Washington, DC…The House issued a subpoena ordering the Attorney General to produce the audio recording of the Robert Hur interview with President Biden.  The administration based its decision not to prosecute Mr. Biden on Hur’s assessment that a jury would view him sympathetically as an “elderly man with a poor memory.”  Meanwhile, the same administration is vigorously attempting to jail President Trump for the same offense.  Knowing the full context of this interview requires all of the non-verbal cues that a written transcript cannot fully and faithfully reproduce.  This understanding is essential to inform the House whether a double standard is being applied and what statutory changes may be necessary to correct it.

The Attorney General has defied the House subpoena, making specious claims of executive privilege that are certain to be struck down by the courts.  The House has held the Attorney General in contempt, but the Department of Justice that he heads refuses to prosecute him.  This produces a second glaring double standard, since that same Justice Department has already prosecuted and jailed two Trump administration officials for the same offense.

To enforce its subpoena, the House is pursing the matter in court in order to obtain a ruling on the legality of the Attorney General’s refusal to comply.  This is the appropriate response, and the same process that ultimately compelled Richard Nixon to turn over tape recorded conversations in the Watergate investigation.

Nevertheless, a resolution proposing to invoke “Inherent Contempt” against the Attorney General was brought to the floor.  It levies a fine against the Attorney General of $10,000 a day until he complies.

“Inherent Contempt” is an established – although seldom used — power that Congress holds to defend its own proceedings, including the issuance of subpoenas.  Under several Supreme Court decisions, this allows the House to arrest individuals and bring them to the bar of the House to answer for their conduct.  The last time the House invoked this power was in 1934.

This resolution is a gross misuse of this power and I oppose it.

First, there is no precedent for the use of this power to levy fines, and there is no procedure for enforcing those fines once imposed.  Under “inherent contempt” the House only has limited authority to detain the individual and to censure him.  When Adam Schiff suggested abusing this power to fine Trump administration officials, the House wisely ignored him.

Second, the same Supreme Court cases that have upheld this power also require the respondent be accorded fundamental due process rights.  The accused has the right to answer the charges, mount a defense, and challenge the legislative purpose that this power is being invoked to discharge.  None of these elements is present in this resolution.

Third, the House is already pursuing the enforcement of its subpoena in a conventional and responsible manner: by challenging the Attorney General’s refusal to comply in court.  This resolution taints the House’s legitimate legal efforts with what can only be interpreted as reckless and irresponsible political grandstanding.  By abusing this power in a novel manner that ignores due process, it threatens to provoke a constitutional crisis in an unusually tense moment in our history, further undermining the standing of our fundamental institutions.