Voters must dive into murky legal waters around 'contempt of Congress' fracas

It’s easy to understand why people find government and the law hard to understand. The fact is: Government and the law often are a challenge to understand or explain.

Take the news of this past week, when the House voted to hold Attorney General Merrick Garland in contempt of Congress. Garland is only the third attorney general to be held in criminal contempt of Congress since the beginning of the American Republic in the 1780s.

That seems like a pretty big deal. On the other hand, much of the news coverage over the past few days has dismissed any thought of Garland being sent to jail or even prosecuted. So the net effect of his contempt citation might well be zero.

The Justice Department has already informed House Speaker Mike Johnson it will not prosecute Garland. Johnson has already responded that the House would go to court to seek enforcement of the citation without the cooperation of Justice.

Beyond that, the House could spend much of the time it has remaining this year on an impeachment proceeding. But the only official impeached in the current Congress, Homeland Security Secretary Alejandro Mayorkas, had his case summarily dismissed in the Senate.

So that suggests “contempt of Congress” is not such a big deal.

Except that earlier in this same month, we saw former President Donald Trump’s ally Steve Bannon exhaust his appeals and be ordered to prison to serve four months beginning no later than July 1. Meanwhile, another former Trump adviser, trade economist Peter Navarro, is in a federal facility in Miami serving a similar sentence right now.

Both men were given far shorter sentences than they might have faced. Still, they are serving prison sentences. And both of their long-running court cases began with citations for contempt of Congress.

So at first blush, average citizens might well be confused. Or they might well be susceptible to claims that the former president and all his minions are somehow victims of unprecedented political persecution. Those claims often originate with Trump himself, who sees it all as the “weaponizing” of the government and the law against him.

To sort all this out takes time and information. It may take more of both than most of us have available. That, in turn, makes it easier to sell us the version of the story preferred by the politician or media we prefer to listen to.

Who is in contempt of whom?

Contempt proceedings are simply the last phase in enforcing Congress’ power to seek and compel evidence when conducting an investigation. Conflicts may develop when Congress is exercising its powers of oversight to probe other parts of government.

Where Congress wants to see something, an agency of the executive branch may object or be directed to object by the White House. That poses a series of questions: Is a certain witness protected or a certain document privileged under constitutional separation of powers?

Usually, negotiations resolve these questions. But difficulties may arise when the target of a subpoena defies not only the subpoena but the legitimacy of the authority issuing that subpoena. This only gets worse when the target of the subpoena refuses to negotiate or seek any accommodation.

Such was the case with Bannon and Navarro. Neither was willing to recognize the authority of the House Select Committee to Investigate the January 6th Attack on the Capitol. They argued it did not have any authority because congressional leaders on the Republican side had not given it their blessing.

They were prosecuted beginning in 2021, tried in federal courts and found guilty by juries and sentenced by their trial judges. A series of appeals over a period of years delayed their dates of incarceration. Bannon is still pursuing a review of the order that revoked his bail and moved up his date of incarceration.

Garland has been cited for contempt because he would not turn over to congressional committees the tapes they sought from Biden’s interview with a special prosecutor named Robert Hur.

Garland had named Hur to look into Biden’s retention of classified documents from his time as vice president. Hur said it would be hard to get a conviction for willful, criminal possession of the documents because Biden would present to a jury as a sympathetic, forgetful old man.

The House wanted to hear the interview. Garland gave them a transcript but said the White House had exerted executive privilege on the tapes.

Thus frustrated, the House has now taken the next step by holding him in contempt. And Garland’s DOJ has announced it will not prosecute him, relying on the precedent set by others in his position.

That precedent was reinforced when Trump’s Attorney General William Barr was held in contempt by Congress in 2020. Barr had become Trump’s second attorney general in 2019 and he continually clashed with the House Democrats who had just taken majority control of the chamber that year after a big showing in the election of 2018.

Among other things, Democrats wanted documents pertaining to a proposed citizenship question the Trump administration tried to add to the 2020 Census form. The Commerce Department under Secretary Wilbur Ross rebuffed the Democrats, and Barr backed that decision. So the House in July of 2019 found both Ross and Barr in contempt.

But Barr’s DOJ refused to prosecute him, citing “the Department of Justice’s long-standing position … that we will not prosecute an official for contempt of Congress for declining to provide information subject to a presidential assertion of executive privilege.”

At the time, House Democrats sought to enforce their contempt citation in the federal courts — just as Johnson’s House Republicans want to do now.  The Democrats’ effort was not successful.

Barr had been the second attorney general cited for contempt. The first was Eric Holder, who was appointed by President Obama and headed the Justice Department from 2009 and headed Justice for six years. Like Barr and Garland, Holder clashed with leaders of the opposition party when that party was newly in control of the House and eager to take on the president.

Holder balked at a subpoena for documents for which the Obama White House had exerted executive privilege. That led to his being cited for contempt, just as Barr and Garland have been since. Citing department policy and precedent, Holder’s DOJ declined to prosecute him, just as Barr’s and Garland’s would do. The House began impeachment proceedings against Holder that were dropped when he resigned in September 2014.

Fine points or turning points?

All the issues discussed here may seem to turn on relatively fine points of law that need not concern the average citizen. Absent a dramatic confrontation, which is nearly always avoided, it is possible for these differences and complications to fade.

At that point, we may be forgiven for turning the page or changing the channel.

But when one side or the other presses its case, or insists on a resolution, the lack of information and understanding in the general public becomes problematic.

Because we typically know so little about a particular procedure in government or the law, it is easier to sell us the version of the story preferred by the politician or media we prefer to listen to.

The best shield against such deception is knowledge. And that begins with a basic civic education and beyond that requires exposure to accurate, verifiable information. Whether the media of our time are meeting that need is an open and aching question.

If the citizenry had more information about how votes are cast, counted and certified would it be as easy to persuade tens of millions that the 2020 election was somehow rigged or stolen?

A study by the Brookings Institution in 2020 questioned whether U.S. schools were still teaching the basics of civics as they once had. While almost every state requires at least one course in civics before students graduate from high school, only a handful of them require that course to be more than one semester.

The study noted that public school curricula underwent major changes after the “Sputnik moment” in 1957 made Americans worry about falling behind the Soviet Union in the space race. Brookings also cited a 2018 study that found “while reading and math scores have improved in recent years there has not been a commensurate increase in eighth grade civics knowledge.”

So government and the law can be complicated and at times seemingly contradictory. What else is new?

We have grown accustomed to dismissing issues such as the information level and understanding of citizens and voters. If that’s a problem for a democracy, it’s a problem we have lived with for nearly 250 years. So how bad could it be?

We may be about to find out.

In the prosperous “American era” that has followed World War II, several generations of Americans have engaged in politics, many with attachment to one of the two major parties. But as a rule their very real differences and partisan feelings have not superseded their sense of being stakeholders in something larger.

Some may call that something larger America. Others may call it democracy. Some still believe it can be both.

But is that belief still strong enough to supersede our differences?