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Select Committee Needs to Address Subpoena Enforcement

The Democrats will hold a lame-duck session of Congress later this month and in December. A big question is what they use it for. An article written for The Bulwark by Chris Truax, a lawyer who is active in trying to preserve democracy in America, argues that one of the Democrats' top priorities ought to be enforcing congressional subpoenas. It is clear now that if you get a subpoena from the Select Committee (and other committees), and you negotiate with them and give them a little bit of material, but refuse to give them most of what they want, you won't be prosecuted or go to prison. This was Mark Meadows' approach. Only if you yell "Go f**k yourself" at the committee very loudly might you get a couple of months in jail. This was Steve Bannon's approach. Truax argues this needs to stop or Congress will no longer have any power to investigate the other two branches, or even the legislative branch.

Truax says that if Congress hits a refusenik with civil contempt, the process can take years. The cases about the Fast & Furious subpoenas went on for 6 years. That is absurd. In many cases, by the time the case plays out in court, control of Congress has changed and the new majority withdraws the subpoenas and no investigation ever takes place. As a case in point, the case over Donald Trump's tax returns has been going on for years. If the Supreme Court does not rule before Jan. 3, the new Republican majority will surely drop the case (although the Senate could take it up again and start all over).

In theory, Congress has another tool at its disposal: criminal contempt. If a witness is hit with that and tries to drag things out in the courts, there is a real danger of going to prison, which tends to make witnesses more cooperative. But Congress doesn't have real power here. All it can do is politely ask the Dept. of Justice to pursue the case. If it involves the sitting administration, how likely is it that the AG does that?

Truax says the real solution is for Congress to pass a new law giving it direct authority to go to court to enforce its subpoenas and not depend on the DoJ. The law could say that if a court upholds the subpoena as valid and the witness fails to comply immediately, the judge could find the witness in contempt of court and order him or her imprisoned immediately. In the absence of a law like this, it is virtually impossible for Congress to carry out any oversight of the Executive Branch if the Executive Branch isn't interested in aforesaid oversight. (V)

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