A subpoena isn’t a request: it’s an order.

What leverage do the Judiciary Committees have over the Administration with respect to the Overblown Personnel Matter? Why shouldn’t Fred Fielding just stonewall to his heart’s content?

Answer: a Congressional subpoena isn’t a request, it’s an order. (Sub poena: “under pain.”) If the order is ignored, the Committee that issued the subpoena asks the parent body to vote a Contempt-of-Congress citation. Contempt of Congress is like contept of court: defiance means jail. In principle, the Justice Department could refuse to prosecute but at that point even the Republicans in Congress would probably have reached the limits of their tolerance. In addition, either House of Congress has (though it seldom uses) the power to order its Sergeant-at-Arms to simply arrest anyone who defies a subpoena; that power, like civil contempt of court, is coercive rather than punitive. That is, confinement lasts only as long as defiance lasts.

The person subpoenaed can challenge the propriety of the subpoena on various grounds: for example, that the investigation doesn’t actualy serve a legislative purpose, or that the material is covered by the attorney-client privilege. If the Congress has exercised its arrest powers, the person arrested can challenge the arrest by means of the writ of habeas corpus. (So far, Congress has no facilities at Guantanamo.)

Maybe the courts would be take seriously a challenge based on “executive privilege” (which, since that phrase doesn’t actually occur in the Constitution, must be one of those penumbras of emanations conservatives so despise when they’re not using them). But there’s no way the courts are going to let “executive privilege” interfere with an impeachment inquiry; impeachment of executive-branch officials is among Congress’s specifically-delegated powers. Now that we know that the Sampson memo about the Carol Lam problem was written the same day the LA Times reported that Lam’s investigation of Cunningham/MZM/Foggo was expanding to Jerry Lewis, thenthe chair of House Appropriations, there’s more than adequate probable cause for an inquiry into whether various people in the White House and DoJ might have conspired to obstruct justice.

If it looks as if there’s going to be a subpoena battle, perhaps the Congressional Democrats might want to file Resolutions of Inquiry covering all of the white House and DoJ players now known to have been involved in the firing.

After the spectacle of the Clinton impeachment, my guess is that impeaching the President, even this President, would be unpopular with the voters. But I can’t see any political downside to impeaching Karl Rove.

Footnote Of course there is one undoubtedly valid privilege against having to testify: the Fifth Amendment’s guarantee against being forced to incriminate oneself. Rove, or whoever, could avoid testifying by claiming that privilege, though somehow I doubt they’d want to. But that applies only to testimony; someone can be forced to produce an incriminating document.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com