Constitutional Crisis - Political Theater from the Democratic Party

by

       M. Richard Maxson

      Last week Attorney General Barr testified before Congress. He answered the questions with legal expertise as members of this partisan committee spewed their hatred for the administration and he suffered through hours their manipulative demagoguery which is not based on reason, issues, and doing the right thing, no, they still have only one purpose and that is to stir up fear and hatred to control people’s opinions to bring down this President. They want the full Mueller report - damn the law! They are issuing partisan subpoenas and they will get to the bottom of whatever fantasy they can to interfere with this administration’s agenda. It is what they have been doing since election day, but now the executive branch has now said - enough.

      Enough! The Attorney General has had enough of this political theater and so has the President. Now that the phony Russian hoax has been defused THIS Attorney General can now begin to investigate the REAL criminals behind what is really going on and the Leftist elite are starting to panic. The Democratic party is now screaming from the mountain tops – Constitutional Crisis!

 

      Oh my, we are going to have to look at the facts. Something most of these politicians would rather not do. The Constitution and the Rule of Law are a good place to start. First of all, there is no express provision in the Constitution giving Congress the power to investigate, issue subpoenas or question cabinet officials but it began to do so not long after the birth of the Republic. The Supreme Court upheld the practice in 1821, reasoning that without it, Congress “would be exposed to every indignity and interruption that rudeness, caprice or even conspiracy may mediate against it.” The ruling gave Congress the right to imprison uncooperative witnesses for contempt, but for no longer than the duration of the Congress that passed the citation. Any charges or court case that dragged on past the expiration of the term of that Congress would be void.

     Until the middle of the 19^th century, Congress would enforce contempt citations itself, with the sergeants-at-arms taking guilty parties into custody. But the limitations of the 1821 court ruling led lawmakers to turn over the responsibility for prosecuting these citations to the executive branch. From 1857 on, a U.S. attorney was asked to certify contempt citations and bring them before a federal judge.

      A number of obstacles face this partisan committee in any attempt to enforce a subpoena issued against an executive branch official. Although the courts have reaffirmed Congress’s constitutional authority to issue and enforce subpoenas, efforts to punish an executive branch official for non-compliance with a subpoena through criminal contempt will likely prove unavailing in many, if not most, circumstances. Where the official refuses to disclose information pursuant to the President’s decision that such information is protected under executive privilege, past practice suggests that the Department of Justice will not pursue a prosecution for criminal contempt. (See; Eric Holder/Obama)

     The committee has three options. The committee could refer it to the U.S. attorney for criminal prosecution of contempt. Congress would normally need the Justice Department's help to pursue any of those options, how would that work out in this particular case when the guy that they're trying to hold in contempt runs the Justice Department? If the committee voted a contempt resolution and the U.S. Attorney concluded prosecution was not appropriate, the prosecutor could present the case to the grand jury — but urge them not to indict. If the grand jury voted to indict anyway, the prosecutor could refuse to sign the indictment, rendering it invalid. And even if the case were indicted, the prosecutor could move to dismiss it. The idea that Congress could remove discretion from the hands of the prosecutor and essentially mandate an indictment and prosecution makes little sense, either practically or constitutionally. Congress is free to send its contempt citations to the Executive, but has no real recourse if the U.S. Attorney decides that prosecution is not appropriate. At least when it comes to disputes with senior Executive branch officials, for Congress to hold a witness in contempt under Section 192 is usually more an act of politics than a serious attempt to result in criminal charges.

      They could use another process called inherent contempt where they use the sergeant of arms to literally go out and arrest the attorney general and put him in the House jail, (there is not really a jail) which is a very unlikely option. Congress has successfully used the courts to imprison people for contempt. But its power to compel government officials is limited. . As one committee member stated, “They have a lot of guns over at Justice.”

      The more likely option is that the House would direct counsel to go to court and try to enforce the subpoena civilly. However, relying on this mechanism to enforce a subpoena directed at an executive official may prove an inadequate means of protecting congressional prerogatives due to the time required to achieve a final, enforceable ruling in the case. In a 2017 study of the contempt power, legislative attorney Todd Garvey of the Congressional Research Service wrote, "Efforts to punish an executive branch official for non-compliance with a subpoena will likely prove unavailing in many, if not most, circumstances." Suing government officials in civil court may also prove inadequate "due to the time required to achieve a final, enforceable ruling in the case," he said. Although subject to practical limitations, Congress retains the ability to exercise its own constitutionally based authorities to enforce a subpoena through inherent contempt.

      The framers provided no remedy for a struggle between Congress and the president over congressional subpoenas — because they didn’t specify either the right of investigation or executive privilege in the document. In this conflict between constitutional powers, there’s no express constitutional answer. The upshot is that you can expect stalemate. Congress can keep harassing and embarrassing the president. The president can keep resisting. Ultimately the check on both branches is public opinion — in the form of the voters who will go to the polls in 2020 and perhaps resolve the conflict by picking a winner. The truth is, when it comes to the contempt statute there’s little Congress can do to enforce it if the Executive branch declines to prosecute. Votes to hold Executive branch officials in contempt have become largely about political theater rather than actual criminal prosecutions.

      The Constitution’s system of checks and balances sets the various branches against each other for the laudable purpose of constraining tyranny. However, due to partisan polarization, individual corruption, or any number of other reasons, sometimes the political institutions in these arrangements fail, sending the governmental system into a crisis. This “crisis” is completely manufactured by the Democratic party and their elite bankrollers as a continuing effort to obstruct this president and keep the real truth from the American people.