Thread by @AmoneyResists

Since there seems to be a lot of confusion about how Congressional subpoenas work, let’s review it and what they can do when witnesses refuse to comply.
(THREAD)

So what is a subpoena? A subpoena is a legally enforceable demand for documents, data, or witness testimony. In Latin, "sub poena" means "under penalty."

Subpoenas are most commonly used by litigants in court cases. The Supreme Court has also recognized Congress's power to issue subpoenas, saying in order to write laws, it also needs to be able to investigate crimes.

Congress' power to issue subpoenas, while broad, is not unlimited. The high court has said Congress is not a law enforcement agency, and cannot investigate someone purely to expose wrongdoing or damaging information about them for political gain.

A subpoena must potentially further some "legitimate legislative purpose," the court has said. So assuming the subpoena is issued for a legitimate reason, what can Congress do when someone refuses to comply?

The first thing they can do is hold the offender “in contempt of Congress.” The contempt process can start in either the House or the Senate. Unlike with legislation, it only takes a majority in ONE of the chambers to make and enforce a contempt citation.

Typically, the members of the congressional committee that issued the subpoena will vote on whether to move forward with a contempt finding. If a majority supports the resolution, then another vote will be held by the entire chamber.

Democrats currently hold majorities, albeit slim ones, in both the House and Senate. The House is currently investigating January 6th with a select committee chosen by @SpeakerPelosi because Republicans in the senate rejected forming a bipartisan committee in that chamber.

Trump and the @GOP’s main strategy for avoiding accountability is to run out the clock. They tried this strategy from 2018-2020 to prolong investigations until the next Congress was seated, hoping they could dissolve the investigations or argue contempt citations have expired.

How is a contempt finding enforced? There are a number of ways. The first is arresting or detaining witnesses. The Supreme Court said in an 1821 case that Congress has the “inherent authority” to arrest and detain witnesses that don’t cooperate.

In a 1927 case, the high court said the Senate acted lawfully in sending its deputy sergeant-at-arms to Ohio to arrest and detain the brother of the then-AG, who had refused to testify about a bribery scheme known as the Teapot Dome scandal.

However, it has been almost a century since Congress exercised this arrest-and-detain authority, and most legal experts believe the practice is unlikely to make a comeback (no matter how warranted it is). So what else can they do?

Congress can ask the U.S. attorney for the District of Columbia (a federal prosecutor) to bring criminal charges against a witness who refuses to appear. There is a criminal law that specifically prohibits flouting a congressional subpoena.

Worth noting this option was not viable for getting witnesses affiliated with Trump to testify while he was in office because it relies on the executive branch to be enforced. Now that Biden is President, and has said he will not invoke executive privilege, it is viable again.

The last option Congress has to enforce a contempt finding is getting its lawyers to bring a civil lawsuit & requesting a judge rule that compliance is required. Failure to comply with such an order can trigger a “contempt of court” finding, bringing daily fines and imprisonment.

Congressman @tedlieu has introduced a bill that would allow Congress to impose fines of up to $100,000 on witnesses that are found in contempt of Congress, which would greatly strengthen their power to hold witnesses accountable. They should pass this ASAP.

Yesterday, both House chairs of the January 6th select committee said they would enforce subpoenas and are considering criminal referals to hold Bannon in contempt. We need to keep pressure on them to use all their powers to #EnforcetheSubpoenas.

https://twitter.com/amoneyresists/status/1446524681675317267?s=21