So the SCOTUS said that congress CAN hold a person in contempt AND arrest them!

[Maraya1969]

I was under the belief, from what I was hearing as to why they were not arresting any of the people who are refusing Congressional subpoenas that they don't have the authority. Well apparently they do! Time magazine says they should arrest Bolton.


https://time.com/5736539/john-bolton-impeachment-testimony/?fbclid=IwAR2Hv9Zf-YYD1dXWIckaJPeBOpGamcbw21fPRBK642xM4zTcEn7HvgrEnDk


If John Bolton Keeps Refusing to Testify, Congress Should Arrest Him

<snip>

Under the Constitution, Congress is not impotent in the face of brute obstruction.

The Supreme Court has repeatedly ruled that each chamber of Congress can hold a person in contempt for flouting a legislative subpoena, and – as Justice Brandeis explained in Jurney v. MacCracken – each chamber may also coerce obedience “by means of arrest.” In other words, the House Sergeant at Arms may take people into physical custody until they provide information withheld from Congress.

Over 90 years ago, the Supreme Court in McGrain v. Daugherty took note that “mere requests” for information “often are unavailing,” and that information voluntarily provided to Congress “is not always accurate or complete.” The Court thus agreed with Congress that various “means of compulsion are essential to obtain what is needed” — that is, that “the power to inquire – with process to enforce it – is an essential and appropriate auxiliary to the legislative function.” In fact, because coercive custody was a familiar legislative practice that pre-dated the Constitution, the Court concluded that it was an inherent congressional power granted by Article I.
That inherent power has not evaporated over the last century.

That Congress can imprison a person who defies a legislative subpoena does not mean, however, that it should do so at every opportunity. Quite to the contrary – especially in cases involving highly partisan disputes, where discretion and sound judgment are the measure of good governance. Jailing someone for contempt is a drastic action and is sure to fuel political strife. Usually, the most responsible way for Congress to enforce a subpoena is to undertake civil proceedings in federal court. That can be a long process, though, and time is of the essence when the occupant of the Oval Office may have betrayed the country.

[triron]

1. Correct. Seems media and many in congress are still not wanting to admit this.

[spanone]

2. K&R...

[StarfishSaver]

3. Not exactly

The Court in that case ruled that Congress has the subject-mattet jurisdiction to do use its inherent contempt authority to arrest people, but never ruled on the procedural/geographical jurisdiction issues that would be at play here. Thus, if Congress tried to arrest anyone, Court precedent would not make it a slam dunk, but instead, the defendant would get an injunction and appeal, the case would drag out and no arrest would be made any time soon. And even if, somehow, Congress managed to arrest anyone before they got an injunction, they'd be released on habeas corpus grounds within hours, if not minutes, and then appeal.

In other words, we'd be right back where we are now - waiting for the courts to rule.

Inherent contempt sounds great as a concept, but there are good reasons the House isn't wasting time running down that rabbit hole here. Among other things, it wouldn't be effective in getting anyone to testify and it wouldn't enable the House to avoid a drawn-out court process.

[RKP5637]

6. Thanks for the additional clarification on this!!!

[StarfishSaver]

68. I try ...

[RKP5637]

70. ...

[Maraya1969]

7. Well, what they are doing now is not working is it? Bolton needs to testify.

And so do the rest. At least if they started the process they could make the courts move on it.

[StarfishSaver]

8. "They could make the courts move on it"

An odd argument considering you're recommending this as the alternative to waiting for the courts to move on existing cases that are already well underway and close to being decided. If they haven't gotten the courts to "move on" these cases fast enough for your taste, I'm it sure why you think a whole new traunch of cases is going to make them move any faster.

[Maraya1969]

12. Don't you think if handcuffs were involved the courts might move faster?

[StarfishSaver]

17. No

Because if "handcuffs were involved" - again with the "it would be so cool" wishful thinking - the court would immediately order the handcuffs off and the defendant released while it took its sweet time deciding the case.

[oldsoftie]

21. I believe he will, if the courts say McGahn must.

And i'm not too sure Bolton would try to run cover for trump

[Maraya1969]

11. Here is more from the text

If ever there were a valid basis for Congress to punish contempt by imprisonment, it’s a private citizen’s refusal to give evidence that is crucial to presidential impeachment proceedings. There are few congressional actions that are as grave and requiring of a more thorough investigation. The House Intelligence Committee has so far declined to subpoena Mr. Bolton, with an official claiming that it has “no interest in allowing the administration to play rope-a-dope with us in the courts for months.” But that reservation was clearly founded on the committee’s assumption that its subpoena would be tested in court through civil enforcement proceedings. Considering its power to arrest Mr. Bolton, however, perhaps the House should reevaluate that decision – thereby giving Mr. Bolton the incentive to reevaluate his.

[Maraya1969]

14. What reason would Bolton use for an appeal so he can avoid testifying to congress?

[StarfishSaver]

16. Among other things, lack of geographical jurisdiction, habeas corpus,

as well as all of the arguments currently being used to block current and former administration officials from testifying (e.g., executive privilege, blanket immunity ...)

There are enough available arguments to keep this tied up in court for months, if not years.

And even if, for some bizarre reason, they managed to arrest him and get the arrest held up in court and forced him to appear in the foreseeable future (and sooner than the current processes already going through the courts would take), he could just show up and refuse to answer questions. And then what?

It's easy for non-lawyers who don't know the law or process to demand the House take certain actions, assuming the most favorable outcome they want will occur, but the leadership and lawyers actually managing the case have to play out every scenario and make decisions based on reality, not wishful thinking.

[Atticus]

32. Would they, in your opinion, have geographical jurisdiction within the Capitol Building? nt

[StarfishSaver]

36. Maybe

[Atticus]

55. If not there, where? Surely the courts in JURNEY and MCGRAIN did not waste time discussing

a power which could never be exercised. "Decisive utterance" and "obiter dictum" are not intended to be synonyms.

I understand that no specific geographical jurisdiction has yet been announced, but it does not follow that there is, therefore, NO such jurisdiction. Since we are discussing a power of the U.S. House, perhaps their geographical jurisdiction is the United States. I am not asserting that is so, but I am also not prepared to accept that these courts' decisions are nullities.

[StarfishSaver]

57. I say maybe because the Court has never addressed this issue

It would be a case of first impression and we don't know for sure how a modern court would approach this.

[Atticus]

60. That's fine, but I asked YOUR opinion, which I do value. nt

[StarfishSaver]

62. My opinion is that it isn't clear

The geographical jurisdiction of the Sergeant-at-Arms and Capitol Police is defined in 2 U.S. Code § 1961, which gives them the authority to make arrests on Capitol grounds "for any violations of any law of the United States, of the District of Columbia, or of any State, or any regulation promulgated pursuant thereto ... [and] to make arrests, without a warrant, for crimes of violence."

I'm not sure whether a court would read this as a limiting description or as non-exclusive. In other words, the question would be whether the Capitol Police's arrest power is strictly limited to arresting people for violating the law (for example, trespassing, disturbing the peace, assault, or trying to bring in a weapon) or if, in addition to the powers specifically described, they also have the power to arrest based on other activities, such as an inherent contempt citation from a House committee or Speaker.

I think a court would be more likely to rule that they could only arrest people for violations of the law on the grounds as set forth in the statute. But it's possible the courts could rule that the Capitol Police power to arrest in such cases need not be specifically delineated in this statute but emanates from and is integral to the House's inherent contempt power since such a power without the power to enforce it is meaningless.

So my answer still is, I really don't know.

[Maraya1969]

33. Yes, well it is easy for lawyers to come on here and adopt an "I know all" attitude and

refuse to even entertain other opinions.

Don't you think that lawyers were in on that Time magazine article? Are we to just accept that you know more than them because you are on DU?

I realize this place attracts smart people but there are smart people in lots of places.

[StarfishSaver]

40. I have no idea if "lawyers were in on the Time article"

and, if so, whether they have any experience in this area.

But I do know that Pelosi, Schiff, the Committees and the House do have expert lawyers advising them and that they know much more than the non-lawyer armchair quarterbacks who clearly don't know a fraction of what they do about any of this.

[jberryhill]

77. "Media lawyers" primary competence is attracting eyeballs

Boring opinions don't do that.

But there are lawyers on both sides of every freaking lawsuit or criminal trial, if you want to get down to it. One is getting paid by one side, and one is getting paid by the other side.

If I got paid by whether or not a magazine ran my opinions, then my opinions would be a hell of a lot more interesting.

On DU, folks like Starfish, Velveteen Ocelot, and others are sharing their objective opinion, which can certainly be wrong, but it is also certainly not designed to be dramatic or media friendly.

The obvious fact here is that the House has not subpoenaed Bolton, much less set about on a plan to arrest him. I'm inclined to believe they have reasons for that.

[Bev54]

22. thank you

Also who is going to arrest them? Bill Barr is not going to allow that. They need to impeach Barr, Pompeo and a few others.

[tavernier]

50. Where is Barney Fife when we need him most??

[uponit7771]

29. Then have them go through the process, I don't think "we'll have to wait" is a good enough reason

... not to take action here.

Also, Republicans wouldn't give a damn about waiting ... they'd do such and put a dem in jail quick fast for being female or some other stupid crap.

These people aren't interested in democracy any longer

[StarfishSaver]

34. You mean the same process y'all are saying takes too long so you need to try inherent contempt?

You know that makes no sense, right?

[uponit7771]

39. I'm not saying that, 6 months to a year is not long in this environment, start now so these

... people can go to jail.

Right now the kGOP is repeating Russian talking points aimed at weakening the US and no doubt there's no such thing as op sec any longer.

Its past time to cut the arm off Thanos before he snaps his fingers and cheats a win in another election.

[StarfishSaver]

43. Inherent contempt won't result In anyone going to jail in 6 months

It isn't a punishment - its only purpose is coercive, i.e., to make someone appear. Once the proceeding at which they're commanded to appear concludes, it has no further need.

[LiberalLovinLug]

38. I understand all that, but wouldn't it still be useful to let witnesses know they will pay?

ie.. charge them with refusal, but do not consider them as necessary witnesses for the moment. Can't they still wrap up without using all the witnesses they had requested? Why not let all these staffers know that eventually, even if years later, they will probably be charged with that and eventually have to pay for it. As it is now, there are no consequences. Even if just from a legal point of view, why would any of them even consider it if it ended up revealing that they too were involved? Especially if they can simply say no.

[StarfishSaver]

42. Threatening to use inherent contempt isn't "letting witnesses know they will pay"

These witnesses are already on notice - they are in court and facing likely court orders to appear and failure to do so will probably result in far more serious consequences than inherent contempt ever would - especially since the most drastic result of inherent contempt would be a court order to appear or else face contempt of court charges, which is already likely to happen even without creating the circus an attempted arrest under inherent contempt would precipitate

[LiberalLovinLug]

44. "probably result in far more serious consequences"

You see, this is what I'd like to have clarified and detailed, especially to those refusees. Are you positive that these witnesses are being charged, if they fail to show? Because all I've heard is a collective "meh" from Democrats. ie. they come off like they decided to just cut their losses and move on. I have not heard any talk of following through with charging them. That's what I want to hear. Even if we don't get to hear them now, they have to know that they will pay for their unAmerican activity some day.

[StarfishSaver]

46. Inherent contempt isn't a criminal "charge." The House has no power to charge anyone with a crime

It's simply a method of compelling someone to appear before the House. Theoretically, its purpose is to go get them and bring them to the House. It's not a method for charging them with a crime and proaecuting them therefor.

[LiberalLovinLug]

48. My mistake

I was under the impression that it was against the law to wilfully ignore a summons to testify before the House. Whatever its called. Whether the House charges them or they are able to recommend to the courts they be charged. Either way

It seems pointless then if the House has zero authority to not only enforce subpoenas, but even to make a refusee pay any price whatsoever for their inherent contempt, even if much later. If only Nixon had known.

[StarfishSaver]

53. It can be a criminal offense to ignore a subpoena, but the House can't charge the crime

It has to refer it to DOJ to charge and prosecute the Contempt of Congress violation. It can also go to court to ask the court to enforce the subpoena as a civil matter..

In the former instance, the US Attorney either indicts or directly charges the defendant with the crime od Contempt of Congress and prosecutes them in a trial in federal court. If they're convicted, the judge can fine them or sentence them to jail.

In the latter instance, the House asks the court to issue an order requiring the defendant to comply with the subpoena. This is a civil, not criminal, proceeding. If such an order issues and the defendant defies it, the court can order them arrested and jailed for civil Contempt of Court (not Contempt of Congress) and hold them until either they comply or the proceeding ends

[CaliforniaPeggy]

4. Greatest Page for this important post! n/t

[RKP5637]

5. Democrats really need to kick ass, even more!!! n/t

[StarfishSaver]

9. These "Use inherent contempt" demands crop up every couple of weeks

There are reasons the House isn't wasting its time with that tactic, including that it won't work.

[Maraya1969]

13. When someone makes the blanket statement, "It won't work" I get a pain in my stomach

Do you really how much of nothing would have ever been accomplished if everyone followed these words?

Maybe things would be difficult; bring another set of problems. That is true of all things. That does not mean you should just shough things off with a "It won't work"

[stopdiggin]

15. It won't work

injunctions, hearings, filings, pleadings, into the foreseeable future. But go ahead and tell us how you're "just gonna' slap the cuffs on em'."

[wiley]

18. There are several jail cells under Congress.

They haven’t been used since at lest the early 1900s I believe. You are correct that this is a tactic that would be spectacularly ineffective. We already have elected leaders and far right relions zealots claiming if The Kurd killer in chief is impeached a holy war will ensue. Others are threatening civil war. Arresting one of then would be the start of one or both of those things. Frustrating how lengthy the process is but they can be compelled in less confrontational ways. The use of FOIA requests has been rather effective recently.

[bottomofthehill]

23. There are not several jail cells under Congress

The House does not have access to jail cells that they control.

[backscatter712]

28. There's not actually a jail cell in the Capitol, BUT...

The Capitol Police have some holding cells in their HQ nearby - those should do. And the Capitol Police answers directly to Congress, not the Executive Branch.

If they're trying to use kid gloves, they can also rent a hotel room and keep the inherently contemptible there under house arrest.

It hasn't been done since the 1920's, but yes, the Congress can indeed order the Capitol Police to go arrest someone for defying a Congressional Subpoena.

[bottomofthehill]

31. The USCP is run by a board consisting of 3 people

The Acting Architect of the Capitol ( he does not want any part of this mess as the AOC is appointed by the President), The House Sergeant at Arms who is elected by the Democratic House and The Senate Sergeant at Arms who is elected by the Republican Senate. People are only briefly held there for transfer to a “real jail”. Most people arrested on Capitol Hill are citation released unless they are seen as a threat to society.

[StarfishSaver]

67. Congress can order the Capitol Police to arrest someone, but whether (and where) Capitol Police can

actually arrest them is an open question.

And even if they could they probably would never get the chance since the defendant would get an injunction preventing the arrest and start a long court proceeding fighting it. And if, in the highly unlikely case the Capitol Police actually arrested someone, they'd be released immediately on a writ of habeas corpus and launch a lengthy court process. And the proceeding they were subpoenaed to testify before would likely end long before the court case was resolved, meaning the case would go away because it became moot.

[wiley]

74. Inherent Contempt

Allows Congress to detain and imprison people to make them comply with a congressional demand based on their own constitutional authority. THere are no jail cells per se under the Capital but in the past people were take to a Capitol Police holding cell. Otherwise, they were sometimes actually held in rooms in the Congress.

[Hortensis]

10. The real battle is for the support of the people, from whom

all power comes. At least until it no longer does, which the conservative extremists who've taken over the Republican Party are working on. It may turn out that America already had its last genuine democratic election in 2012 or 2014. We don't know yet.

If arresting these people now were to lead to reelection of Trump and both houses of congress once again controlled by other corrupt Republicans, that would for sure be war lost. And of course, we have to worry about the Republicans getting back many of the state government houses they lost in the midterms. 2020 is a census and reapportionment election.

Very big-league politics. Before the midterms, the Republicans were coming up fast on the 2/3 of the state governments they'd need to call a constitutional convention and rewrite the constitution so that America was very different from anything ever intended. They needed 34 and were up to 32 or so. And what they've lost they can regain.

[wiley]

19. Yes

We must relentlessly act locally and have everything go up, not start at the top.

[Hortensis]

71. Good point. And we are assaulting from all positions

of strength, from all levels and across the nation.

[sarge43]

20. Give the order, Madam Speaker

This can not stand.

[StarfishSaver]

24. And then what?

Please walk us through exactly what will happen after Madam Speaker "gives the order," including how and when the order will result in Bolton appearing before the committee and answering all of the Democratic Members' questions.

[sarge43]

30. I don't know the details; however

I think the same thing that should happen to anyone who ignores a legal subpoena.

[StarfishSaver]

35. Why don't you take some time to learn the "details" of the action you demand the Speaker take

before trying to instruct her on how to handle her business?

[sarge43]

45. Why don't stop acting like you're her gate guard. n/t

[tritsofme]

52. How awful to suggest someone consider...reality!

[pertello]

25. I think it's called a bench warrant.

Legal in some states to go round up anyone who fails to appear when summoned to court. Yup. See?

https://washingtondccriminallawyer.net/dc-failure-to-appear-lawyer/bench-warrants/

[StarfishSaver]

27. Bench warrants are issued by judges, not Congress. (hence the term "bench")

and are issued in response to failure to appear in court, not for failure to comply with a Congressional subpoena.

[stillcool]

59. I took a little hiatus from politics...

haven't been around much. I see you are still leaving seeds of knowledge everywhere you go...like Johnny Appleseed. Probably seems unappreciated, but I love it. Always learn something.

[StarfishSaver]

64. Aww - that's very kind of you and I really appreciate it!

[StarfishSaver]

73. You beg to differ about what?

I'm not sure what your response - cut and pasted verbatim from Wikipedia without attribution - has to do with whether Congress can issue a bench warrant - or anything else I've said in this thread.

[backscatter712]

75. In the judicial branch, rounding up someone who defies a subpoena is pretty routine.

Unless I'm mistaken, almost every jurisdiction in the U.S. has the authority to arrest and hold a person for defying a subpoena.

And Congress does too - SCOTUS has ruled that Congress has the power to compel witnesses and testimony, and they can directly have the Sergeant at Arms go arrest a person and imprison him for failing to comply with a subpoena.

The power hasn't been used in almost a century, but it exists, if Congress chooses to use it.

[StarfishSaver]

76. A Court's ability to arrest someone for contempt of court and Congress' ability to arrest someone

for inherent contempt are very different for several reasons.

Among other things, the US Marshals have nationwide jurisdiction. The Sergeant-at-Arms/Capitol Police jurisdiction is likely limited to the Capitol grounds.

The case you're referring to did not uphold the power of the Sergeant-at-Arms to arrest anyone off of Capitol grounds. In that case, geographical jurisdiction wasn't an issue.

There are reasons that inherent contempt arrests aren't routine.

[SayItLoud]

26. There are a lot of other people who need to be cuffed. nt

[debsy]

37. ARREST ALL WHO ARE IGNORING SUBPOENAS FROM THE HOUSE COMMITTEES!

These horrible people (dare I say, "criminals" ) should not be allowed to continue flouting the LAW!

[AllaN01Bear]

41. i was wondering where the seargent at arms was and this is great news .

[thesquanderer]

47. I don't remember Bolton refusing to testify, only that he said he'd have to be subpoenaed.

AFAIK, they have not subpoenaed him. Did I miss something?

[Maraya1969]

49. Actually I don't think they have yet and I don't know why.

[BuffaloJackalope]

51. The Capitol was built with holding cells for that very purpose.

https://www.aoc.gov/facts/us-capitol-prisons

[beachbumbob]

54. Bolton is waiting on judges ruling, which is Monday.

[Mike Nelson]

56. I doubt AG Barr would permit this...

... even if it were possible, there would be an immediate appeal. These are not poor guys with long hair or dark skin... I think a better idea would be to stop any government checks and start fining them $5,000 a week until they appear. If they can't afford the fine, jail is free!

[StarfishSaver]

58. How would the House stop their paychecks and collect fines?

[Mike Nelson]

61. I thought the House...

... controlled "the purse strings"? Then, they could stop pay and/or pension checks - subtract fines from them.

[StarfishSaver]

63. They don't. That's a myth

Last edited Sat Nov 23, 2019, 09:58 PM - Edit history (1)

The House introduces spending bills, but all spending must be approved by the House and the Senate and signed into law by the president. The House doesn't have independent authority to rescind anyone's paycheck unilaterally.

If they wanted to impose a fine and try to get it to come out of someone's paycheck, they'd have to get a court order. So right back in court, with appeals, etc. ... where we are now.

[dware]

65. I love reading your very knowledgeable posts.

It's amazing to me how many here write these posts without researching the subject.

Thank you for all you do to try to educate people here on how the process really works.

[StarfishSaver]

66. Thanks. I appreciate that!

I'm glad you find my posts helpful!

[burrowowl]

69. K&R