Nadler squeezed with calls for ‘inherent contempt’
House Judiciary Committee Chairman Jerry Nadler is in a bind.
A growing number of Democratic committee members are pushing Nadler to take more aggressive steps to force President Donald Trump and top administration officials to comply with a host of congressional subpoenas. Some lawmakers even want Congress to dust off its little-used authority to fine or even jail witnesses, something that the House hasn't done in more than 80 years and is ill prepared to execute.
But Speaker Nancy Pelosi and her leadership team worry that such moves, while pleasing to a party base that loathes the president, would backfire and boost Trump politically.
Caught in the middle is Nadler, a 71-year-old Democrat who has long been a thorn in Trump's side. Anything he does will displease some key constituency — either at home in his New York City district, in his committee room in the Rayburn House Office Building, or in the Capitol’s leadership suites.
The new push inside the Judiciary Committee to use its “inherent contempt” power against Trump administration officials underscores the larger challenge facing House Democrats in responding to the president's decision blanket stonewalling.
While Pelosi and her lieutenants have all but ruled out impeaching Trump — despite incessant calls to do so from party activists and some lawmakers — the White House keeps upping the stakes by refusing to the comply with House probes into Trump’s finances and personal conduct. That leaves Democrats with few tools to respond effectively short of taking Trump to court, a risky and time-consuming process that could take months or years to resolve.
Yet doing nothing also isn’t an option for Democrats, who don’t want to look feckless in the face of Trump’s defiance.
"[Trump] certainly is the best argument for impeachment there is. This is the most impeachable president in the history of the United States of America. But that still leaves us a whole bunch of questions about what to do and when to do it," said Rep. Jamie Raskin, a member of the Judiciary and Oversight panels.
The Maryland Democrat said even as Democrats may go to the courts first, lawmakers are deeply interested in the prospect of inherent contempt.
“People want to know what the precedents are, and people want to know the full extent of our power,” Raskin said. “We know how to arrest people around here. And if we need to arrest someone, the [House] sergeant at arms will know how to do it. I’m not afraid of that. If they can arrest my constituents, we can arrest someone else who's disobeying the law.”
“You can't jump from nothing to everything. We have to go through a legal process,” said Rep. Pramila Jayapal (D-Wash.), another hard-line Trump critic “Once that [contempt] vote happens on the floor, then we also have inherent authority that is at our disposal. We have a number of steps we're looking at that we can take. People feel like we’re progressing at the appropriate pace.”
Nadler has largely trained his energy on criticizing the Trump administration and has floated tougher punishment for resistance to the committee’s oversight efforts.
“In the coming days, I expect that Congress will have no choice but to confront the behavior of this lawless administration,” Nadler said last week. “The committee will also take a hard look at the officials who are enabling this cover up.”
This past Wednesday, the House Judiciary Committee voted to hold Attorney General William Barr in contempt of Congress for failing to turn over an unredacted copy of special counsel Robert Mueller's report. No House floor vote has been scheduled yet, but even Democrats know the move is more symbolic than substantive. A civil contempt resolution is likely to be approved in the coming weeks, meaning the House can sue Barr and the Justice Department. But that isn't enough for many Democrats. They want to go much further.
Some lawmakers tell POLITICO that the growing push for a more aggressive posture is being driven by the committee's younger members, many of whom are new to the skirmishes and polarizing fights that have long divided the Judiciary panel.
The Judiciary Committee has long been one of the most partisan in Congress because leadership tends to steer vulnerable — and typically more moderate — members away from the committee. That leaves the panel stacked with members less willing to compromise or shy away from a battle with the president of either party.
"Nothing is off the table. It can't be off the table. We have to look at all of the options to do our job and protect the Constitution and to make sure the government is functioning the way it should be," said Rep. Mary Gay Scanlon (D-Pa.).
Scanlon acknowledges that it would be extraordinary for Congress to detain or fine a witness who refuses to testify, but says the conflict is being driven by the White House's refusal to comply with subpoenas.
"There's a reason why we don't do it, but there's a reason why we haven't had to even talk about it, " Scanlon added. "Because we've had administrations that have negotiated in good faith and tried to work for the good of the American people rather than the good of a particular incumbent."
Scanlon, like several other Judiciary Democrats, noted there "have been conversations" inside the panel about whether to initiate impeachment proceedings, a move that would strengthen the committee's legal position in dealing with the White House.
The committee also includes presidential candidate Eric Swalwell (D-Calif.), who has called for the impeachment of Barr but stopped short of calling for Trump's immediate impeachment.
"We’re restraining ourselves from doing 'Donald Trump Justice.' 'Donald Trump justice' is you just reach a conclusion and then let the facts catch up. We’re trying to show a contrast to that which is orderly process, which is frustrating in that it doesn’t happen as fast as you want," Swalwell said in a recent interview. "We’ve got one shot to get it right, you've got one record to create for the courts. You want to show you gave them every chance to comply. It’s frustrating, but that’s law and order."
Yet there are also Democrats who might not favor the bellicose rhetoric coming from the committee. Rep. Lucy McBath (D-Ga.) hails from a district that typically leans Republican and joined the panel in part to lead its efforts on gun control. Reps. Lou Correa (D-Pa.), Zoe Lofgren (D-Calif.) and Sylvia Garcia (D-Texas), a former Houston municipal judge, have also been described by lawmakers as potential moderating forces on the panel..
"It's very simple for myself as a member of Judiciary — what I am looking at is oversight and full disclosure, access to all the documentation on the Mueller report, the Mueller report unredacted as well as the underlying information. That's the first step," Correa said. "I know the administration has signaled it's going to fight us. That's probably what we expected. We hope there's a change in tone, but at this point, we're going to have to go the courts and show the courts we're being reasonable as members of Congress."
Correa wouldn't commit to asserting inherent contempt authority, much less impeachment. "Let's not get ahead of the facts. We're not there yet," Correa said.
Lofgren — who briefly challenged Nadler for the top Democratic spot on the committee after former Rep. John Conyers (D-Mich.) resigned 18 months ago — rejected the idea that impeachment proceedings were necessary. And she praised Nadler's handling of the dispute with Trump and the Justice Department over the Mueller report.
"I do think we're proceeding in an orderly way — or trying to — to exercise our oversight responsibilities. Then we'll see where we are," Lofgren said. "I think we're committed to doing our job and then we'll see where we are."
The panel also includes two members of leadership: Rep. Hakeem Jeffries (D-N.Y.), who is viewed as loath to go faster than Pelosi prefers, and Rep. David Cicilline (D-R.I.), who says impeachment is more palatable each day but that the committee isn't ready to go there yet.
Article originally published on POLITICO Magazine