President Donald Trump’s personal attorney Rudy Giuliani has defied a subpoena issued as part of the investigation led by the House Foreign Affairs, Intelligence, and Oversight Committees—his own lawyer calling the impeachment inquiry “unconstitutional, baseless, and illegitimate.”
Trump himself has tried to delegitimize the inquiry, calling it unlawful because House Speaker Nancy Pelosi (D-Calif.) did not hold a formal impeachment vote.
As a result of this strategy, several Trump officials and allies have been unwilling to cooperate with the investigation—but how long they can continue to do so depends on the Democrats’ next move.
Congress has several enforcement options.
1. Bring in the courts
Lawmakers can file a civil lawsuit asking a court to enforce the subpoena, but taking the matter to the courts could last several months or even years.
The Trump administration is already facing several lawsuits for blocking subpoenas from various House committees, including the Oversight and Reform committee, the Ways and Means committee, and the Judiciary committee.
For instance, White House counsel Don McGahn and Treasury Secretary Steve Mnuchin both disregarded previous House-issued subpoenas during the Mueller investigation, as instructed by the White House. The House sued McGahn, as well as Mnuchin and the Treasury Department.
House Democrats voted in June to hold Attorney General William Barr and Commerce Secretary Wilbur Ross, who both ignored House subpoenas during the investigation, in contempt of Congress, though the move was largely symbolic.
Though the House has previously taken such matters to court, the Trump administration has made clear it would fight the suits by all possible means.
House Democrats who see this as an option are adamant that a battle in court should not delay impeachment proceedings, while also believing that some punitive action must be taken.
2. Ask for criminal charges
Congress can also ask the U.S. attorney of D.C. to bring criminal charges against witnesses who won’t comply.
But they are not likely to take this route because Congress would need to ask the Justice Department to bring forth a case, and the Department is currently headed by Trump loyalist William Barr.
If Congress were to pursue criminal contempt charges for obstruction, the maximum punishment for a federal contempt charge would be a $100,000 fine and a year in jail.
3. Inherent Contempt
Congress could also enforce its own subpoena power, called “inherent contempt,” which allows Congress to fine and arrest witnesses for obstructing justice.
In order to hold a witness in contempt of Congress, members of either the House or Senate—whichever chamber starts the contempt process—would vote on whether to move forward with a resolution. In this case, the vote would likely take place in the Democrat-controlled House. And a legal battle could delay the impeachment investigation.
Congress has not used its “inherent contempt” power to arrest since 1935.
Which officials have defied their subpoenas so far?
Rudy Giuliani, Trump’s Personal Attorney
Deadline: October 15 (Missed)
Democrats requested that Giuliani hand over documents related to their inquiry into Trump’s calls with the Ukraine, during which he urged Ukrainian President Volodymyr Zelensky to investigate Democratic presidential contender Joe Biden and his son, Hunter.
The subpoena, issued on September 30, seeks Giuliani’s text messages, phone records, and other communications. So far, House officials have only asked for the documents and have not requested that Giuliani appear in court.
Lev Parnas and Igor Fruman, Giuliani associates
Deadline: October 7 (Missed)
The two men were ordered by three House committees to hand over documents by October 7 and to appear in court to testify as part of the impeachment investigation. Parnas’s deposition was scheduled for October 10, and Fruman’s for October 11.
The subpoenas were issued on September 30, just hours after the two were arrested on campaign finance charges while attempting to flee the country.
In a letter to the Committees dated October 9, legal counsel for Parnas and Fruman said they “agree with and adopt the position of the White House Counsel” and stated their refusal to cooperate with the probe.
Department of Defense and Office of Management and Budget
Deadline: October 18 (Partial, Missed)
The Department of Defense and the Office of Management and Budget were both subpoenaed with a Tuesday deadline. Pentagon chief Mark Esper said the Defense Department would turn over some documents, while the latter office said it would not comply.
Mike Pompeo, Secretary of State
Deadline: October 4 (Missed)
Secretary of State Mike Pompeo was issued a subpoena from the chairmen of the House Foreign Affairs, Intelligence and Oversight committees on September 27. He failed to meet the October 4 deadline.
Rick Perry, Outgoing Energy Secretary
Deadline: October 18 (Missed)
Outgoing Energy Secretary Rick Perry who announced his resignation on Thursday was subpoenaed on October 10 by chairmen of the House Intelligence, Foreign Affairs and Oversight committees. The lawmakers set a deadline of October 18, and Perry has refused to comply.
Mick Mulvaney, Acting White House Chief of Staff
Deadline: Friday (Unclear)
Mulvaney was subpoenaed on October 4 by the three committees seeking documents as part of the House impeachment inquiry.
Democratic lawmakers are now also interested in hearing Mulvaney testify after he acknowledged during a news conference that the White House had threatened to withhold nearly $400 million in military aid to the Ukraine if it did not investigate an unproven theory that Ukraine — not Russia — had interfered in the 2016 election. Democrats have not issued a subpoena for Mulvaney to testify.
Mike Pence, Vice President
Pence was also asked on Tuesday to turn over records to House Democrats, though they did not issue a formal subpoena. His office signaled that he would comply only if Congress returned to the “regular order of legitimate legislative oversight requests.”
Obstructing and delaying the House impeachment inquiry appears to be the Trump administration’s current strategy. “We’re fighting all the subpoenas,” Trump said in April.
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