IN 1924, a Senate committee investigating the Teapot Dome bribery scandal issued a subpoena to Mal Daugherty, a bank president and brother of Harry Daugherty, who would soon resign as attorney-general. When Mal failed to appear, the Senate dispatched its deputy sergeant-at-arms to Ohio to arrest him. Daugherty challenged his arrest, arguing that the Senate had exceeded its authority. The Supreme Court disagreed. Not only can Congress compel testimony essential to “a legislative function”; “it is to be presumed” that congressional investigations are intended “to aid [Congress] in legislating,” and “it is not a valid objection to such investigation that it might disclose wrongdoing or crime by a public officer.”
President Donald Trump has sued two banks to stop them complying with House subpoenas, and asked a federal court to block another to an accounting firm used by the Trump Organisation. He has vowed to fight one subpoena issued to Don McGahn, a former White House counsel, and has ordered an official who oversaw White House security clearances not to comply with another. More subpoenas may soon follow, most likely to compel testimony from William Barr, Mr Trump’s attorney-general, who may skip a planned appearance before the House Judiciary Committee because he dislikes the questioning format, and to obtain Mr Trump’s tax returns, which he has refused to turn over to the Ways and Means Committee.
Congressional subpoenas are not all-powerful. Various presidents have fought them for different reasons. The usual levers brought to bear against private citizens who ignore subpoenas—fines and imprisonment—are harder to use against executive-branch officials. And congressional oversight, says Andrew Wright, an associate counsel to Barack Obama who is now a partner with K&L Gates, a law firm, “is a quasi-political, quasi-legal process” that usually resists quick resolution. This does not mean that Mr Trump—who said on April 24th that “we’re fighting all the subpoenas” because the House Democrats issuing them “aren’t, like, impartial people”—can simply ignore them, merely that this fight will probably have a political rather than a legal resolution.
Congress can charge people who ignore subpoenas with contempt, which requires a majority vote in a single chamber. Enforcing that charge is trickier. The days of apprehension by the sergeant-at-arms followed by detention are over; that power has not been used since 1935, when a Hoover administration official was held at the Willard hotel. Contempt of Congress has been a federal crime since 1857, but Mr Barr is unlikely to approve prosecuting either his boss or anyone who was following his boss’s orders.
That leaves civil contempt as a possible legal avenue. Congress can ask a federal court to compel obedience to a subpoena. This can take a while. In October 2011 Eric Holder, Barack Obama’s attorney-general, received a congressional subpoena. Mr Obama tried to block it by declaring executive privilege in June 2012. A court rejected Mr Obama’s blanket claim of privilege, but not until January 2016.
The current standoff may finish faster, for two reasons. First, many of the justiciability concerns that took courts time to work through during the Obama and Bush administrations have been resolved. And second, as Stephen Vladeck, a law professor at the University of Texas, explains, Mr Trump’s statement of blanket refusal “suggests that case-specific objections are post-hoc rationalisations”, which courts may be inclined to swiftly reject.
But legal battles still take some time to adjudicate. That may annoy Democrats but suit Mr Trump perfectly. His supporters prize his pugnacity, and he prefers table-pounding defiance to the intricacies of legal compromise. Also, political salience fades over time; he may reckon that if he loses in court, the public will have moved on to the next outrage. And congressional subpoenas expire when the current Congress does, making a successful play for time a victory, of sorts.