Flush with victory at being elected as Speaker of the House of Representatives after failing 14 times, Kevin McCarthy immediately signaled his gratitude to MAGA extremists. He announced Republicans’ intent to investigate everything from active criminal investigations being conducted by the Justice Department to “the withdrawal of Afghanistan [sic], to the origins of COVID, and to the weaponization of the F.B.I.”
A resolution to create a special House Judiciary Committee “select subcommittee” to get this laundry list of investigations done will be voted on later this week. The intention to make this committee the Republican answer to the Jan. 6 Committee was made clear by Rep. Chip Roy’s disclosure that Speaker McCarthy has promised the select subcommittee at least as much funding and staffing as was given to the Jan. 6 committee.
Do Democrats have anything to fear from this promised onslaught of investigations? Not really.
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The Trump era and the work of the Jan. 6 Committee itself provide a simple blueprint for Democrats in defending against these promised investigations, which may be summarized as: Comply, delay, and defy.
First, Democrats should always comply with subpoenas by responding and showing up when required to do so. “Responding” may take the form of letters explaining why the area of inquiry is inappropriate—for example, inquiries into active criminal investigations have long been resisted by DOJ.
If this gentle persuasion is not successful, the next step would be to offer voluntary appearances or meetings at which the same points could be made. After that, litigation could commence over the legality of the specific inquiry and whether it comported with a legitimate legislative purpose or violated the Separation of Powers doctrine.
It took the House Ways and Means six years to get Trump’s tax returns—by which time he was out office. If Biden’s DOJ shows a little aggression, it can easily seek to match that record when it comes to resisting, for example, information about ongoing criminal cases.
Second, Democrats should have no qualms about simply defying subpoenas, should that become necessary, because the current process for enforcing subpoenas is broken.
As a reminder, Congress has three ways to enforce subpoenas through the contempt process: (1) Inherent Contempt, by which they arrest the defiant person through their own Sergeant-at-Arms and prosecute themselves; (2) Civil Contempt, where they file a lawsuit to get a judge to order compliance; and, (3) Criminal Contempt, where they ask DOJ to criminally prosecute. All three of these are essentially toothless.
Inherent Contempt has not been used since 1935, when aviation industry executive William MacCracken Jr. showed up at the home of the Senate Sergeant-at-Arms and challenged him to “lock me up.” MacCracken—after being tried and convicted by the Senate—lost his appeal to the United States Supreme Court and served a rather non-intimidating sentence of 10 days in the D.C. jail, where he was given privileges that included getting to sleep in a dormitory rather than a cell, and an improved dinner menu that included “cold shoulder, cheese, fried pineapple, creamed potatoes, fruit Jell-O, and coffee.” Not exactly an outcome that will keep any Biden administration officials awake at night worrying.
Civil Contempt—like all civil proceedings—can take a long time, months to years. Complete with appeals to federal courts and SCOTUS, by the time such proceedings run their course the issue being investigated may be long moot.
Criminal Contempt is perhaps the least fearsome tool for the House Republicans because it would require Attorney General Merrick Garland’s DOJ to approve a criminal prosecution for contempt—something it has a slow track record of doing. Even for Steve Bannon—a non-government employee who blatantly defied a congressional subpoena, DOJ still took a month before indicting him—and he was not sentenced until more than a year after the subpoena was issued. An actual government employee (such as a member of the Biden administration) would have far more substantive legal arguments that would likely slow any DOJ decision to a glacial pace.
While Democrats have little to fear legally from such investigation, they also have little to fear politically. Blatantly partisan congressional investigations—like Benghazi, which took two years and cost some $7 million while producing a “dud” for a report—will do little besides play to a MAGA base.
Even criminal referrals are unlikely to find a receptive audience at a Garland DOJ that is stretched to the breaking point with hundreds of Jan. 6 prosecutions, as well as Special Counsel Jack Smith’s investigations centered on Trump’s actions on Jan 6 and the discovery of hundreds of classified documents at Mar-a-Lago.
Indeed, Democratic strategists might welcome two years of fruitless congressional investigations that waste time and taxpayer money, while producing zero legislative progress.
By contrast, the Biden administration will be able to point to their legislative achievements before the Republicans took control of the House as evidence of how real progress was blocked by the midterm election results.
While Democrats and Biden officials have little to fear and little to lose from Speaker McCarthy’s planned investigations, the American people do have much to lose. A 118th Congress that spends the majority of its time doing purposeless investigations means that the real work for Americans will simply be put aside in a blaze of partisan wars. That is something to worry about.
