Congressional Subpoenas, Special Prosecutors, and The Capitol Jail—Let the Games Begin

President Donald Trump has been predictably defiant in responding to the suggestion that House Democrats will unleash their newly won subpoena powers to investigate him, his administration, or his companies, warning that he is prepared to assume a “war-like posture” and that the Democrats “can play that game but we can play it better.”

He may be right—though we may not know the ultimate winner until the next call for a special counsel is answered.

The chief problem House Democrats face: if challenged, Congress can’t do much to enforce its own subpoenas quickly or effectively. A witness hauled before a House committee can simply invoke Fifth Amendment protections, and administration officials can also claim executive privilege. The committee can hold the witness in contempt; either chamber of Congress can pass a formal resolution of contempt through a simple majority vote. But a contempt citation is not self-executing.

Originally published in Bloomberg Law; reprinted with permission.