House Democrats are in a bind. The White House refuses to cooperate with their investigations into President Trump and his administration. In response, Democrats have tried to retaliate, most recently taking the first steps toward holding Attorney General William Barr in contempt of Congress, issuing subpoenas for Trump’s tax returns and pressing the administration for more information about its decision to argue that the Affordable Care Act should be completely overturned. But they’re running out of moves, especially with impeachment off the table for now. And their remaining options aren’t simple — some would be difficult to pull off for practical reasons, and all carry significant political risks.
The traditional path for trying to get unwilling presidents to comply with congressional oversight — taking the dispute to the courts — is slow. So Democrats have started to talk about trying to force the Trump administration to cooperate by jailing, fining or withholding salaries. Some of these maneuvers could prevent the Democrats from looking weak against the White House in the short term, but there’s no guarantee that they’ll be effective in the long term — either for giving Democrats leverage over Trump or changing the political narrative.
Fighting it out in court is the most conventional strategy Democrats could employ, and it’s probably the one with the highest likelihood of actually forcing the Trump administration to turn over Trump’s tax returns or the unredacted report on special counsel Robert Mueller’s investigation into Russian interference in the 2016 presidential election. But legal experts said these cases could take months or years to resolve even if they’re fast-tracked. And Democrats still aren’t guaranteed a win, which means that after all that time, they might end up with nothing to show for it.
A big part of the problem is that a single house of Congress just doesn’t have a lot of formal leverage over the executive branch. The standoff between House Democrats and the Trump administration has shown how dependent Congress’s oversight powers are on the cooperation of the executive branch. “This is one of the most significant examples we’ve seen of a Trump-era moment revealing some of the structural inadequacies of our political system,” said Steve Vladeck, a law professor at the University of Texas at Austin.
Faced with a system that’s tilted toward the president, Democrats are being forced to think creatively. And the handful of other options that have emerged would really up the ante — possibly more than they want. They are:
- Start locking people up. In an interview with The Atlantic last week, Democratic U.S. Rep. Jamie Raskin raised the possibility that Congress could dust off its “inherent contempt” power, which allows it to arrest and temporarily detain uncooperative witnesses. Raskin said that although many House members weren’t aware of it, its “day in the sun” was coming. The problem is that this power hasn’t been exercised since the 1930s and any attempt to arrest a member of the Trump administration could backfire. Such a move might create the impression that the Democrats’ investigations are pure partisan theater and turn off moderates, or if the official resisted, it might lead to an actual standoff between the executive and legislative branches of government.
- Issue fines. Some congressional Democrats, including House intelligence committee Chairman Adam Schiff, have argued that their inherent contempt power could also allow them to fine administration officials who are held in contempt. Josh Chafetz, who is a professor of law at Cornell University and studies the relationship between Congress and the executive branch, said that issuing fines would be unprecedented, which raises some practical roadblocks: The fine would probably be challenged in court, and no mechanism exists for making an official pay up. A fine might, in the abstract, be seen by the public (or even other members of Congress) as less of an overreach than jailing an official like Barr, but it would be difficult — if not impossible — to enforce.
- Withhold salaries and funding from the executive branch. A final possibility is to weaponize Congress’s power of the purse, either by cutting off the salaries for administration figures who won’t testify or turn over information or withholding funding for federal programs or agencies. House oversight committee Chairman Elijah Cummings floated this possibility last week, saying that he’d consider withholding pay from executive branch employees who are refusing to be interviewed as part of ongoing investigations. It’s not entirely clear how this tactic would be enforced, though. And any larger attempts to withhold funding from the executive branch would require cooperation from the Senate and might risk another government shutdown. Including measures to dock salaries or withhold money for important programs in budget bills might exert pressure on Senate Republicans or the Trump administration, but the Democrats could also be blamed for any resulting gridlock.
If Democrats pursue the more unconventional routes I outlined above, one challenge for them will be to convince voters that it’s Trump’s behavior — not theirs — that’s unusual. Chafetz said Democrats could try to marshal public opinion with a high-profile event like congressional testimony from Mueller that would highlight the Trump administration’s refusal to cooperate. But as the investigations continue, he said, it may be increasingly difficult to maintain the public’s attention. And Americans could grow impatient if the process starts to drag out with no clear end in sight.
This may already be happening. A recent Reuters/Ipsos poll found that 57 percent of Americans — including about half of Democrats — believe that continued investigations into Trump would interfere with important government business. The same poll saw an increase in support for impeachment, from 40 percent in mid-April to 45 percent. So it’s not clear whether the findings are a sign that Americans want the Democrats to pull back on their investigations or start moving toward impeachment.
But if impeachment doesn’t become more politically viable, Democrats may be forced to consider whether brinksmanship is the right strategy for forcing the Trump administration to back down and comply with some of their requests. Nothing at this point seems like a straightforward winner: Relying on external mechanisms like the courts would mean Democrats concede ground to the White House and could still result in a loss, and more dramatic responses carry big political risks with no promise of a reward. The question is what kind of gamble the Democrats are willing to take to get the information they want from the president — because at this point, they’re out of safe options.