House Oversight Committee Holds Barr & Ross in Contempt Over Census Citizenship Question

The House Oversight Committee voted 24-15 along mostly party-lines on Wednesday to hold Attorney General William Barr and Commerce Secretary Wilbur Ross in contempt for failing to provide documents related to the Trump administration’s decision to add a citizenship question to the 2020 Census. All of the committee’s Democrats were joined by Rep. Justin Amash (R-MI) in voting to hold Barr & Ross in contempt.

The U.S. Supreme Court is expected to rule on the constitutionality of the Trump administration’s citizenship question later this month, but Democrats believe the documents are necessary to determine why the question was added to the Census. The Trump administration asserted executive privilege over the documents earlier Wednesday, after a Dept. of Justice (DOJ) request that the committee postpone the “unnecessary and premature contempt vote” to allow the document production negotiations to continue was ignored by the committee.

What is contempt of Congress?

Contempt is used by the House and Senate to respond to actions viewed as obstructing the legislative and oversight process by forcing compliance, punishing the subject of contempt (aka the contemnor), or removing the obstruction. Congressional contempt power can be exercised in three ways according to the Congressional Research Service:

• Inherent Contempt: This method draws on Congress’s constitutional authority to try and detain the contemnor until the individual complies with congressional demands. It is also functionally dormant, as it was last used in 1935.
• Criminal Contempt: This allows Congress to punish subpoena non-compliance with a by certifying a contempt citation for the criminal prosecution of the contemnor with the DOJ, rather than serving as a mechanism for obtaining the subpoenaed material.
• Civil Enforcement: Congress has the power to seek a civil judgment in federal court declaring that the contemnor is legally obligated to comply with the congressional subpoena.

There are several obstacles to congressional subpoena enforcement against executive branch officials through the use of criminal contempt or civil enforcement. In terms of criminal contempt, based on past practice the DOJ doesn’t prosecute contempt if executive privilege is invoked. That was the case for several contempt citations involving executive branch officials approved by the House and sent to the DOJ in recent decades:

• EPA Administrator Anne Gorsuch Burford (1982): Gorsuch was subpoenaed for documents related to the functioning of the Superfund program, which cleans and repairs environmental areas contaminated by toxic waste, during the Reagan administration.
• Former WH Counsel Harriet Miers & WH Chief of Staff Joshua Bolten (2008): Miers was subpoenaed for documents and testimony related to the George W. Bush White House’s involvement in requesting the resignations of U.S. attorneys, while Bolten was subpoenaed for similar records.
• Attorney General Eric Holder (2012): Holder was subpoenaed for records related to the Obama administration’s Operation Fast & Furious, under which the ATF allowed semi-automatic “assault” rifles to be sold to straw-buyers who transferred them to drug cartels. The weapons were used in numerous murders near the U.S.-Mexico border, including the 2010 killing of U.S. Border Patrol Agent Brian Terry.

Additionally, while it’s possible to enforce a congressional subpoena through civil action it can take significant time to obtain a final, enforceable ruling due to the appeals process.

What’s next for the contempt resolution?

The resolution could be considered on the House floor in the near future if the Trump administration continues to assert executive privilege over the documents and Democratic leaders choose to bring it to the floor.

A resolution to hold Barr in contempt for failing to provide Congress with the unredacted Mueller report that was advanced by the Judiciary Committee was considered for a possible floor vote this week. However, Democratic leadership took it off the agenda after the DOJ agreed to provide lawmakers with greater access to the report.

— Eric Revell

(Photo Credit: iStock.com / Bill Chizek)