US National Security Adviser John Bolton speaks during a media conference in Kiev. John Bolton arrived to Kiev to meet with the top Ukrainian officials.
Pavlo Gonchar—SOPA Images/LightRocket via Gett
By Daniel S. Alter
November 21, 2019
IDEAS
Alter is a former Assistant United States Attorney for the Southern District of New York, former senior advisor and special counsel to the New York State Attorney General, and former general counsel for the New York State Department of Financial Services. He is an attorney in New York City and a former Coker Fellow in Constitutional Law at Yale Law School.

For several weeks, the House of Representatives and the President have been playing a destructive game of chicken. In support of the impeachment inquiry underway by the Democratic House majority, the House Committees on Intelligence, Foreign Affairs and Oversight have issued subpoenas for documents and testimony from State, Defense and Energy Department officials as well as White House staff. Those subpoenas seek information regarding the Administration’s now-abandoned demand that the Ukrainian government investigate former Vice President Joe Biden and his son Hunter for corruption before it would receive nearly $400 million in U.S. military aid.

President Trump is defiant. Proclaiming that the impeachment inquiry is a sham, the president has flatly directed the House-subpoena recipients to ignore them. With disdain for the sole constitutional safeguard against a President’s “Treason, Bribery, or other high Crimes and Misdemeanors,” Trump has essentially told House investigators to pound sand.

The President and his supporters have vociferously condemned the House inquiry for yielding too little firsthand information about the Ukraine affair. Yet, what we know so far from the witness testimony to date is that the people with the most firsthand knowledge – including Secretary of State Mike Pompeo, Secretary Rick Perry, Acting Chief of Staff Mick Mulvaney, former Deputy National Security Adviser Charles Kupperman, and Rudolph Giuilani – have, at the President’s instruction, refused to tell us what they know.

Under the Constitution, Congress is not impotent in the face of brute obstruction.

The Supreme Court has repeatedly ruled that each chamber of Congress can hold a person in contempt for flouting a legislative subpoena, and – as Justice Brandeis explained in Jurney v. MacCracken – each chamber may also coerce obedience “by means of arrest.” In other words, the House Sergeant at Arms may take people into physical custody until they provide information withheld from Congress.

Over 90 years ago, the Supreme Court in McGrain v. Daugherty took note that “mere requests” for information “often are unavailing,” and that information voluntarily provided to Congress “is not always accurate or complete.” The Court thus agreed with Congress that various “means of compulsion are essential to obtain what is needed” — that is, that “the power to inquire – with process to enforce it – is an essential and appropriate auxiliary to the legislative function.” In fact, because coercive custody was a familiar legislative practice that pre-dated the Constitution, the Court concluded that it was an inherent congressional power granted by Article I.

That inherent power has not evaporated over the last century.

That Congress can imprison a person who defies a legislative subpoena does not mean, however, that it should do so at every opportunity. Quite to the contrary – especially in cases involving highly partisan disputes, where discretion and sound judgment are the measure of good governance. Jailing someone for contempt is a drastic action and is sure to fuel political strife. Usually, the most responsible way for Congress to enforce a subpoena is to undertake civil proceedings in federal court. That can be a long process, though, and time is of the essence when the occupant of the Oval Office may have betrayed the country.

Adding to the complexity of considerations, imagine if a congressional-subpoena recipient were presently employed by the executive branch. It would create a potentially incendiary spectacle for the House Sergeant at Arms to execute an arrest warrant at the White House or some executive agency, or to seize an executive officer at home. Good stuff for on-screen political thrillers, but wildly inconsistent with the constitutional separation-of-powers doctrine that peacefully keeps our three branches of government from interfering with each other’s operations.

Moreover, an active member of the executive branch might have a more solid argument that Congress’s demand for information was constitutionally barred by executive privilege than would someone retired from service. Presidents are entitled to seek confidential guidance from their advisors, and those discussions are presumptively shielded from judicial and legislative inquiries – although that presumption is vulnerable to overriding principles of justice and fair play.

But what if there were a critical witness, say a very senior official, who is no longer an officer of the executive branch? What if that person had a spokesman announce that he or she has firsthand knowledge of “many relevant meetings and conversations” regarding the impeachment inquiry “that have not yet been discussed”? And what if that person insisted that he or she would not testify before Congress unless and until a federal court ruled that a House subpoena was enforceable? What should the House of Representatives do in those circumstances?

Well, according to his own attorney’s statement, Ambassador John Bolton – President Trump’s former National Security Advisor – is that witness. Indeed, witness after witness at the House impeachment hearings has confirmed the centrality of Bolton’s role in all of this. Given Mr. Bolton’s senior rank, political gravitas and widely reported opposition to Mr. Trump’s dealings with Ukraine, his testimony could condemn or vindicate the President. Either way, he is a source of invaluable evidence in a matter of the highest national importance. In no circumstances, therefore, must the House give Bolton the prerogative to put conditions on his compliance with a subpoena.

No, the House should stand firm, subpoena Mr. Bolton, and – if he refuses to comply – exercise its constitutional authority to detain him until he agrees to testify.

If ever there were a valid basis for Congress to punish contempt by imprisonment, it’s a private citizen’s refusal to give evidence that is crucial to presidential impeachment proceedings. There are few congressional actions that are as grave and requiring of a more thorough investigation. The House Intelligence Committee has so far declined to subpoena Mr. Bolton, with an official claiming that it has “no interest in allowing the administration to play rope-a-dope with us in the courts for months.” But that reservation was clearly founded on the committee’s assumption that its subpoena would be tested in court through civil enforcement proceedings. Considering its power to arrest Mr. Bolton, however, perhaps the House should reevaluate that decision – thereby giving Mr. Bolton the incentive to reevaluate his.

The prospect of sitting behind bars can make a person seriously examine the legitimacy of his or her position. That’s the point of coercive custody. And Bolton just might reconsider his silence now that days of public impeachment testimony have likely shredded any remaining claims to executive privilege. Not only is he no longer in the Administration, the subject matter has already been disclosed in detail by numerous witnesses.

Bolton has claimed that he won’t testify for fear of potential legal repercussions from revealing confidential information, even though none of the hearing witnesses has yet to have this issue. In truth, he’s likely more worried about provoking the ire of the Republican Party.

But if he remains silent, it is highly unlikely that the dispute will stall in the courts. Should he be arrested, Bolton would surely have his lawyers file an emergency petition for a writ of habeas corpus, arguing that he’s being held illegally. This request for immediate release would put his legal arguments against testifying on the fast track for judicial determination. When someone’s liberty is at stake, courts generally do not postpone hearings for weeks, as they might in a civil subpoena enforcement action. So there is little chance of martyrdom.

Ambassador Bolton was the President’s National Security Advisor and is rather hawkish by reputation. He, above all, appreciates that the rules of hardball apply when the safety and security of the United States are at risk. The impeachment inquiry is closely scrutinizing whether those vital interests have been compromised. Mr. Bolton, it’s time to play ball.

Contact us at editors@time.com.

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