WHAT’S A SUBPOENA – AND SHOULD TRUMP FEAR IT?
You’re
probably hearing a lot about subpoenas. Or you will very soon, once Democrats take control of the House.
A subpoena is a
legal command from a court or from one or both houses of Congress to do
something – like testify or
present information. The term “subpoena”
literally means “under penalty.” Someone who receives a subpoena but doesn’t
comply with it may be subject to civil or criminal penalties.
Here’s how it works.
Step one: Let’s say the
Intelligence Committee of the House of Representatives issues a subpoena to the
President for information about alleged conversations with Russian officials
seeking their help in the 2016 election. Or say the House Ways and Means
Committee subpoenas the President’s tax returns–which, in fact, a law enacted in
1924 after the Teapot Dome scandal of the Harding Administration specifically
authorizes that committee to do.
Step
three: That proposed contempt
citation would then go to the full House for a vote.
Step
four: If a majority of the full House agrees, the Speaker of the House would
then refer the contempt citation to a United States Attorney, or to a special
prosecutor, for prosecution in federal court. The potential penalty is up to $100,000 and
imprisonment for up to a year.
Step
five: The defendant in such a lawsuit–in this case, Trump–would probably argue
that contempt of Congress doesn’t apply to a President because of “executive
privilege”–that is, the supposed
Constitutional power of a President and other members of the executive branch
of the government to withhold information from the legislative branch, in the
public’s interest.
Step
six: Regardless of how the lower court decides on the claim of “executive
privilege,” the case could end up at the Supreme Court,
where, unless they could find a way to avoid it, the nine Justices would have
to balance Congress’s need for information with the executive branch’s claims
of confidentially.
In
the 1974 case of United
States vs. Nixon, when the Watergate special prosecutor sought Richard
Nixon’s audiotapes of conversations in the White House and Nixon claimed
executive privilege, the Supreme Court sided with the special prosecutor,
because Nixon had asserted
only a generalized need for confidentiality rather than a specific public
interest in keeping particular conversations confidential.
The
Clinton
administration invoked executive privilege 14 times. The George W. Bush
administration, 6 times. The Obama
administration, twice. All these matters were resolved before parties appealed
them to the Supreme Court.
Alternative route: I should mention an alternative route for the House to
enforce a subpoena–although it hasn’t been
used in over 80 years. Under its inherent authority to investigate, the House
could try someone who refuses to comply with a subpoena, for contempt, before
the entire House chamber.
If found guilty by a majority of the House, the
person who has been cited for contempt could then be arrested by the
Sergeant-at-Arms for the House, brought to the floor of the House, held to
answer charges by the presiding officer, and then held
in the Capitol until he or she provided the testimony or documents sought, or
until the end of the session of Congress.
Somehow
I doubt this would happen to Trump. The last time this
occurred was in 1934, and it was to a much lower-level official.
But still, even with the formidable power of
the subpoena, these days anything is possible.
