Democratic Rep. Adam Schiff proposes reviving inherent contempt—with some changes

Real Time with Bill Maher / YouTube Rep Adam Schiff Any Living Adult 1557517572.jpg...
Real Time with Bill Maher / YouTube

Adam Schiff may still be collecting attacks from Donald Trump, but his leadership of the House Intelligence Committee is actually attracting praise from Republican members of the committee. Schiff even got Republicans to sign on to a subpoena for the entire unredacted Mueller report, including the grand jury testimony and all supporting materials.

Schiff has been such a persistent thorn in the side of those attempting to cover up, sidetrack, or simply end the Russia investigation—such as ranking Republican committee member Devin Nunes—that it’s easy to forget that less than a year ago, Schiff was one of the voices adamantly saying that Democrats should not impeach Trump. As with other leading Democrats, Schiff’s position on impeachment has shifted, as much because of Trump’s continued obstruction as because of the contents of the special counsel’s report.

Now Schiff is calling for impeachment hearings to begin, at least in part because simply beginning hearings would give Congress additional options in seeking the materials that Trump has been stonewalling. And, as reported by MSNBC’s Rachel Maddow, Schiff is advocating that Congress make use of one of the weapons it hasn’t picked up since 1935: inherent contempt.

Inherent contempt allows Congress to detain those found in contempt until they provide subpoenaed testimony or documents, without having to seek a judgement in court. Congress had used inherent contempt to obtain information for almost a century, and the practice (within some fairly firm restrictions) was upheld by the Supreme Court. It stopped being applied chiefly due to rules that required an in camera hearing on the House floor, resulting in lengthy delays and a Congress-stopping session to deal with every incident.

Schiff made the point that, with William Barr in charge, the Justice Department is now in the position of saying that a sitting executive can’t be indicted, only impeached, while at the same time declaring that it won’t hand over the information that could be used in an impeachment. But while numerous articles have been written discussing the few options that Congress has to break through this wall, Schiff believes there are other possibilities available.

If Congress has the authority to apply inherent contempt without going to court, it also has the ability to change the rules around inherent contempt. It would be within the power of the House to set rules around inherent contempt that do not require a trial before the whole House. And, as Schiff points out, the penalties for inherent contempt don’t necessarily have to mean cleaning out a storeroom in the Capitol basement and posting a guard. He said, “Used to be we imprisoned people, but we could also fine them … $25,000 a day until they comply, or some other number. That may be an even swifter remedy if we have to embark on it. And we may have to.”

The biggest reason that inherent contempt hasn’t been revived since the 1930s isn’t really that it was such a strain on the House. It’s that it hasn’t been necessary. Attempts by the executive branch to hide information and resist congressional subpoenas have been relatively rare—rare enough that handling them through the courts has seemed a reasonable option. But Trump’s blanket order for all current and former staff to refuse both to testify and to hand over documents, even when they are in receipt of a subpoena, along with actions such as placing the entire Mueller report under executive privilege and ordering the IRS to refuse to hand over legally requested tax returns, strongly indicates that the Congress needs an extraordinary response to extraordinary obstruction.

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Sick of the Con
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Sick of the Con

Stop talking and start doing Dems.