Overseeing the executive branch is often a contentious process, but there are rules in place to make sure that the process works. In fact, congressional authority to conduct oversight is rooted in its most fundamental constitutional power: legislating. In order to assess existing laws or consider new ones, Congress has to be able to uncover, and even compel, information. As the Supreme Court has noted, Congress’s power clearly extends to oversight of executive agencies, which Congress created and funds. Congress can get the information it needs in many ways, whether by holding hearings or requesting documents. When asking doesn’t work, Congress can compel responses through subpoenas and punish people by holding them in contempt.
Though it is unfortunately and dishearteningly normal for presidents to resist congressional oversight to a certain extent, the Trump administration may be taking such resistance to a new level. Attorney General William Barr recently refused to appear before the House Judiciary Committee while simultaneously refusing to comply with a subpoena from the committee requesting access to the unredacted Mueller report and supporting documents. The Trump administration has also refused to provide the House Ways and Means Committee with the President’s tax documents that it has requested.
Recent comments by President Trump and other administration officials indicate that they may go so far as to categorically defy all oversight subpoenas. And indeed, individuals tied to the Trump administration are actively defying multiple subpoenas. Meanwhile, Trump has sued multiple banks to block the House Intelligence and Financial Services committees from gaining access to his financial records, which they had requested.
Reasonable people can disagree on the merits of particular investigations, but what we should all be able to agree on is the constitutionally embedded reality that Congress has both the right and the duty to conduct oversight of the executive branch, and that congressional subpoenas in particular must be honored — no matter the context. If these subpoenas are ignored, it is incumbent upon all members of Congress, regardless of party, to consider citations of contempt against the relevant administration officials.
In light of stonewalling and defiance, a contempt citation is a vital step to assert Congress’s authority. These votes can be defining moments for those of us who have the privilege to be elected to the United States Congress.
Our experiences could be instructive today.
In February 2008, Rep. Wayne Gilchrest took such a vote across party lines to hold George W. Bush’s former counsel, Harriet Miers, and former chief of staff Joshua Bolten in contempt for failing to testify before Congress and provide documents. In this case, the House was pursuing a legitimate inquiry into the potentially unscrupulous and politically motivated mass termination of federal prosecutors in 2006. There was evidence that Miers was involved in plans to fire the prosecutors and Bolten possessed potentially relevant documents.
In June 2012, Rep. Nick Rahall faced a similar choice. In this instance, the Obama administration had resisted and ultimately did not comply with congressional subpoenas related to the failed “Operation Fast and Furious.” In this case, the subpoena concerned an undercover operation that tried to track illegally purchased guns that the government knew were being sold. The Justice Department refused to turn over documents Congress requested for its investigation into the program and, as a result, the House voted to hold then-Attorney General Eric Holder in contempt. All told, 17 Democrats voted in favor of the contempt citation.
Our contempt votes in 2008 and 2012 are by no means the only examples of lawmakers taking difficult stances for the right reason. History shows us how important it is for members of Congress to act in the broad interest of the country as opposed to the narrow interest of a party. Remember that it was a bipartisan group of senators who formed the Senate Watergate Committee in 1973, some putting their politics aside to do what was necessary to hold the executive branch to account.
The committee and the report it produced in 1974 ultimately helped resolve one of the most shocking scandals in American political history. The committee’s Democratic chairman, Sen. Sam Ervin, its Republican vice-chairman, Sen. Howard Baker, and their five colleagues worked cooperatively in the pursuit of the truth around the Watergate scandal and toward the eventual healing of a national wound.
We do not write to chastise current members of Congress, but rather to urge action in the institutional interest. We know how hard it can be to vote against the party line. Above all else, we write this because we are strong supporters of the institution of Congress and do not wish to see its legitimacy and authority undermined for partisan advantage.
If Congress conducts oversight and demands accountability only when the majority party faces a White House controlled by the opposing party, then Congress is not conducting true oversight at all. Accountability will become a mere matter of political point scoring, not the good stewardship of public trust it should be. In such an environment, the American people will continue to lose faith in Congress and the efficacy of our democracy. We urge all members of Congress to remember why we chose a life of public service in the first place — and remember that we were all elected to serve the people, not the party.
