Finding Punishments to Fit the Crimes
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Finding Punishments to Fit the Crimes

Congress Doesn’t Have the Power to Force Trump and His Cabinet to Obey the Law

When you think Trump should face punishment for seriously bad behavior or revel in it, you might admit that what we have at this moment is a governmental crisis that defies easy expectation.

We know that we have a White House that has no respect for Congress, and a Democratic-majority House that seethes over a president getting away with well, several somethings, if not prosecution. And now, just to show he’s over any challenge, Trump is thumbing his nose at answering any questions from House chairs who want to pursue their Constitutional duty for governmental oversight.

Trump is thumbing his nose at answering any questions from House chairs who want to pursue their Constitutional duty for governmental oversight.

The result so far, as we saw last week, is to recommend contempt of Congress—and me—for Attorney General William P. Barr. But wait, there are already promises of more for say, former White House lawyer Don McGahn, should he decline a subpoena to testify, or any number of cabinet secretaries who now have the Trump license to tell the House leaders to go pound sand.

No Enforcement Plan

The problem is that no one quite knows what contempt means, other than the obvious malodor of disrepute. As a result, there’s no specific practical plan moving forward to figure out how to enforce contempt, other than to use the phrase as often as humanly possible on cable TV political shows.

So far as we can tell, the attorney general can still go about his business unimpeded, indeed even choosing to ignore the next call from Congress about the Mueller Report, any FBI investigation, his own investigation of the “origins” of the Mueller investigation, or whether to have a Fourth of July party at the Department of Justice.

Generally, the threat of contempt has been enough to goad negotiators into finding some kind of compromise. But not this crowd. If anything, relations between individual Democratic congressional leaders and the White House are worsening.

We cannot expect any viable, public explanations from the White House about immigration policy, about its failure to reunite children from migrant parents, about its campaign to undercut health policies and declare Obamacare illegal and dead, about any lack of gun control policies and school safety, about the effects of deregulation and widened pollution possibilities on the environment, on aid for communities that will suffer increasingly harsh results of climate disruption.

Here are the possibilities:

    • Criminal prosecution. Well, that would require referring cases of contempt to the attorney general, who already has shown he is disposed to ignoring factual findings toward prosecution of the current administration. In any case, he is not going to order prosecution of himself.
    • Civil court enforcement. This is more possible, but history suggests that such cases would take months or years to settle and that judges are wont to ask the governmental agencies involved to settle their troubles.
    • Congressional Jail. It turns out that Congress has a jail, but the prospects of sending a Capitol police officer to arrest the attorney general seems far-fetched. Subjecting a prisoner to C-Span speech excerpts by Sen. Ted Cruz (R-Texas) and others seems unduly harsh. And in any case, how does this resolve the issues?
    • Fines. This seems to hold the most promise. Rep. Adam Schiff (D-Calif.), head of the House Intelligence Committee, floated a $25,000 a day fine during an interview with Rachel Maddow. But most cabinet members are millionaires—some billionaires—and such a fine might seem as heavy as say $1 a day for you and me. Perhaps the number should be something sky-high, like $100,000 a day or $100 million a day. By the way, who would collect the money and where would it go? And who pays the bill if it is the White House claiming executive privilege over the testimony— Trump? McGahn? Mueller? Barr?

Thinking Through the Consequences

Any parent knows that before you discipline your kid, you’ve thought through what it might mean to have grounded him or her for a month, and that punishment is not enough to right the original wrong.

In this case, Barr refused to give an unredacted copy of the Mueller report—or about 40 of them—to members of the Judiciary Committee, and he snubbed a subpoena. The next one of these will be telling the Oversight Committee to stick its subpoena or the Intelligence Committee that there is no reason for the individual to appear.

Punishment is effective if it is believable. Solving the problem is even better, however.

May 10, 2019