Law vs. Power: Trump Tests the Limits of Both, Now in the Context of Congressional Subpoenas

Congressional subpoenas are extraordinarily powerful.  Or they’re paper tigers.

The reality:  It depends a lot on the recipient.

Against a private party, and particularly a public company, a congressional subpoena remains extraordinarily coercive.  Against a government official with the backing of his or her administration, not necessarily.

Let’s start with a private party—the everyday recipient of a congressional subpoena.  Maybe a prescription drug company; maybe a social media giant; maybe an oil company executive, maybe a professional baseball player.  Each of those recipients can be expected to snap to attention at even the hint of such a subpoena.  Why?  Well, such subpoenas can impose an overwhelming burden, in terms of expense and distraction, in gathering, sorting, and producing documents.  Such subpoenas can lead to embarrassing, or at least unappreciated, public and private depositions and hearings.  Such subpoenas can threaten the recipient’s privacy and legal privilege.  They can lead to unwanted publicity.  They come, even, with the specter of criminal investigations for false statements, perjury, contempt of Congress, or obstruction of Congress.

But what about a government official with the backing of his or her presidential administration?

Attorney General Eric Holder withheld documents in response to a House subpoena, was held in contempt, and ultimately was ordered by a court to produce most of the documents over which the Obama administration had claimed privilege.  But those productions came many years after the subpoena response deadline, and only after protracted litigation—which litigation remains ongoing to this day.

And now multiple Trump administration officials are openly defying congressional subpoenas, with President Trump recently vowing to stonewall the committees issuing those subpoenas.

Attorney General Holder, and now President Trump, can manage their more aggressive approaches because their flanks are covered.  They have effectively unlimited litigation resources to devote to document collection, review, and production should they ever need to do so.  They have vast public relations resources at their disposal to battle in the court of public opinion.  They control whether the Department of Justice in fact will bring any prosecution.  And they are confident that any civil enforcement order will take years for Congress to obtain, at which point the relevant moment (and, indeed, many of its congressional actors) long ago will have passed.

Congress’s remaining threat:  inherent contempt.  I.e., the arrest of a contumacious official by the Sergeant at Arms, with a trial at the bar of the House or Senate.  That was once a regular practice.  But the “arrest” of an executive branch official, and particularly one with a security detail, would be unseemly at best.  Moreover, it might lead only to the official’s prompt release, perhaps on a habeas corpus petition, pending a legal challenge, which itself might drag on indefinitely.

In the long arc of history, law may prevail over raw power.  In the more immediate term, that proposition is more dubious.