Josh Chavetz is a law professor at Cornell, and he has written an opinion piece in the NY Times entitled “The House Can Play Hardball, Too. It Can Arrest Giuliani: Two ways that Democrats in the House can match the White House’s aggressive tactics.”
Let’s just pause for a moment and reflect on the irony of the title, which ignores how incredibly aggressive the House and the Democrats in general have been, and the fact that much of the “aggression” the White House has mounted has been in understandable self-defense.
Self-defense is, of course, not allowed to Republicans, and one of the things about Trump that so enrages them is that he fights back in no uncertain terms. And sometimes, yes, he’s not even fighting back, but is on the offensive. Apparently that’s only permitted to the Democrats.
Here’s Chavetz:
Refusal to comply with a duly authorized subpoena from Congress constitutes contempt of Congress. Contempt of Congress is a crime, and there is a mechanism for referring such cases to federal prosecutors. The problem, of course, is that federal prosecutors answer to the attorney general and, through him, to the White House, and they refuse to prosecute contempts committed by executive officials. In recent decades, congressional houses have sought a court order requiring executive officials to comply with their subpoenas, but that has all the problems described above.
The House should instead put back on the table the option of using its sergeant-at-arms to arrest contemnors — as the person in violation of the order is called — especially when an individual, like Rudy Giuliani, is not an executive branch official. Neither house of Congress has arrested anyone since 1935, but it was not uncommon before that point (and was blessed by the Supreme Court in 1927). Indeed, on at least two occasions, the second in 1916, a house of Congress had its sergeant arrest an executive branch official. (In that case, the Supreme Court eventually ruled against the House, not because it did not have the power to arrest for contempt, but rather because the offense — writing a nasty public letter to a House subcommittee — could not properly be understood as contempt of Congress.)
Facilities in the Capitol or one of the House office buildings can be made into a makeshift holding cell if necessary. Of course, arrestees will ask the courts to set them free, but the case should be relatively open-and-shut against them: They will have committed a contempt in refusing to turn over subpoenaed materials, and the House has the power to hold contemnors.
And so on and so forth.
It seems the left doesn’t mind going backwards in time close to 100 years in order to get the results they want, despite the fact that this tool has not been used in all that time for a good reason having to do with escalation and overkill.
And despite the fact that, even back when it was used, it was never used in an open-ended impeachment “inquiry” in which the president and his aides were barred from presenting any defense, and his party prevented from having any say in the matter or asking any questions.
I am not 100% conversant with every case in which this imprisonment power was used, but my guess is that it was never used that way, and that if the GOP had ever tried such a gambit that the likes of Josh Chavetz would be among the first to write an op-ed protesting it in the Times, as well as appealing it to SCOTUS [please see my subsequent discussion and partial correction of this, based on some earlier writings of Chavetz as well as the differences between those cases and this one].
Note that this op-ed follows hard on the heels of Rashida Tlaib’s statement last week:
Freshman Rep. Rashida Tlaib said Democratic lawmakers were trying to figure out how to arrest White House officials who ignore congressional subpoenas.
Tlaib told constituents at her “Congress, Coffee, and Conversation” event in Detroit on Tuesday that lawmakers were focused on how best to take members of President Trump’s cabinet into custody.
“This is the first time we’ve ever had a situation like this. So they’re trying to figure out, no joke, is it the DC police that goes and gets them? We don’t know. Where do we hold them?” she said, according to the pro-Trump America Rising PAC.
Tlaib was caught on video speculating what might happen to Trump administration officials held in contempt of Congress.
Tlaib — a member of “The Squad” along with fellow freshman Reps. Alexandria Ocasio-Cortez, Ilhan Omar and Ayanna Pressley — said she and her fellow Dems were “trying to tread carefully” in this “uncharted territory.”
She then joked that anyone taken into custody could be held in Detroit.
“I will tell them they can hold all those people right here in Detroit. We’ll take care of them and make sure they show up to the committee hearings,” she said.
As I’ve stated before, there is no reluctance anymore to say things that even ten years ago would be shocking and the vast majority of the public would understand that it’s a dangerous thing to do. As it is, only a few commenters to that op-ed at the Times indicated opposition to what Chavetz wrote, but purely on the practical grounds that it could cause a backlash. The idea is that it might end up helping Trump because the public isn’t quite ready for it yet.
[ADDENDUM: Also please see this article about whether these are subpoenas. I don’t know whether the information contained there is correct, however.]