The current President of these United States of America, Donald John Trump, has imposed upon all law-abiding Americans during his first two years and four months in office a reign of lawlessness, abuse of executive powers, official corruption, and pathological lying to the American people unlike any other president to occupy this nation’s White House.
The president’s most recent disregard for the established rule of law came when he ordered all of his current and former White House staffers and all Cabinet heads and their subordinates to disobey any subpoenas issued to them by the Democratic-controlled U.S. House of Representatives. Trump’s justification for creating this constitutional conflict between the executive and legislative branches of government is his sweeping, unsubstantiated view that Democratic lawmakers are not “impartial.” It is noteworthy that Trump did not have this political point of view during his first two years in office when Republicans “partial” to the president controlled the House of Representatives.
Contempt of Congress
The only recourse for the House of Representatives is to exercise its powers to hold individuals who refuse to testify or to produce requested documents in contempt of Congress. The Congressional Research Service in a May 2017 analysis listed the three formal methods lawmakers have at their disposal to deal with non-compliance of duly issued subpoenas:
“ … Each of these methods invokes the authority of a separate branch of government. First, the long dormant inherent contempt power permits Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands. Because the contemnor is generally released once the terms of the subpoena are met, inherent contempt serves the purposes of encouraging compliance with a congressional directive. Second, the criminal contempt statute permits Congress to certify a contempt citation to the executive branch for the criminal prosecution of the contemnor. Criminal contempt serves as punishment for non-compliance with a congressional subpoena, but does not necessarily encourage subsequent acquiescence. Once convicted, the contemnor is not excused from criminal liability if he later chooses to comply with the subpoena. Finally, Congress may rely on the judicial branch to enforce a congressional subpoena. Under this procedure, Congress may seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena. If the court finds that the party is legally obligated to comply, continued non-compliance may result in the party being held in contempt of court. Where the target of the subpoena is an executive branch official, civil enforcement may be the only practical means by which Congress can effectively ensure compliance with its own subpoena.”
Legislature Cannot Legislate Without Information
The House’s Oversight Committee, Judiciary Committee, Intelligence Committee and Ways and Means Committee have either issued or plan to issue subpoenas to current and former executive officials in the Trump administration who have refused to either testify before the committees or failed to produce documents relevant to their investigations. The U.S. Supreme Court in 1927—in a case flowing out of the infamous “Teapot Dome Scandal”—in McGrain v. Daugherty forcefully recognized Congress’s authority to make such informational demands. The Court explained the legislative power of inquiry:
“A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain that which is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry—with enforcing process—was regarded and employed as a necessary and appropriate attribute of the power to legislate—indeed, was treated as inhering in it. Thus there is ample warrant for thinking, as we do, that the constitutional provisions which commit the legislative function to the two houses are intended to include this attribute to the end that the function may be effectively exercised.”
More recently, the Honorable John D. Bates, an appointee of former President George W. Bush in December 2001, handed down a decision, Committee on the Judiciary v. Miers, on July 31, 2008 in which he said that “there can be no question that Congress has a right—derived from its Article I legislative function—to issue and enforce subpoenas, and a corresponding right to the information that is the subject of such subpoenas. Several Supreme Court decisions have confirmed that fact.”
Judge Bates, who now enjoys senior status in the District Court for the District of Columbia, knows about which he speaks. The district court’s website details the judge’s personal, educational, and legal background:
“Judge Bates was appointed United States District Judge in December 2001. He graduated from Wesleyan University in 1968 and received a J.D. from the University of Maryland School of Law in 1976. From 1968 to 1971, he served in the United States Army, including a tour in Vietnam. Judge Bates clerked for Judge Roszel C. Thomsen of the United States District Court for the District of Maryland from 1976 to 1977 and was an associate of Steptoe & Johnson from 1977 to 1980. He served as an Assistant United States Attorney for the District of Columbia from 1980 to 1997 and was Chief of the Civil Division of the U.S. Attorney’s Office from 1987 to 1997. Judge Bates was on detail as Deputy Independent Counsel for the Whitewater investigation from 1995 to mid-1997. In 1998, he joined the Washington law firm of Miller & Chevalier, where he was Chair of the Government Contracts/Litigation Department and a member of the Executive Committee. Judge Bates has served on the Advisory Committee for Procedures of the D.C. Circuit and on the Civil Justice Reform Committee for the District Court, and as Treasurer of the D.C. Bar, Chairman of the Publications Committee of the D.C. Bar, and Chairman of the Litigation Section of the Federal Bar Association. He was a member of the Board of Directors of the Washington Lawyers Committee for Civil Rights and Urban Affairs. In 2005, he was appointed by Chief Justice Rehnquist to serve on the U.S. Judicial Conference Committee on Court Administration and case management. In 2006, he was appointed by Chief Justice John Roberts to serve as a judge of the United States Foreign Intelligence Surveillance Court, and he served as Presiding Judge from 2009 until 2013, when he completed his term of service on that court. He was then appointed by Chief Justice Roberts, with the concurrence of the Judicial Conference, to serve as the Director of the Administrative Office of the U.S. Courts, and served in that capacity until January 1, 2015. Since 2015, Judge Bates has been Chair of the Advisory Committee on Civil Rights of the Judicial Conference.”
These legal credentials, we believe, are more than sufficient to take President Trump behind the proverbial barn—a president who doesn’t know the difference between “origins” and “oranges”—and teach him a thing or two about constitutional law. And we surmise that at least 11 of the district court’s 14 active judges—11 of whom were appointed by Democratic presidents while the remaining three were appointed by Trump—will share the same constitutional views that Judge Bates expressed in the Committee on the Judiciary v. Miers decision.
If Trump should lose any legal challenge in the D.C. district court, his personal Attorney General, the Honorable William Pelham Barr, will appeal to the Court of Appeals for the District of Columbia where he was face a court of 7 Democratic appointees and four Republican appointees—and a judicial setting where Judge Bates’ interpretations of constitutional law and respect for the rule of law is held in high esteem.
President’s Contempt for Law Setup for SCOTUS
And should Attorney General Barr’s constitutional interpretations fail in the D.C. Court of Appeals, he will saddle up, brief case and all, and head for the U.S. Supreme Court where his mentor, President Trump, has placed two appointees—Justice Neil Gorsuch and Justice Brett Kavanaugh. Assuming these two justices will remain ideologically loyal to the president and that Justices Thomas and Alito will tow the party line as they usually do, that leaves Chief Justice John Roberts to cast the deciding vote on any subpoena challenge.
The Chief Justice will have to choose between the constitutional reasoning of the distinguished Judge John D. Bates and the president who his determined to destroy the Constitution of the United States.
We believe Chief Justice Roberts, a jurist who has a deep respect for the rule of law, will come down on the side of Judge Bates.