TheEconomistOctober 12th 2019 271G
ordon sondland, America’s ambas-
sador to the European Union (eu) and
author of lawyerly texts denying “quid pro
quo’s of any kind” between Mr Trump and
Ukraine’s president, was due to testify be-
fore the three House committees on Octo-
ber 8th. That morning, in a tweet that
showed he shared his ambassador’s fond-
ness for errant apostrophes, the president
blocked Mr Sondland from appearing be-
fore “a totally compromised kangaroo
court, where Republican’s rights have been
taken away.” Pat Cipollone, the White
House counsel, later broadened this recal-
citrance. The executive branch could not
“be expected to participate in” the House’s
impeachment inquiry, which he called a
“highly partisan and unconstitutional ef-
fort”. Where does that leave Congress?
As a matter of law, Mr Cipollone is
wrong: the constitution gives the House of
Representatives “the sole power of im-
peachment”. Mr Cipollone complained
that the president cannot cross-examine
witnesses or see the evidence against him.
That misunderstands the process. In animpeachment proceeding the House plays
the role of a grand jury, evaluating evidence
and weighing whether to indict. The presi-
dent mounts a defence in the Senate trial.
Mr Cipollone has asserted that the lack
of a full House vote to begin an impeach-
ment inquiry renders the current process
invalid. This has no basis in law or House
rules. Nancy Pelosi, the House Speaker,
may be playing politics in trying to ensure
that Democrats from districts Mr Trump
won do not have to cast a tough vote, but
impeachment is a political process as well
as a quasi-legal one. There are no rules that
say Ms Pelosi needs backing from a floor
vote to open an inquiry. Where Mr Cipol-
lone is right is that support for the inquiry
is partisan. But that is largely because
many Republicans are now reduced to ex-
cusing conduct that before 2016 they would
probably have deemed unacceptable.
In a civil or criminal trial, people who
flout a court’s instructions can be found in
contempt, and either fined or imprisoned
until they comply. This is not an option for
those running the impeachment inquiry inthe House. Congress has not detained any-
one since 1935, when a Hoover administra-
tion official was held at the Willard Hotel.
As fractious as American politics is today,
Ms Pelosi dispatching the Capitol police to
seize Mr Cipollone or Mr Sondland at the
White House, possibly precipitating a
physical confrontation between security
forces, would make things worse.
Some Democrats have considered reviv-
ing Congress’s powers of “inherent con-
tempt” which, at least in theory, allow
them to levy fines on recalcitrant witness-
es. Adam Schiff, the House Intelligence
Committee chair, suggested fines of
$25,000 per day. That would solve two pro-
blems for the House, and appeals for two
reasons. First, it would be quick, whereas
obtaining penalties for civil contempt
charges can require lengthy court battles.
Second, criminal contempt citations re-
quire the Justice Department to prosecute,
which, under William Barr, the attorney-
general, it is vanishingly unlikely to do. But
it is an untried strategy. The House would
first have to establish rules, and provide
contemnors with some form of due pro-
cess. The House majority would almost
certainly face a legal challenge if it invoked
inherent contempt, limiting its capacity to
change anyone’s behaviour.
Democrats thus find themselves with a
familiar dilemma. How should they exer-
cise oversight when the White House re-
fuses to follow the rules? One option would
be to move swiftly to an impeachment voteOversight and impeachmentWall of silence
WASHINGTON, DC
Assessing Congress’s options for dealing with an unco-operative White HouseUnited States
28 TheNBAgetsdunkedon
30 Chicagoneighbourhoods
32 SCOTUSandthe meaning of sex
34 AtlanticCity
36 Lexington: Republicans and
impeachmentAlso in this section