The fight for control of information from the Russia investigation is heading into uncharted legal territory. The House Judiciary Committee has voted to hold Attorney General William Barr in contempt of Congress for his refusal to provide the committee with the full, unredacted version of Special Counsel Robert Mueller’s report. Earlier this month, House Intelligence Chairman Adam Schiff publicly signaled his intention to impose fines on the federal officials who refuse to comply with congressional subpoenas. “We’re looking through the history and studying the law to make sure we’re on solid ground,” the California Democrat said, revealing that he and his staff are aware that the move would be unorthodox and unconventional. Under these circumstances, the trepidations of the Democratic leadership are understandable. Yet the important thing is: Fining Barr would be legal—even if enforcing the fine could itself prove tricky.
The legal framework governing situations such as this is seldom used and little known. As it happens, I studied it for a forthcoming law-review article. Although the Constitution does not expressly provide Congress with investigatory power, it is a logical extension of the power to legislate.
Much as the president needs to be able to hire people to execute the nation’s laws, the House and Senate need to be able to collect information to make those laws in the first place. In the 1927 case McGrain v. Daugherty, the Supreme Court stated that a “legislative body cannot legislate wisely or effectively in the absence of information.” Despite the highest court’s imprimatur, Congress’s requests for information during investigations have not always been met with cooperation from the executive branch. When informal requests for information are disregarded, Congress exercises a power usually reserved only for the courts: It issues a formal subpoena. As with a subpoena issued by a court, the person receiving the subpoena is on notice that further refusal to disclose the requested information will open the door to punishment.