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THE ASTORIAN • SATuRdAy, MAy 25, 2019
PRO-CON
Is Congress abusing subpoena authority?
AP Photo/Andrew Harnik
Attorney General William Barr arrives to testify before a Senate Judiciary Committee hearing on the Mueller report.
PRO: Democrats are doing
it this time; Republicans
have done it in the past
O
AKLAND, Calif. — Efforts are
power to punish or expel its own
underway to hold Attorney Gen-
members.
eral William Barr in contempt
Under the legal principle of inter-
pretation known as expressio unius est
of Congress, which in theory could
exclusio alterius, when one or more
result in a fine or jail time for Barr.
things of a class is expressly mentioned
House Speaker Nancy Pelosi warns
others of the same class are excluded.
of a “constitutional crisis.”
By specifically recognizing the
Unfortunately, if there is such a cri-
sis — and there isn’t — it would be the
power of Congress to punish its own
result of Congress’ abuse of its subpoena
members, an argument can be made that
authority, which it would be wise
the Constitution should be inter-
preted to exclude the power of
to rein in.
Congress to punish others with
Congressional investiga-
tions, subpoenas and threats to
contempt citations.
hold political rivals in contempt
Indeed, early American his-
tory has but a few examples
have become far too common in
where Congress used compulsory
Washington. Although the Dem-
ocrats are the ringmasters of the
WILLIAM J.
process to obtain facts relevant to
WATKINS Jr.
current circus, Republicans have
its legislative and administrative
engaged in simi-
functions.
lar conduct in the
Modern prac-
tice, however,
past.
AMERICA’S FOuNdERS
features a flurry
A subpoena
of subpoenas and
is a court-or-
REJECTEd THE IdEA
dered command
threats of con-
THAT A SINGLE BRANCH tempt proceed-
to either testify
ings. The courts
or produce doc-
OR INSTITuTION OF
uments or tangi-
have repeat-
edly recognized
ble objects. No
GOVERNMENT COuLd
an inherent con-
specific consti-
POSSESS uLTIMATE
gressional power
tutional provi-
sion authorizes
to issue subpoe-
SOVEREIGNTy.
nas and to punish
Congress to issue
individuals refus-
subpoenas.
ing to comply.
Congress claims the power is inher-
ent in its legislative authority, needed at
The Supreme Court, in the 1957
times to help determine whether an issue
case Watkins v. United States, stated in
or concern requires legislation.
sweeping fashion that “it is unquestion-
ably the duty of all citizens to coop-
Congress’s subpoena and contempt
erate with Congress in its efforts to
powers often are traced back to the Brit-
ish Parliament. It is argued that the Brit-
obtain the facts needed for intelligent
ish context provides an example and
legislative action.”
surely the Framers of our Constitution
The high court also has recognized
wanted Congress to be able to use com-
that the protections of the Bill of Rights
pulsion in its investigatory efforts.
such as right to counsel and right against
This analogy is misguided in as much
self-incrimination apply to congressio-
nal investigations.
as under the British form of government
The real constitutional crisis has
Parliament was considered sovereign,
nothing to do with the subpoena for the
possessing supreme power.
unredacted Mueller report, but instead
According to the eminent 18th-cen-
tury jurist William Blackstone, author
is the familiar theme of Congress act-
ing outside its enumerated powers so
of the “Commentaries on the Laws of
it resembles the omnipotent legislature
England,” Parliament “hath sovereign
Blackstone described.
and uncontrollable authority in making,
“Implied/inherent” powers have
confirming, enlarging, restraining, abro-
gating, repealing, reviving and expound-
chipped away at the restraints of the
ing of laws.”
Constitution for years and the current
So powerful was the Parliament that
spectacle in Washington is just the latest
“it can change and create afresh even the
example.
Constitution of the kingdom ...”
Congress should eschew such polit-
ical sideshows and work within its enu-
America’s Founders rejected the
merated powers to deal with real crises,
idea that a single branch or institution
such as our $22 trillion national debt,
of government could possess ultimate
border security and the ramifications of
sovereignty.
our failed nation-building exploits in the
Instead, popular sovereignty held
Middle East.
sway, where the people are supreme and
William J. Watkins Jr. is a research
delegate certain powers through written
fellow with the Independent Institute,
constitutions to their federal and state
and author of “Crossroads for Liberty:
governments.
Recovering the Anti-Federalist Values of
The U.S. Constitution grants the
America’s First Constitution.”
House of Representatives the express
CON: Not a constitutional crisis,
just a supercharged political
moment of democracy in action
W
ASHINGTON — Are we in
Well, the U.S. Constitution provides
a constitutional crisis? We
for congressional legislative powers
have the makings of a polit-
and it was clear that the investigative
ical crisis, but the constitutional cri-
powers needed to carry out that work
sis that many are declaring has yet to
were intended.
materialize.
The Supreme Court and other
Crisis is a loaded word. At times it
courts have upheld and clarified these
can be used in a widely agreed-upon
investigate powers. Some would say
context, but in the political realm it
that Trump’s refusal to comply with
can often be used to emphasize a polit-
congressional requests makes this
ical point and is much more
a constitutional crisis, but a
subjective in nature.
recent court decision regard-
ing a congressional subpoena
Take for example President
of Trump’s financial docu-
Donald Trump’s recent asser-
ments ruled that Congress does
tions that there is a crisis on
have the power to subpoena and
the border, which led him to
obtain such documents in carry-
declare a national emergency.
ing out its duties.
DON
This is driven by his per-
Others might argue that Con-
sonal and politically subjec-
KUSLER
gress is creat-
tive opinion on
ing a constitu-
immigration pol-
crisis by
icy. Many others
THE POLITICAL NATuRE tional
ordering the
disagreed with
release of sensi-
the president
OF OuR CuRRENT
tive documents
about whether
PuBLIC ANd ELECTEd
that the White
his definition
House may see
of “crisis” was
POLITICAL dISCOuRSE
as under exec-
correct. Others,
utive privilege
myself included,
LEAdS TO WIdE
restrictions or
believe that the
VARIATIONS ON WHAT
that the Depart-
“crisis” at the
ment of Justice
border was cre-
IS OR IS NOT A CRISIS.
may believe are
ated by Trump’s
hardline policies
to be kept clas-
sified to protect various functions of
and is a humanitarian crisis.
their work.
The political battles continue
However, again, court rulings have
around a host of issues, the rhetoric
often disagreed and accommodations
gets more heated with each battle, and
made allowing for and confirming the
at times that word — crisis — is used.
congressional right to investigate.
Democrats in control of the House
What we truly face in this moment
of Representatives, for instance, are
is a supercharged political problem.
working to use their constitutionally
A rule-bending and possibly law-
backed powers of investigation to take
breaking executive branch is protect-
up the work done in the Mueller probe
ing its political future, not the separa-
and determine the extent of Russian
tions of powers that they claim.
election interference and any role
The Department of Justice’s top
Trump, his campaign, or associates
leadership is stubbornly and sadly
played in the interference for ques-
tions left unanswered by the probe or
complying with these political
that was outside the probe’s scope.
motives.
Congressional Democrats, in
Court rulings past and present,
attempting to exercise their constitu-
however, provide our path out of this
tional duties of oversight, have asked
predicament even as legitimate over-
sight actions are characterized as
for documents, communications and
politically motivated.
witness testimony.
So what we have is a political cri-
Trump’s White House and personal
sis but not yet a constitutional one. If,
legal teams have responded to these
however, Trump through his related
fairly common and routinely honored
official and personal entities contin-
requests with blanket refusals, even
ues to resist legally obligated over-
going as far as to sue the House com-
sight compliance, if the judicial sys-
mittees involved to refuse legally obli-
tem somehow abdicates precedent
gated compliance.
and its constitutional role in ruling on
Again, the word “crisis” is used as
any legal challenges to congressional
numerous elected officials and com-
mentators declare that this activity is
investigative powers — then, we will
a “constitutional crisis.” But again the
ultimately see whether we also have a
political nature of our current public
constitutional crisis.
and elected political discourse leads
don Kusler is national director of
to wide variations on what is or is not
Americans for democratic Action, an
a crisis.
organization committed to liberal pol-
itics and policies.
But is this a constitutional crisis?