Government

Congress Should Hold These Trump People In Contempt, For All The Good It Will Do

Republicans did this to Eric Holder. Democrats can surely do it to Steve Mnuchin.

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Steve Mnuchin and other hucksters and charlatans. (Photo by Mark Wilson/Getty Images)

A constant feature of the Trump administration involves Donald Trump or his sycophants doing something unethical or wrong, people screaming “that’s illegal,” and then lawyers running around explaining the difference between “laws” and “norms.” It happens so often that one gets the impression that there are no laws, or that Trump is some kind of Bill Belichick evil genius who carefully stays within the letter of the law while completely disregarding the spirit of the law.

Because we’re so defeated by Trump’s flagrant disregard for norms, it kind of goes under the radar when Trump violates actual laws and gets away with it because he’s violating laws we don’t normally enforce. That’s a little bit of what’s happening with the Mueller report. The report outlines multiple violations of law, but the DOJ doesn’t normally charge sitting presidents with crimes. Nobody is willing to break the norms to stop a norm breaker, even when the norm breaker violates actual laws.

That bullshit must end. SOMEBODY has to be willing to violate some freaking norms in order to attack Trump and his people. Trump is out here throwing eggs off a balcony, and everybody is running around trying to catch the eggs, instead of blowing up the balcony.

If might be a while before Democrats go from zero to impeachment, what with their lack of vertebrae making it hard for them to move at pace. But I have some easier prey for Democrats to practice on, as they try to learn what strength is all about: let’s go get Steve Mnuchin and Carl Kline.

Steven Mnuchin is the Treasury Secretary and therefore the head of the IRS. In a few hours, he will be in violation of a Congressional order to remit six years of Donald Trump’s tax returns for Congressional review. The law is clearly on Congress’s side, and Mnuchin is violating that law in order to appease his master.

If Mnuchin refuses to release the tax returns today, Congress should hold him in contempt tomorrow. The contempt can be a precursor to formal impeachment proceedings against Mnuchin for refusing to perform his duties as Treasury Secretary.

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Carl Kline is a security specialist, subpoenaed to testify in front of the House Oversight Committee about the security clearance given to Jared Kushner. The White House told Kline to ignore the subpoena, and Kline’s lawyers told the committee that he was afraid of complying with Congress for fear of losing his job at the Pentagon.

Yes, Democrats should add another count of WITNESS INTIMIDATION to their impeachment charges against Donald Trump. But in the meantime, they should hold Kline in contempt of Congress.

Refusing to respond to lawful requests from Congress is a violation of an actual law. Not a norm, not a convention, but a straight-up freaking law.

Contempt of Congress is defined in statute, 2 U.S.C.A. § 192, enacted in 1938, which states that any person who is summoned before Congress who “willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry” shall be guilty of a misdemeanor and subject to a maximum $1,000 fine and 12 month imprisonment.

Congress can vote to hold these people in contempt tomorrow, and theoretically throw them in jail tomorrow for their refusal to comply with a Congressional investigation.

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It’s what Republicans would do if they were in control of Congress and LITERALLY ANYBODY BLACK defied them the way Mnuchin and Kline now defy the Democrats. It’s what Congress actually did to Eric Holder, holding him in contempt of Congress for turning over some, but not all, the documents they requested during the Fast and Furious inquiry.

Of course, the Holder scenario also shows the limit of Congressional power here. Holder, you might remember, didn’t actually go to jail, or turn over any additional documents, despite being held in contempt of Congress.

The problem is not Congressional authority, it’s Congressional enforcement power. Congress has no army. The Sergeant at Arms for the House of Representatives doesn’t (I don’t think) carry a gun. The main qualification for the Sergeant at Arms is being able to shout “Mr. Speaker, the President of the United States” really loudly. I honestly believe House Oversight Chairman Elijah Cummings has the legal authority to whup Steve Mnuchin’s ass and a jail him for up to a year in the basement of the Rayburn building. At the very least, I don’t think anybody has the authority to free Mnuchin from Congressional imprisonment, should he fall into their grasp. But, joking aside, it might literally take that kind of physical assault in order to enforce Congress’s inherent authority.

Because no other branch is going to do it. Yes, technically Congress can appeal to the executive branch to enforce Congressional subpoenas. But in the era of divided government, the executive branch is simply not going to compel its own officials to comply with Congress. President Obama didn’t force Holder to comply when he was held in contempt; President Bush didn’t force Harriet Miers to comply when she was held in contempt. Seeing as Donald Trump is ordering people like Mnuchin and Kline to ignore Congressional subpoenas, he will not turn around and enforce Congress’s contempt order.

Congress could try to make a criminal case out of it — it could hold these people in criminal contempt — but… that would end up back in the hands of the Justice Department. I think that the first cut at prosecution in a case like this would be the U.S. Attorney for the District of Columbia. In this case, that would be Trump appointee Jessie K. Liu. But Liu still has to answer to William Barr and Barr has already shown himself to be an embarrassing boot licker for the Trump administration.

That leaves a civil contempt case, which is what Congress has done in the past. And, in some prior cases, taking it to district court has resulted in favorable rulings for the committee at issue. The problem there is the timing. A proceeding against Mnuchin that started today would likely not be resolved before the 2020 election.

So if Congress lacks the physical enforcement power to put Mnuchin and Kline in jail, and the courts are too slow to force these people to comply with Congressional investigations in a timely manner, why do it at all? Well, first and foremost, BECAUSE THEY ARE IN VIOLATION OF THE LAW. Why in the f**k is that not enough of an answer for 90 percent of you? You can’t just ignore Congress because your president thinks laws don’t apply to him. Even in the Holder and Miers cases, those people tried, in good faith, to comply with as much of the Congressional requests as they believed they could. Fast and Furious was a fake scandal, invented in a Fox News fever dream, but Holder showed up to testify. He turned over documents. He didn’t pull what Kline is trying to pull, and simply not show up to the hearing for fear of angering Jared.

If you can’t even get a minimal attempt to cooperate with a Congressional subpoena, and there’s no consequence for not cooperating, then a Congressional subpoena means nothing. NOBODY SHOULD EVER ANSWER A QUESTION FROM CONGRESS AGAIN if this is the way we’re going to play it.

The other reason to force the contempt issue is to force a declaration of executive privilege. In the prior cases, presidents were forced to claim executive privilege to justify their underlings refusing to comply with Congress. Here… Trump stomps around on Twitter acting like he’s never claimed executive privilege, even as he orders his people not to testify or not to comply with document requests. Again, this BULLSHIT MUST END. Claim executive privilege or GTFO.

We have a legal process for handling these disputes, and if you don’t FORCE Trump to follow that process, then he continues to get to act out as if he is subject to no process or law on the books.

Nixon claimed all kinds of legal theories to keep his tapes secret. Eventually he resigned to keep his tapes secret. I don’t know if Trump would be willing to resign over keeping his taxes secret, but I know that I’m going to want that option. If it takes till 2022 for a court to order Trump to release his taxes, so be it, he could still be president by then anyway.

Democrats need to stop doing the Republicans’ work for them. #ImpeachtheMF. On the way there, hold these two peons in contempt. FOLLOW THE DAMNED LAW.

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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