Jurisprudence

Democrats’ New Impeachment Plan Might Let Rudy Giuliani Skate on Contempt

Subpoenas mean nothing unless they’re enforced.

Giuliani speaking.
Rudy Giuliani at the “120 Years of Struggle of the Iranian People for Freedom” conference at Ashraf 3, a base for the People’s Mojahedin Organization of Iran, or MEK, in Manza, Albania, on July 13.
Gent Shkullaku/AFP/Getty Images

On Tuesday Donald Trump’s personal attorney, Rudy Giuliani, defied a subpoena to turn over documents to investigators overseeing Congress’ impeachment inquiry of the president’s efforts to pressure—and allegedly extort—Ukraine to investigate Trump’s political rivals.

In rejecting the subpoena, Giuliani cited the White House’s contention that the inquiry is illegitimate and that cooperation is therefore unnecessary. He also sent a direct message to Congress: What are you going to about it?

“If they enforce it, then we will see what happens,” Giuliani told ABC News. Giuliani has apparently recognized a simple fact behind the White House’s previously successful obstruction of the House’s Robert Mueller investigation: Subpoenas don’t mean anything unless they are enforced.

The problem for Congress is that there are only two mechanisms available to enforce its subpoenas. Neither option seems to have the backing of House leadership, but a failure to act could help hand Trump a quicker and easier acquittal in the Senate.

The first enforcement option would be to ask the courts to do the work of enforcing Congress’ subpoenas, a process that could take months depending on how urgently the courts deign to act. The second option would be to revive Congress’ long-dormant “inherent contempt” power to arrest—and potentially fine—obstructive witnesses. Congress used to enforce its own subpoena power through inherent contempt by voting to order the sergeant-at-arms to arrest and lock up obstructive witnesses in its own prison, the Old Capitol Jail. But the Old Capitol Jail was demolished in the first half of the 20th century, and Congress hasn’t used its power to arrest since 1935. (The power to fine is an untested one, but a primer by the Congressional Research Service demonstrated that multiple Supreme Court opinions from the early years of the republic indicated that the court viewed contempt fines to be within Congress’ powers as well.)

Neither option is ideal. Doing nothing, however, could result in the most critical witnesses stonewalling Congress. Democrats would have to press forward with the strong (but perhaps not strong enough to convince a sizable majority of voters) evidence they already have.

The Democrats appear to be taking a version of the do-not-enforce route at the moment. The plan, as surmised from statements from House leadership and members, seems to be to gather as much evidence as possible from cooperating witnesses, talk vaguely about holding recalcitrant witnesses “accountable,” hope that the evidence of misconduct that’s already public will convince three Republican senators to force Majority Leader Mitch McConnell to hold a full impeachment trial, and make the public case for impeachment without actually forcing the question of what to do with obstructive witnesses like Giuliani.

“There comes a point when you have enough evidence to call the question, and I think we’re pretty darned close to that point here,” California Rep. Jared Huffman told Slate, pointing to the damning partial transcript of Trump’s call with Ukrainian President Volodymyr Zelensky, along with a number of key depositions already taken by House investigators. “They keep having what seem like really significant witnesses in these depositions. If they believe they’re continuing to add value, certainly we should develop more of that, but remember we’ve sort of got the goods—we’ve got the White House’s own readout of what was said on that call and Trump’s own admission.”

The other part of Democrats’ plan seems to be to just rush the process to get it all over with. That might play right into McConnell’s plan for a quick, superficial trial in the Senate, resulting in what would amount to an automatic acquittal. According to Politico’s reporting, McConnell believes that “Democrats are of the same mind: let’s not drag this out for five weeks.”

The outlines of the get-this-over-with plan could be made out on Wednesday when House Majority Leader Steny Hoyer expressed reluctance to endorse using the inherent contempt power and indicated that Congress would move forward quickly with or without a favorable legal outcome in court challenges of contemptuous witnesses.

While inherent contempt “sounds appealing,” Hoyer told reporters, “we’ve made a judgment that we want the American people to understand that we are pursuing not arbitrary action, but considered and thoughtful action.”

“I don’t mean to say that inherent contempt is by definition arbitrary,” Hoyer said. “It may be perceived as arbitrary.”

Hoyer and the House Democrats’ calculus seems to be that enough witnesses will cooperate even without the explicit threat of jail to make up for the odd witness—like Giuliani—who refuses to cooperate. Hoyer also indicated that Congress would still go through the courts to help enforce its powers, so as not to appear completely powerless in the face of White House obstruction. “We are proceeding and we are winning, and the authority that we are claiming is being supported by the courts in the United States of America,” Hoyer said, hinting at a number of ongoing court challenges of White House obstruction.

Past court battles over enforcing such subpoenas, though, have dragged on for months and sometimes years, often without resolution. Hoyer indicated that the House would not wait for the court to move forward with impeachment. He told reporters that he hoped the inquiry would be concluded by the end of the year, which could mean before the courts get around to enforcing congressional subpoenas.

Huffman agreed that the timeline for impeachment should be quicker than any potential legal process.

“It’s almost an embarrassment of riches when you talk about putting a case like this together,” Huffman added. “We don’t want to let this get drawn out endlessly because [the White House does] want to run out the clock.”

Whether or not there’s a legal battle to enforce subpoenas on witnesses like Giuliani, Huffman continued, “a court fight for that should not delay impeachment.”

This is all in line with the Hoyer plan. Moving without enforcing subpoenas does not, however, lend itself well to bringing to light the full extent of White House corruption in this case.

Huffman did say that he supported the position of his colleague, Virginia Rep. Gerry Connolly, to “revisit inherent contempt” and “enforce our own subpoenas.”

However, he said that reviving inherent contempt itself could come with the “downside” that the White House would “develop this narrative of overreaching.” It’s not hard to imagine the Fox News–led media circus if Pelosi were to hold a full vote of the House to authorize her enforcement power and then actually exercise that enforcement power by placing Giuliani under arrest.

“We have to keep an eye on the plot,” Huffman said. “We have this impeachment imperative in front of us, and the president would like nothing more than to change the subject to the sideshow of Rudy Giuliani.”

Giuliani is of course the central witness in the president’s pressure campaign and is reportedly under criminal investigation himself for his connection to associates who have already been charged with crimes, some of which are central to the Ukraine plot. Huffman, for his part, suggested that it wouldn’t be the end of the world if Congress was unable to press Giuliani to testify because “at the end of the day I think he’s going to plead the Fifth, anyway.”

Failing to act against Giuliani, though, could inspire other critical witnesses to defy Congress. A key test of this question will come on Thursday when the apparent point person within the administration for Trump’s Ukraine pressure campaign, U.S. Ambassador to the European Union Gordon Sondland, is scheduled to testify, reportedly about direct evidence that the plan to pressure Ukraine also involved outright extortion and bribery.

Sondland appears ready to testify after a week of current and former White House officials—witnesses not named Giuliani—complying with congressional subpoenas and testifying on the Hill, but he has already backed out of testimony before Congress under pressure from the White House once before. The millionaire ambassador—who had no previous diplomatic experience and was only handed his post after a sizable donation to Trump’s inauguration committee—is perhaps the key witness, other than Giuliani, to the Ukraine conspiracy. If he follows Giuliani’s lead and again backs out of his testimony, it could damage the House’s case against the president.

Hoyer, on Wednesday, seemed to at least acknowledge that there has to be some mechanism for ensuring that doesn’t happen, saying “Mr. Giuliani will be held accountable to the Congress, as we will hold every other individual.”

It’s unclear at this moment, though, what “accountable to the Congress” actually means.