Power Grab - Jason Chaffetz Page 0,56

happy to live with that precedent if the Trump administration engages in those same delay tactics?

Now Democrats need that congressional authority they so casually ceded to the presidency. As they subpoena government witnesses in their effort to second-guess the results of the Mueller investigation, they are faced with a president who already cooperated with an in-depth investigation and is disinclined to do so again.

An exasperated Judiciary Committee Democrat, Rhode Island’s David Cicilline, in an April interview with MSNBC, parroted Republican talking points his party had vociferously rejected during the prior administration. “First of all, Congress cannot allow the president to prevent us from oversight,” he told Hardball’s Chris Matthews in a discussion. But that’s exactly what his party did during the Obama-era Fast and Furious gunrunning operation.

Cicilline went on to outline the options Congress has to enforce those subpoenas, telling Matthews:

We have three things Congress can do if witnesses refuse to comply with a lawfully issued subpoena. One is, refer to the Department of Justice for prosecution because that’s a crime. We don’t have a lot of confidence Mr. [William] Barr will do that. The second is to start a civil proceeding and get a citation from the court to bring that person into contempt and do it that way. But there’s a third method we can do right away. Since 1821, the Supreme Court has recognized the inherent right of Congress to hold individuals in contempt and to imprison them. That was reaffirmed in a case in 1935. Congress has the responsibility, and I would say the obligation, to hold individuals in contempt who do not comply with a lawful subpoena, who do not produce documents, and we ought to be prepared to imprison them because we have the inherent right.

Now he sounds like me. I also raised the question of whether Congress would have to resort to imprisonment to enforce subpoena power. I have a little bit of experience pursuing those avenues outlined by Cicilline. He is not going to be very happy when he finds out what’s at the end of each of those paths.

Waiting for the Justice Department to prosecute itself is a fool’s errand. Cicilline admits this, saying he has no confidence Attorney General Barr would prosecute anyone for failing to comply with a congressional subpoena. He’s right. Barr probably won’t. His predecessors didn’t. And Barr has a better case for failing to comply. His agency has already conducted a full-scale investigation, with full cooperation from the president, including the waiving of executive privilege. They aren’t necessarily hiding anything from Congress. They’re simply refusing to do the same thing twice.

Given that fact pattern, do Democrats really want to proceed to the next option on Cicilline’s list? Is this really the case Democrats want to take to court to defend congressional authority? As much as I would like to see Congress’s authority affirmed, this is not the case I would want to bet the farm on. And if they take this case before the courts and they lose, how do we recover from that? Better to take a stronger case.

As for the imprisonment route, that is perceived as an extreme response for which there may be a political price to pay. Personally, I think they should go for it. But I have my doubts whether Pelosi’s team will be any more supportive of it than my leadership was, particularly since Democrat leadership thus far has been squeamish about pursuing limits to executive power that might apply when their own party is in power.

They’d like to prevent President Trump from unilaterally changing immigration enforcement policies. But they are not willing to rein in the very power President Obama used to offer short-term amnesty to Dreamers through his Deferred Action for Childhood Arrivals (DACA) program. They’d love to stop the president from using his national emergency authority to build a wall, but they stop short of actually legislating away the president’s power to declare national emergencies. Likewise, I think it’s unlikely Democrats will pursue a congressional imprisonment option that could be used to give Republicans the upper hand against a Democratic president.

They could go the route of legislating limits on executive privilege. But that, too, would cut both ways. I am a big believer in executive privilege. We want the president to get the widest perspective on anything that happens or that could potentially happen. His advisers should be able to be candid without fear that their counsel will ultimately be publicly disclosed.

That said, I believe the Democrats