House of Representatives Committee on Rules
Rules Ranking Republican Tom Cole (OK-04) voted against H. Res. 430, Civil Contempt and Subpoena Enforcement Resolution:, in the U.S. House of Representatives.
Introduced by Rules Chairman Jim McGovern last week, the resolution bypasses past precedent of voting first to hold an individual in contempt of Congress before suing for requested information. Specifically, H. Res. 430 authorizes the Judiciary Committee to initiate and intervene in judicial proceedings to force Attorney General William Barr and former White House Counsel Don McGahn to comply with certain subpoenas. The resolution also authorizes committee chairs to sue to enforce future subpoenas after only a vote of the partisan Bipartisan Legal Advisory Group, rather than a vote of the entire House.
During debate on the rule for H. Res. 430 earlier today, Cole made the following remarks in opposition. Video is available below.
H. Res. 430 comes from a dispute over documents relating to the Special Counsel’s investigation into Russian interference in the 2016 presidential election. The dispute also stems from the inherent oversight authority of Congress and our ability to perform oversight functions over the executive branch. And it falls into the fuzzy boundaries between the branches of government – when and how we may compel the executive branch to turn over documents to the legislative branch.
I lay out that framework because there is an important point here that is being lost. The Democratic majority clearly wants to make this dispute entirely about this president, this attorney general, this White House counsel, this investigation, and this subpoena for documents. The Democrats want to focus attention there because they think it helps them politically to do so. But this dispute really shouldn’t be about just that. It should, rather, be about the difficult and thorny questions that emerge in a system like ours, with three branches of government and with checks and balances.
In a sense, what the majority is seeking to do here today is completely unprecedented both in its intent and in its execution
Consider the only other times the House has filed a lawsuit to seek to enforce a subpoena for documents. It’s happened twice before, once in 2007 to seek documents from former White House Counsel Harriet Miers, and again in 2012 to seek documents from then Attorney General Eric Holder as a result of a congressional investigation into the Fast and Furious scandal. In both of these cases, the House had already voted to hold both Miers and Holder in contempt of Congress before filing suit, which has not yet happened in this case. In the Miers case, 138 days elapsed from the first document request to the Judiciary Committee voting to hold her in contempt. In the Holder case, it was significantly longer. 464 days elapsed from the first document request to the committee voting to hold him in contempt. That’s well over a year!
But here, the majority is forcing us to rush forward at a much faster pace. Just 44 days elapsed from the date of the first document request to the Attorney General until the Judiciary Committee voted to hold him in contempt. 44 days! James Holzhauer was the champion on Jeopardy! for a longer period.
I don’t understand the majority’s haste here. Without exhausting all other options – continuing negotiation, discussion, compromise, and turning to a vote on contempt as a last resort – the majority is instead pushing us forward into litigation with the executive branch. And in doing so, they may well be placing the House into a position that causes significant long-term damage to the institution.
When this matter goes before the courts, it will do so as a case of first impression and under an untested legal theory. In both the Miers and Holder cases, the House previously voted to hold those two individuals in contempt of Congress. Nothing like that has been done here and using untested tactics like this could set a dangerous precedent that harms all of us – Republicans and Democrats – in the long run.
Finally, I would also note that it’s not clear what this resolution will ultimately accomplish. Since the House has not yet exercised all the tools in its toolkit, and since it is not clear that negotiations with the Justice Department and the White House over the documents at issue is at an end, this whole thing may be nothing more than sound and fury. Indeed, given how quickly the majority is rushing into things, it seems unlikely that the only course of action left to the House is to file a lawsuit.
I strongly urge the majority to continue working with the Justice Department and the White House to find a resolution to these issues without resorting to a knee-jerk lawsuit that may ultimately damage the House as an institution.