What is a subpoena and should Trump fear it?
By Robert Reich
To watch this video on
YouTube: https://www.youtube.com/watch?v=qfhZeQwdTM0
You’re probably
hearing a lot about subpoenas. Or you will very soon, once Democrats take
control of the House.
A subpoena is a legal
command from a court or from one or both houses of Congress to do something
– like testify or present information. The term
“subpoena” literally means “under penalty.” Someone who receives a subpoena but doesn’t comply with it may be
subject to civil or criminal penalties.
Here’s how it works.
Step one: Let’s say the Intelligence Committee of the House of Representatives issues a subpoena to the President for information about alleged conversations with Russian officials seeking their help in the 2016 election. Or say the House Ways and Means Committee subpoenas the President’s tax returns–which, in fact, a law enacted in 1924 after the Teapot Dome scandal of the Harding Administration specifically authorizes that committee to do.
Step four: If a majority of the full House agrees, the
Speaker of the House would then refer the contempt citation to a United States
Attorney, or to a special prosecutor, for prosecution in federal court. The potential penalty is up to $100,000 and imprisonment for up to
a year.
Step five: The defendant in such a lawsuit–in this
case, Trump–would probably argue that contempt of Congress doesn’t apply to a
President because of “executive privilege”–that is, the supposed Constitutional power of a President and other members of
the executive branch of the government to withhold information from the
legislative branch, in the public’s interest.
Step six: Regardless of how the lower court decides on
the claim of “executive privilege,” the case could end up at the Supreme Court, where, unless they
could find a way to avoid it, the nine Justices would have to balance
Congress’s need for information with the executive branch’s claims of confidentially.
In the 1974 case of United States vs. Nixon, when the
Watergate special prosecutor sought Richard Nixon’s audiotapes of conversations
in the White House and Nixon claimed executive privilege, the Supreme Court
sided with the special prosecutor, because Nixon had asserted only a generalized need for confidentiality
rather than a specific public interest in keeping particular conversations
confidential.
The Clinton administration invoked executive privilege 14 times. The
George W. Bush administration, 6 times. The Obama administration,
twice. All these matters were resolved before parties appealed them to the
Supreme Court.
Alternative route: I should mention an alternative route for the House to enforce a subpoena–although
it hasn’t been used in over 80 years. Under its inherent authority to
investigate, the House could try someone who refuses to comply with a subpoena,
for contempt, before the entire House chamber.
If found guilty by a
majority of the House, the person who has been cited for contempt could then be
arrested by the Sergeant-at-Arms for the House, brought to the floor of the
House, held to answer charges by the presiding officer, and then held in the
Capitol until he or she provided the testimony or documents sought, or until
the end of the session of Congress.
Somehow I doubt this
would happen to Trump. The last time this occurred was in 1934, and it was to a much
lower-level official. But still, even with the formidable power of
the subpoena, these days anything is possible.
Robert B. Reich is Chancellor's Professor of
Public Policy at the University of California at Berkeley and Senior Fellow at
the Blum Center for Developing Economies. He served as Secretary of Labor in
the Clinton administration, for which Time Magazine named him one of the ten
most effective cabinet secretaries of the twentieth century. He has written
fifteen books, including the best sellers "Aftershock", "The
Work of Nations," and "Beyond Outrage," and, his most recent,
"The Common Good," which is available in bookstores now. He is also a
founding editor of the American Prospect magazine, chairman of Common Cause, a
member of the American Academy of Arts and Sciences, and co-creator of the
award-winning documentary, "Inequality For All." He's co-creator of
the Netflix original documentary "Saving Capitalism," which is
streaming now.
