give the Committee an unredacted copy of former special counsel Robert Mueller’s final report for the Russia investigation. And Rahnama poses the question: what powers do members of Congress have when it comes to directly fining uncooperative officials?
“The option of directly fining federal officials — never practiced before — might allow Congress to regain some ground,” Rahnama notes. “Currently, the Democrats are said to be exploring the legal basis for levying fines. My research in the area suggests the law will be on their side.”
Rahnama goes on to explain that members of Congress have the option of “fining federal officials through an indirect route of civil contempt or criminal contempt. In both cases, Congress would have to initiate a lawsuit — either civil or criminal — obtain a favorable order from a judge, and ultimately ask the judge to use the court’s contempt power to impose a fine on the contemnor.”
The attorney quickly adds, however, that it remains “unclear whether Congress can instead issue the fines itself without having to resort to the courts first.”
According to Rahnama, “Congress has never before tried to exert its contempt power by directly issuing fines” — and there remains “legal uncertainty” on the matter. But the attorney believes there is “clear legal precedent that all but endorses such power.”
Rahnama points to Supreme Court cases of the past, including Kilbourn v. Thompson in 1880, McGrain v. Daugherty in 1927 and Jurney v. MacCracken in 1935. All of those cases, he writes, upheld Congress’ investigative powers, and Kilbourn v. Thompson specifically mentioned Congress’ power to punish by “fine or imprisonment.”
“There are reasons to believe that the courts will not object to being left out of contempt enforcement at the first step,” Rahnama asserts. “Historically, the courts have understood the sense of urgency that accompanies the use of contempt power, in many cases curtailing their own involvement in such conflicts. For these reasons, the courts are less likely to find Congress’ attempts at fining officials directly — and before going to court — to be unconstitutional.”