Faced with all-out resistance from the White House, Democrats are turning to the courts as they grapple with a dilemma of limited options to enforce their subpoenas.
Amid a Trump administration blockade of subpoenas for numerous Democratic investigations, House Democrats are preparing a response that begins by holding officials in contempt. But they are also gearing up to fight their cases in the courtroom, acknowledging that the courts are likely their only subpoena recourse.
The flurry of defiance from the White House this week has underscored the limits of congressional subpoenas – especially in showdowns between the legislative and executive branches – where there is little precedent in the courts. Democrats may soon be forced to confront their new reality that enforcing subpoenas will require legal action that could take precious time and resources from a majority that will face its next election in fewer than two years.
“We need to take this to the courts,” Rep. Ro Khanna, a Democratic member of the House Oversight Committee, told CNN. “Congress’ power is at its peak when there are credible allegations of executive misconduct, such as in these cases. I have no doubt we will prevail in court.”
Khanna added: “The problem is this is a cynical strategy by the Trump administration to delay any investigation and attempt to run out the clock before 2020.”
Democrats are still holding out hope that their subpoenas — and contempt proceedings — will help them obtain information in the numerous investigations underway into the President’s finances, possible obstruction of justice and other matters in the Trump administration. They also say that former officials don’t have to follow the White House’s demands not to testify. And they’ve targeted private financial institutions like Deutsche Bank and President Donald Trump’s accounting firm Mazars USA, where they could have more success obtaining documents than from the administration.
But lawmakers and legal experts say that Democrats’ best chance of success lies with the judicial branch, although it will take time to win in court.
“The real issue with potential litigation over congressional subpoenas isn’t the substance, but the timing,” said Steve Vladeck, CNN legal analyst and professor at the University of Texas School of Law. “Even if the courts ultimately side with Congress in all, or even many, of these disputes, it could take a while — and with Congress getting nothing in the interim.”
The dispute between the White House and congressional Democrats has been building for months, but it spilled into the open this week as the Trump administration is openly staring down congressional subpoenas and encouraging former and current aides not to comply, no matter the cost. This week alone, the White House stonewalled Democrats on a host of issues:
- The White House insisted former White House official Carl Kline – who oversaw the White House security clearance process – not comply with a subpoena for a deposition with the House Oversight Committee.
- The White House has pledged to fight a House Judiciary Committee subpoena of former White House lawyer Don McGahn, who was subpoenaed to testify next month.
- Trump and his businesses filed suit to stop his accounting firm Mazars USA from complying with a subpoena from the House Oversight Committee to turn over financial disclosure information about the President’s business entities.
- The Justice Department said Wednesday that John Gore, the Principal Deputy Assistant Attorney general of the Justice Department would not comply with a Thursday deposition related to how a question about citizenship ended up on the census.
Asked about the subpoenas Wednesday, Trump said the resistance would continue across the board.
“We’re fighting all the subpoenas,” Trump declared, arguing that Democrats’ oversight is entirely politically motivated.
In order to enforce a subpoena of executive branch officials, House Democrats can hold individuals in contempt, a process that Cummings has threatened to do with Kline. But that could be the first step in a legal battle that could span months or even years.
“The only way we’re going to get Mr. Kline to testify is by going to court and subpoenaing him,” Rep. Jackie Speier, a member of the House Intelligence and Oversight Committees, told CNN’s Wolf Blitzer Tuesday. Asked directly if she was saying the subpoena power of the House didn’t have teeth, she said, “I think the only subpoena to carry the clout necessary is through the courts.”
Asked if the contempt citation is simply a symbolic move, Speier said: “I’m afraid so.”
Rep. Joaquin Castro, who also sits on the Intelligence panel, said that Democrats’ next steps need to be focused on the courts. “Go to court to enforce the subpoena,” Castro told CNN.
Prioritizing subpoena fights
A contempt citation can take many forms, from a symbolic vote on the House floor to the long-dormant inherent contempt, in which an individual or official is held against their will until they comply. Congress can also vote to refer someone to the US attorney in DC to put before the grand jury for potential prosecution, but that’s a limited option if the President has asserted executive privilege.
“There is no clear, simple, easy enforcement mechanism because it has depended on institutional relationships for so long,” said John Bies, the chief counsel at American Oversight and a former Justice Department lawyer. “The system has never really been tested this way.”
It’s been decades since Congress tried to invoke historical options like jailing someone.
“In the old days, the contemnor risked being arrested by the sergeant-at-arms and hauled off to the Capitol jail,” Vladeck said. “Because we don’t do that anymore, the downside is just political, not legal.”
The next option for the House is to sue to enforce the subpoena in court, a process that can take months or years. That can be done along with a contempt citation, but it doesn’t have to be done in tandem. As a result, congressional Democrats will have to make decisions about what to prioritize in an environment where the administration stands to gain more from stonewalling than complying with their requests.
In the wake of the special counsel Robert Mueller’s report, House Speaker Nancy Pelosi has encouraged her members to focus on their own investigations rather than launch impeachment proceedings. But in an era where Trump has pledged total resistance, the fight to get information could turn into a series of court battles that could force Democrats to make decisions about which fights to pick with the White House.
Democrats have issued a subpoena for the full, unredacted Mueller report. And, a fight for the President’s tax returns is also expected to go to court eventually. In upcoming weeks and months, members and aides will have to decide how many of the subpoena fights, including those subpoenas for individual interviews and testimony, they are willing to take to the courts where the process could drag out far beyond their majority or even Trump’s time in the White House.
“Ultimately the House is going to have to make decisions about what their commitment and will is,” said Andy Wright, former associate counsel to President Barack Obama in the White House Counsel’s Office.
For the White House, a strategy of delay works in their favor.
A person who has been involved with litigation enforcing congressional subpoenas told CNN that when it comes to stonewalling, both political parties have been guilty.
“Administrations in both parties … are always interested in further discussion, further negotiations and further delay. Time is on their side,” the person said. “Regardless of political party, they are always willing to sit down and talk because they could talk forever.”
Court cases are rare
One of the first cases Democrats could fight in court involves McGahn, the former White House counsel who was a major witness in the special counsel’s investigation into obstruction of justice. House Judiciary Chairman Jerry Nadler, a New York Democrat, issued a subpoena for documents and testimony from McGahn, and the White House may seek to prevent McGahn from testifying, citing executive privilege.
Congressional aides say that ultimately the decision is up to McGahn, not the White House, on whether he will testify. But if McGahn listens to the White House and refuses, they believe it’s a good test case for enforcing their subpoenas because McGahn waived privilege when he gave 30 hours of testimony to Mueller.
A source familiar with McGahn’s thinking said the former White House counsel will do what the law requires, but no decision has been made yet.
While some high-profile cases exist, congressional legal experts say there are relatively few recent examples where Congress has gone to court to force the executive branch to turn over information or testimony.
In one instance, the House Oversight Committee held then Attorney General Eric Holder in contempt of Congress during the Obama administration for failing to turn over documents related to Operation Fast and Furious, a gun walking scandal that left border patrol agent Brian Terry dead. The administration claimed the documents Republicans wanted were protected under executive privilege, and the committee sued for them 2012. The court forced the Obama administration to turn over documents in 2016 related to the subpoena, but even today the fight for the information hasn’t been entirely resolved.
In another example in June 2007, the House Judiciary Committee issued a subpoena to require Harriet Miers, former counsel to President George W. Bush, to testify before the committee about the firing of nine former US attorneys. Bush ordered her not to comply. It wasn’t until July 2008 that a judge ruled that Miers had to comply with the congressional subpoena, and Miers did not testify until June 2009.
Congress could have more success when it comes to subpoenas to private institutions. In addition to the Oversight subpoena to Mazars — Trump and the Trump Organization sued both the committee and accounting firm this week to stop it — the House Intelligence and Financial Services Committees have subpoenaed nine banks as part of their investigations into Trump’s finances and business dealings with Russia.
Democrats only need to turn to the last Congress for a case in which the House successfully fought a lawsuit over a bank subpoena. House Intelligence Chairman Devin Nunes issued a subpoena in 2017 to the bank of Fusion GPS, the firm that compiled the opposition research dossier on Trump and Russia. Fusion sued its bank to stop them from turning over records, and while a settlement narrowed the subpoena fight, the judge ultimately sided with Congress.
Joshua Levy, a lawyer for Fusion who argued the case, said Trump faces an uphill battle to block the Mazars subpoena.
“Courts defer to Congress’ representation of what lies within the legitimate legislative sphere and are reluctant to interfere in a congressional investigation,” Levy said.
CNN’s Kara Scannell contributed to this report.