© Tom Williams/CQ Roll Call/FileThen-White House counsel Don McGahn listens to testimony at the Senate Judiciary Committee’s Supreme Court confirmation hearing for Brett Kavanaugh in Hart Building in September.
"Let me be clear: this Committee will hear Mr. McGahn's testimony, even if we have to go to court to secure it. We will not allow the President to prevent the American people from hearing from this witness," Nadler said at a hearing Tuesday for McGahn that the former White House lawyer skipped per the administration's orders.
The White House argued in a letter to Nadler Monday that McGahn has "absolute immunity" and is not legally required to comply with a congressional subpoena, citing an internal Justice Department opinion that determined Congress cannot compel the president's senior advisers to testify about their official duties.
Nadler summarily dismissed that line of reasoning Tuesday as he foreshadowed a contempt vote. The vote is expected to occur when Congress returns from its recess in June.
© J. Scott Applewhite/Associated PressHouse Judiciary Committee Chairman Jerrold Nadler, D-N.Y., leads his panel on a hearing about executive privilege and congressional oversight, on Capitol Hill in Washington, Wednesday, May 15, 2019
Voting to hold McGahn in contempt of Congress will not, in itself, trigger a series of consequences to compel evidence and testimony from the former Trump lawyer that Nadler seeks.
Nadler, with input from Speaker Nancy Pelosi and other Democratic leaders, must decide which of the three traditional contempt enforcement mechanisms to deploy: dispatching the House Sergeant-at-Arms to arrest and detain McGahn; referring a criminal case to the Justice Department, which could lead to McGahn jailed or fined until he complies with the subpoena; or filing a civil case against him.
Some lawmakers and most legal experts have dismissed the first option, known as "inherent contempt," as bizarre and overly confrontational. The Sergeant-at-Arms hasn't arrested someone for contempt of Congress since 1934.
A criminal proceeding requires that the Justice Department actively pursue the referred case against McGahn, unlikely since Attorney General William Barr, whom Judiciary Democrats voted to hold in contempt earlier this month, leads the department.
A civil contempt case against McGahn does not require compliance from the executive branch, but could drag out for years in court and possibly outlast Trump's presidency. Plus judges are wary of adjudicating constitutional power struggles between the executive and legislative branches.
There could be a fourth option.
House Intelligence Chairman Adam Schiff indicated earlier this month that he is exploring the legal basis for Congress to levy fines against officials who flout congressional subpoenas demanding their testimony.
"We're looking through the history and studying the law to make sure we're on solid ground," Schiff said. "You could fine someone $25,000 a day until they comply. You can do that," the California Democrat said.
If Democrats determine that they are indeed on sound legal ground to fine administration officials for refusing to cooperate with a subpoena - as judges routinely fine people who disrupt proceedings - Nadler could use that option to squeeze the pocketbooks of Barr and McGahn until they comply. Such swift action could help Democrats procure the information they want in a much timelier fashion than the three traditional enforcement mechanisms.
But Democrats could have yet another button on the table, a button that some members of leadership have already suggested Pelosi and Nadler should press: impeachment.
Rep. David Cicilline said Monday that if McGahn followed through on his planned no-show for the hearing Tuesday, Democrats should begin an impeachment proceeding against the president as a legal grounds for obtaining the documents and testimony they've requested and repeatedly been denied.
"This is a coverup by the White House, and there comes a point where we have to stand up for the rule of law," Cicilline, a Rhode Island Democrat on the Judiciary panel, said Monday. "It is not just about this president. It is about future presidents. It's about the message it sends about our respect for the Constitution and for the rule of law. And if this pattern by the president continues, where he's going to impede and prevent and undermine our ability to gather evidence to do our job, we're going to be left with no choice."
Other Democratic leaders have resisted calls to begin an impeachment proceeding as a mechanism to force compliance from a resistant administration.
"I agree with Speaker [Nancy] Pelosi that the case should be compelling, the evidence must be overwhelming and the sentiment around impeachment should be bipartisan in nature," the Rep. Hakeem Jeffries of New York said. "We're still in the fact-gathering process."
Judiciary and oversight subpoena power, explained
That's bad enough without the threat of $25K fine per day .. from day one too