The Trump administration “will not participate” in Congress’ ongoing impeachment inquiry, according to a letter filed by Presidential Counsel Pat Cipollone. The administration’s chief objections seem to be, first, that they view the proceedings as partisan (intended to “undo” the 2016 election), and second, that the House did not formally vote to begin an impeachment process.

Of course, there is no rule that requires the House to begin impeachment inquiries with a formal vote. In fact, impeachment has very little structure to it, which is part of the problem. Clause 4 and 5 of Article 2 of the Constitution simply says this:

Clause 4: The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.¹

Clause 5: The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.

In the meantime, Trumpelthinskin and his administration do not have the authority to simply defy Congress. The House of Representatives could, of course, take all these questions to federal court. That would, however, take a long time to resolve. ²

But the Congress is not powerless. There is something known as Contempt of Congress, and it may be about time that the House actually invoke it’s powers.

As with so many things in the Constitution, Contempt of Congress is not clearly defined. What we do know is:

1. Contempt of Congress was historically considered an implied power of the legislature;
2. There are cases decided by the Supreme Court — see e.g. Barenblatt v. United States, 360 U.S. 109 (1959) and Wilkinson v. United States, 365 U.S. 399 (1961) — that have made it clear that Congress does have the right to compel witnesses and documents, and that refusing to answer can lead to a conviction.
3. The House does have the ability to ask the Sergeant at Arms for the House to go out and arrest witnesses who refuse to cooperate.

The last time that the Congress directly arrested someone was 1935. Since then it has referred contempt issues to the United States Department of Justice, which is part of the Executive Branch. However, the current Office of Legal Counsel of the DOJ has opined that the President of the United States is protected from Contempt of Congress by executive privilege. So that’s not going to work.

The Congress could also go to the U.S. Attorney for the District of Columbia to prosecute a contempt citation, but that also would take time.

If Trump really wants to play hardball, why not go the Sergeant at Arms, arrest those who are refusing to cooperate, and let them cool their heels in jail while they consider whether or not to defy the President.³

1. What “high crimes and misdemeanors” are is a whole separate question, and beyond the scope of today’s article. We’ll have to tackle that on a future date.
2. Trumpelthinskin is clearly betting that he could run out the clock to the 2020 election before most of these cases are decided and the appeals are exhausted. Exhausted is what we, the poor voters will be, before this is all over and the circus has finally left town.
3. One issue that may come up is where these people would be detained once taken into custody by the Sergeant at Arms.