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Wednesday, December 12, 2018

VIDEO: Time to study up

What is a subpoena and should Trump fear it?

To watch this video on YouTube:

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.

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.