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(Photo of Corey Lewandowski testifying before the House Judiciary Committee: Jacquelyn Martin, Associated Press)
After yesterday’s despicable performance by Corey Lewandowski, where he made it obvious that he was only looking to further degrade our entire institution of government, many were calling for contempt charges from Democrats where he would be hauled off by a House Sergeant at Arms and arrested. I understand the fury, especially when Lewandowski announced his potential Senate bid to fundraise during his testimony. While holding Lewandowski in immediate contempt is technically an option in theory, there are many reasons why invoking one of the available methods for punishing someone under Congressional Contempt charges at this point may be a terrible idea.
There are three types of contempt charges that Congress can theoretically utilize: criminal contempt, civil contempt and inherent contempt. There is a culmination of legal precedent, statutes, and court rulings, that have established that the House and the Senate each have the ability to invoke contempt charges and override their purely legislative status. This is an option when the committee in question has reason to believe obstruction is occurring and that a witness is hindering Congress’ ability to investigate. By bringing contempt charges within the House of Representatives, Congress diverts from its role as a purely legislative body and invokes judicial power to force compliance.
The first type of contempt is “criminal contempt” of Congress, which was established by a statute passed by Congress in 1857. Once a committee finds that criminal contempt has occurred, the Speaker of the House forwards the charge to the U.S. attorney’s office, “whose duty it shall be to bring the matter before the grand jury for its action.” The contempt statute has previously been interpreted to say that the Executive Branch, via the Attorney General’s Office, has discretion to decide if a grand jury should be convened to hear the charges. In this case, criminal contempt charges for Corey Lewandowski on the basis that he is obstructing a Congressional investigation would ultimately be referred to William Barr. Although the case is referred to the District Court of Washington, D.C., that court is an arm of the Department of Justice, which is overseen by the Attorney General Barr. Because Barr has made it clear that he will protect Trump at any cost, this is a dead end.
The second form of contempt involves Congress bringing a suit against an individual in the courts by asking a court to enforce a subpoena or compel testimony. This is called “civil contempt.” The Senate is expressly authorized to file a lawsuit under a federal statute and the federal district court in Washington, D.C., has decided that the House can also authorize committees to bring a suit in the same fashion to enforce a subpoena. Congress can then act through the court and utilize judicial punishment powers and the threat of fines or imprisonment to force compliance.
It’s important to note that an executive branch member can contest a subpoena like this “based on a governmental privilege or objection the assertion of which has been authorized by the executive branch of the Federal Government.” In this case Lewandowski has acknowledged that he has never worked in the White House and therefore does not qualify as an “executive branch member.” This option would cause more delay while the court takes time to rule, but it is the surest option for the House in this moment to force compliance.
There is a third type of contempt power called “inherent contempt” that can be used by Congress to directly enforce compliance under it’s own constitutional authority, but it has rarely been used since the criminal and civil contempt statutes discussed above were passed. Under the inherent contempt method, the committee would direct the Sergeant at Arms for the House of Representatives to arrest someone and take them into custody for Congressional proceedings to compel testimony. This is essentially Congress commandeering the power of the courts to take a judicial role and arguably overstep the Separation of Powers Doctrine.
So let me paint the picture. Committee Chair, Jerry Nadler would emphatically bang his gavel after securing a majority vote on the panel to take Corey Lewandowski into custody. They would call for the House Sargeant of Arms to take the offender into custody and to secure his confinement. Since Congress has no working jails, I imagine this to be a Security department within the House, likely an interrogation room with thick glass. Then the House would need to have a formal proceeding to determine that they were going to force him to comply. This would include both Republicans and Democrats, with all of their various tactics of outrage and fist-on-the-table action. All of this would play out on national television for the world to see and with no dress rehearsal for this procedure that hasn’t been enacted for 100 years in the modern age of media.
The earlier parts of yesterday were a complete mess for Democrats, not because they did anything wrong mind you, but the stall tactics of the Republicans turned the entire session into a circus. This result ultimately enraged people about the civic digression and made everyone wonder why they were wasting their time. This anger also fell on Democrats with people wanting action where little action could be taken. Democrats seemed unprepared and appeared to have backed themselves into a corner. Now imagine all of this happening, but magnified 100% in an inherent contempt performance that no one knows how to manage where Republicans can throw a wrench into the process at every turn.
You have to take into account the hypothetical ramifications of Nadler choosing to open a Pandora’s box by arresting people in committee for non-compliance. If Democrats use the tactic of inherent contempt at this stage to re-ignite a tradition that has rarely been used since statutory law was created to supersede it, then it will be open season. Whichever party retains control within certain committees will spend their time subpoenaing witnesses just to hold them in contempt and arrest them. Congress has always been theater, but invoking inherent contempt would turn the House of Representatives into something that rivaled Broadway or the West End and it would be nearly impossible to shut down in this new age of extremely divisive politics.
(Photo of Corey Lewandowski: Jacquelyn Martin, Associated Press)
Going to the courts, to maintain a solid line between the duties of each governmental branch and to have an objective ruling from an outsider is what is called for. House Democrats could have been better prepared for yesterday, but Nadler had to give Lewandowski a chance to show up and mis-step before he started litigation to correct it. It’s time for Democrats in Congress to take stock of who they intend to call moving forward and assess if any cases can be brought preemptively or if we will all have to watch more performances that mirror Lewandowski before we can truly get a remedy. Then we need to decide if this affects public opinion leading into the most important election year of our lives and if it’s really worth the cost. I know this explanation isn’t necessarily what you wanted to hear, and you might even feel angry at me for telling you this, but that’s alright — I’ve been a lawyer for a while and I’m used to giving people the answers I know they don’t want to hear.
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Amee Vanderpool writes the “Shero” Newsletter and is an attorney, contributor to Playboy Magazine, analyst for BBC radio and Director of The Inanna Project. She can be reached at email@example.com or follow her on Twitter @girlsreallyrule.