The Rarely Used Congressional Power That Could Force William Barr’s Hand

It hasn’t been done in nearly a century, but House Democrats could arrest the attorney general after they find him in contempt.

Representative Jamie Raskin of Maryland, a Democrat on the House Judiciary Committee (J. Scott Applewhite / AP)

Updated at 4:32 p.m. ET on May 8, 2019.

Impeachment is Congress’s most famous, yet rarely exercised, power over wayward presidents and other federal officers. But as Trump-administration officials continue to defy House subpoenas related to Special Counsel Robert Mueller’s investigation, Democrats in control of the chamber could turn to an even blunter weapon in their arsenal: arrest.

Courts have recognized that the House and Senate each have the authority to enforce their orders by imprisoning those who violate them—literally. They can direct their respective sergeant at arms to arrest officials they’ve found to be in contempt and bring them to the Capitol for trial and, potentially, jail. Congress hasn’t invoked what’s known as the “power of inherent contempt” in nearly a century, but the escalating clash between two co-equal branches of government has Democrats talking about moves previously deemed unthinkable.

“Its day in the sun is coming,” Representative Jamie Raskin of Maryland told me by phone on Tuesday. Raskin, a second-term Democrat and former constitutional-law professor, sits on the House Judiciary Committee, which on Wednesday approved, on a vote of 24–16, a resolution finding Attorney General William Barr in contempt for his refusal to give Congress the full, unredacted Mueller report. As lawmakers met to consider the move, the White House carried out its threat to assert executive privilege over the document.

The contempt resolution now goes to the full House, where it will likely clear on a party-line vote with the backing of Speaker Nancy Pelosi, who announced on Wednesday morning that she supported holding Barr in contempt. From there, Democrats would have three options to force Barr’s hand: They could refer the matter to the U.S. attorney in Washington, D.C., who would decide whether to launch a criminal prosecution of his own boss, the attorney general. Democrats could turn to the courts to enforce the subpoena. Or they could take matters into their own hands and call their sergeant at arms. Raskin himself brought up the arrest option when I asked him how far this confrontation could go, even as he acknowledged that not many members of the House were aware of that particular congressional power, much less supported its use.

The debate over how congressional Democrats intend to defend their constitutional prerogative to oversee the executive branch extends beyond Barr; Donald Trump’s administration is challenging the House’s authority across a range of areas, from the Ways and Means Committee’s bid to get the president’s tax returns from the IRS to the Judiciary Committee’s request to hear from both Mueller and one of his key witnesses, former White House Counsel Don McGahn.

“This is not some peripheral schoolyard skirmish,” Raskin said. “This goes right to the heart of our ability to do our work as Congress of the United States.”

Still, Democrats have been reluctant to launch impeachment proceedings against Trump for fear that they would backfire politically. Would they really send the House’s sergeant at arms down Pennsylvania Avenue to the Department of Justice with instructions to haul the nation’s chief law-enforcement officer to the Capitol, in handcuffs if necessary? House Republicans made no such effort after they voted to hold then–Attorney General Eric Holder in contempt in 2012 over his refusal to turn over documents connected to the “Fast and the Furious” probe.

In our interview on Tuesday, I spoke with Raskin about the Judiciary Committee’s confrontation with the Trump administration over subpoenas and the bubbling debate within Congress over impeachment. Our conversation has been lightly edited for length and clarity.

Russell Berman: If the House does vote to pass the resolution to hold Barr in contempt, where would it go from there?

Jamie Raskin: Well, first of all, at that point the contempt finding is complete. In other words, that goes on his permanent record, as you might say. He has been held in contempt of Congress, meaning in contemptuous or contumacious defiance of a lawful order of Congress, okay? So at that point, contempt is complete. However, we still need to enforce the contempt resolution in order to obtain compliance with the subpoena. There are different ways of doing that. There could be a criminal prosecution, but given the object of the resolution, there might be a problem getting the U.S. attorney to act forcefully and with dispatch. But we also have the power to go to court.

We also have the power—and I should say I’m speaking for myself here, because I don’t know how many people I’ve been able to convince about this—but we do have the power to exercise the so-called inherent powers of contempt of Congress. It was ruled in the 19th century, in a case called Anderson v. Dunn in 1821, that Congress has the power to enforce its own orders. Just as a court can enforce its orders, Congress can enforce its orders. And in the 19th century, Congress had the sergeant at arms arrest and detain people until they complied with lawful orders of Congress. And we would have the power to fine people who were out of compliance with the law. So that provides another avenue.

Berman: If it got to that point, do you think the House would have the attorney general arrested by the sergeant at arms?

Raskin: Well, the vast majority of the Judiciary Committee, much less the House itself, are just not aware of this process. So it’s just premature to be talking about it. But, you know, its day in the sun is coming. We will educate people about the power of the House to do it. The executive branch is acting in categorical bad-faith contempt of Congress. This is not like a dispute over one document or the timing of the arrival of a particular witness. This is the president of the United States ordering the executive branch not to comply with the lawful requests of Congress.

The Supreme Court has emphasized that Congress has the power of inquiry and investigation. This is essential to our lawmaking function. We have a responsibility to research how the current laws are working and what conditions are that might require legislative changes. We also have a specific power, the Supreme Court has emphasized, to investigate corruption, self-dealing, fraud, waste, and abuse in the executive branch of government. So, you know, this is not some peripheral schoolyard skirmish. This goes right to the heart of our ability to do our work as Congress of the United States.

Berman: From your point of view, would you personally support and advocate this move, which in modern times is unprecedented, to have the attorney general arrested by the sergeant at arms? Would you personally advocate that?

Raskin: Well, no, nobody has advocated that specifically. But I just want to make sure that we have all instruments on the table, and we should be aware that Congress has inherent powers of contempt that can relate to fines, orders, as well as arrests. But I, you know, nobody’s calling for that at this point.

Berman: Is there a risk that if the president does resist all of these attempts by the House to conduct its oversight, and if he wins in the courts, that it would actually set a new precedent for executive authority? That he could end up not only skirting oversight himself, but that, through court rulings, it could end up that the presidency itself winds up with more power?

Raskin: Well, it’s definitely been suggested by a number of people that the president has succeeded in packing the courts, including the Supreme Court, to the point that they essentially are part of the White House political operation. I hope that this is not the case.

In any event, we know that the executive branch is acting in categorical defiance of lawful orders of Congress for information. And whether or not we can get the Supreme Court to agree with us in this or that case is irrelevant to that broader judgement. We will decide, as the House of Representatives did when it drafted the third article of the Nixon articles of impeachment, whether President Trump has been acting in an unlawful way to obstruct the work of Congress.

Look, the obstructionism that was canvassed so methodically by Special Counsel Mueller in his report came leaping off the pages and right onto our doorstep and into our committee rooms. The president has been obstructing us with the same kind of vigor and zeal that he obstructed the special counsel.

Berman: Do you expect that the Judiciary Committee will follow this same process for each of the potential refusals to comply? Barr also refused to appear before the committee. Do you expect a second contempt process to begin if he continues to refuse to testify, and then would that same process also apply to McGahn and anybody else who refused to testify?

Raskin: Well, let’s broaden the question. The president essentially is trying to pull a curtain over the executive branch of government, and to systematically thwart and defy the will of Congress. The word on the street is that they are begging for an impeachment, and they think this is the proper way to get it. And I just want to say about that: If we are going to impeach the president, we are going to do it on our own schedule and at our own pace. We are not going to be pulled into it just by a series of provocations from the president.

In our last two Judiciary meetings, I counted Republicans invoking impeachment a dozen times. If they are so eager for impeachment and they think the time is right, they should go ahead and introduce impeachment articles on their own. Otherwise, they’re going to have to trust our strategic and constitutional judgments.

Berman: Lastly, there has also been the suggestion that Barr should be impeached himself. Is that a path you could see the House going down, or is the contempt path the better one?

Raskin: Well, there are certainly members calling for the impeachment of William Barr, and it is likely that he has committed high crimes and misdemeanors supporting and advancing the president’s project of obstructing Congress in doing its work. So that becomes a strategic question of what we’re going to do in order to get to the truth that is in the Mueller report and to defend our constitutional system of government. And I can’t say that any of those judgments have been made yet.

Berman: You mentioned the Supreme Court and the president’s ability to install conservative judges more broadly. Is it possible that Trump will just win this fight—that the courts might just rule in his favor?

Raskin: I find it hard to believe that the courts have been so corrupted by Donald Trump already that they would completely abandon the rule of law. But we live in a time where nothing is normal. Let’s hope for the best, be prepared for the worst, and go fight like hell for the Constitution.