Congress has been rightly criticized for not pushing back sooner against executive branch encroachments on first branch constitutional prerogatives. Congress’s relative somnolence is understandable though not wholly excusable.
The silence on the Hill has been due in large part to the unilateral party control of both houses of Congress and the presidency. There is a certain grace period observed at the outset of a new administration while it gets its ducks in a row on policy and legislative priorities.
Missteps and overreach inevitably occur and usually are met by majority party tolerance and inaction on the Hill. This Congress has followed the norm and oversight was overlooked except by the lone voices of protest on the minority party side of the aisle.
Last month we witnessed the first cracks in the stone dam. It occurred on July 22 in the House Oversight and Government Reform Committee. There, in the Subcommittee on Federal Law Enforcement chaired by Rep. Clay Higgins (R-La.), ranking member Summer Lee (D-Pa.) offered a motion to subpoena the Justice Department for the complete files of Jeffrey Epstein, the convicted sex offender who died by suicide in prison in 2019.
The motion surprisingly carried on an 8-to-2 vote with three Republican members joining all Democrats to adopt the motion. Two of the subcommittee’s Republicans, including Chairman Higgins, voted against the motion.
The subcommittee subsequently adopted by voice vote a motion offered by Rep. Scott Perry (R-Pa.) to subpoena the deposition testimony of a host of former government officials from both parties, including former President Bill Clinton, former Secretary of State Hillary Clinton, six former attorneys general and two former FBI directors.
One of the subpoenaed former officials, Obama Attorney General Eric Holder, was asked on “Meet the Press” last Sunday whether he would comply with the subpoena. He wouldn’t commit, explaining that conversations were ongoing to determine exactly what information the committee wanted.
Program moderator Kristen Welker pressed him, noting that he was the first attorney general in history ever to be held in contempt of Congress in 2012 for his refusal to testify on “Operation Fast and Furious,” tracking illegal gun sales. “Do you have any regrets about that now,” and, “will that be informing your decision now?”
Holder explained that the information sought in that instance was “confidential” internal executive branch communications and, presumably privileged (though only the president can invoke executive privilege). The White House and Justice Department did not attempt to prosecute Holder for criminal contempt of Congress in 2012.
Whether the other subpoenaed former attorneys general and FBI directors will take their lead from Holder’s decision this time will be interesting to watch. What makes the Epstein files disclosure demand especially unique today is President Trump’s apparent flip-flop on the issue of disclosure from his previous use of it as one of the major issues on which he campaigned. It was a symbol of bringing down the ruling elites and draining the Washington swamp. That commitment has waned.
As pressure grew, the president belatedly directed Attorney General Pam Bondi to seek release of sealed grand jury transcripts in the Epstein case. That request was denied by a Florida judge. Meanwhile, the president has put out the word that it’s “time to move on.”
The Supreme Court’s decision in McGrain v. Daugherty in 1927 held that Congress has an inherent right to compel testimony and conduct oversight as part of its constitutional lawmaking functions. The case was an offshoot of the Teapot Dome oil leasing scandal of the early 1920s.
In that instance, a Senate select committee was inquiring into why former Attorney General Harry Daughety did not investigate the matter when it first broke. It had subpoenaed Mally Daugherty, the attorney general’s brother and president of a bank at the heart of the scandal. When Mally refused to comply with the subpoena he was cited for contempt of Congress and found guilty. The Supreme Court reversed a lower court and upheld Mally’s conviction.
That 1927 decision did not turn off the spigot and witnesses today are still challenging subpoenas and inviting contempt citations. Whether a contempt citation is prosecuted is solely at the discretion of the Justice Department.
The failure by the Justice Department to prosecute Holder’s contempt of Congress citation in 2012 could well be a precursor to another prolonged battle of the branches. This time Congress could potentially wind-up with a sawed-off limb.
Don Wolfensberger is a 28-year congressional staff veteran culminating as chief of staff of the House Rules Committee in 1995. He is author of, “Congress and the People: Deliberative Democracy on Trial” (2000), and, “Changing Cultures in Congress: From Fair Play to Power Plays” (2018).
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