Debra Saunders reports for the Las Vegas Review-Journal:
WASHINGTON -- Can Attorney General William Barr thumb his nose at Congress and get away with it? Can the nation's top lawman refuse to honor a House Judiciary Committee subpoena for an unredacted version of Special Counsel Robert Mueller's report and not pay a penalty?
In 2012, then-Attorney General Eric Holder did just that. Holder defied a congressional subpoena to furnish documents about "Fast and Furious," a program to attempt to trace gun trafficking along the Southwest border that went awry. The House held Holder in contempt, but since Holder declined to indict himself, the controversy faded. Holder resigned in 2015.
"Congress can't enforce their own contempt charges; all they can do is give notice to the attorney general that they would like it enforced, and Eric Holder never enforced it against himself," observed Mark Harkins, a senior fellow at Georgetown University's Government Affairs Institute. Harkins doesn't expect Barr to charge himself, either.
Stanford law professor Michael McConnell wrote in the Washington Post about the parallels between Barr and Holder. The Barack Obama administration said disclosing information about executive decision making would "inhibit the candor" of officials inside the administration. An assistant attorney general falsely told Congress the Obama administration was unaware of "Fast and Furious" -- a claim the administration had to pull back -- and Holder said he would provide the subpoenaed documents only if the committee agreed to close its investigation.
Next, as far as Holder was concerned, nothing happened. "The Obama administration ran out the clock. Holder never complied with the subpoena and went unpunished for contempt," McConnell wrote.
What about the "power of inherent contempt", which allows each house to have someone arrested by its Sergeant-at-Arms, and sentenced to imprisonment after trial on the house floor?
The Senate claims on its website that it can even arrest and detain the President of the United States:
https://www.senate.gov/pagelayout/reference/one_item_and_teasers/sergeant_at_arms.htm
I've heard that, but I understand it hasn't actually been done in a century and a half. We will see if they actually try it.
Once in a great while there is an actual constitutional use of force showdown. Chief Justice Taney sent a writ of habeas corpus for a Confederate sympathizer to Fort McHenry. The commander ignored it with the support of the commander-in-chief. Taney shrugged and said there was nothing further he could do. He couldn't send the marshal and a posse against an army.
Political support, or lack of it, may be decisive. I think a growing majority of the American people are just sick of the whole matter and want to move on.
The power to convict and incarcerate (and why not to fine?) can be regarded as beyond the pale for a legislature. But it can also be regarded as unbalanced to have contempt of Congress enforceable only through the very executive branch it is supposed to oversight.
Allowing congressional action before the judicial courts could be a middle ground, and the Senate can already do that as a civil suit under 2 U.S.C. ยง288d. One might ask who would enforce such court order, and whether the President can pardon contempt of Congress, but these two issues apply equally to contempt of court (and indeed, in such a case we could have both kinds of contempt).