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In the ongoing attempts by Democrats to impeach Donald Trump, the media reports that the White House has refused to cooperate with the probe. Example. As I understand things now there are witnesses the Democrats want to talk to, but who are refusing to testify. The Democrats have issued subpoenas (which, again as I understand it, force the recipient to testify), but several witnesses have refused to testify anyway.

What happens if a subpoena is defied? Presumably there must be some consequence for this, and the linked source says that Ex-Trump aide Kupperman refusing to testify may "warrant a contempt proceeding against him". Wikipedia's article on Contempt of Congress says that in this case, the offender is "arrested by the Sergeant-at-Arms for the House or Senate, brought to the floor of the chamber, held to answer charges by the presiding officer, and then subjected to punishment as the chamber may dictate", with the typical punishment being imprisonment. However, if any of the subpoena'd witnesses have actually been arrested, let alone been imprisoned, I've not read about it.

Question: If the above picture is correct, why hasn't the media reported on the arrest of any of the witnesses? If it is incorrect, what actually happens?

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    You've neglected that there are actions that the Congress may take short of an arrest. As well, Kupperman filed a lawsuit asking for a declaratory judgement to resolve what he feels is a conflict between his duty to appear and his duty to his president. Arguments were scheduled for December.
    – BobE
    Commented Nov 8, 2019 at 5:11
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    For Contempt of Congress, see the Eric Holder case. He was AG under Obama and was held in Contempt of Congress. This was basically ignored and resulted in no further action against Holder.
    – Sjoerd
    Commented Nov 8, 2019 at 12:49
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    @Allure See Carduus' answer: unsurprisingly, the DOJ declined to prosecute Holder, and Congress didn't pursue it further, since the goal was simply to make a political statement. If they wanted to, there were further options they could have taken
    – divibisan
    Commented Nov 8, 2019 at 18:48
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    @Joe - The assertion of Executive Privilege can certainly be employed to attempt to block the production of specific documents (see Nixon's failed attempts), and the assertion of Executive Privilege to prevent specific discussions/conversations has been successfully employed to thwart specific testimony. However, the notion that an subpoena for appearance can be blocked on the basis of EP is nonsensical. Please cite your cases.
    – BobE
    Commented Nov 8, 2019 at 19:12
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    @BobE: But if he shows up and answers every question with "I'm waiting for the declaratory judgement to tell me whether to answer that question.", then it's just a waste of everyone's time. Better to schedule the appearance based on the declaratory judgement, even though appearance is not in question.
    – Ben Voigt
    Commented Nov 8, 2019 at 23:18

1 Answer 1

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In the normal process of things, Congress would refer to this as 'criminal contempt' and refer the matter to the Department of Justice for the Attorney General to prosecute those who had defied subpoenas, with the end result being fines and jail time for those who violated the subpoena. Unfortunately, given William Barr's behavior towards obstructing the impeachment investigation, Democrats have very little trust that Barr would actually prosecute them, let alone let it get to sentencing.

A second option is what we call 'civil contempt'. This does not require the Department of Justice because it requires no due process, but it is basically the equivalent of setting bail: saying that the person who violated the subpoena must be jailed and/or fined until they agree to appear, at which point the money is returned and the person is freed. This has the drawback that the president can pardon people who are sitting in jail due to civil contempt.

A third option is what is called 'inherent contempt'. This is the power that allows our government's checks and balances to work by allowing Congress itself to jail someone for failing to answer Congress' summons or requests for information, utilizing the House's Sergeant-at-Arms (the guy with the club kinda like a bailiff) to physically detain the person. This power has not been used since 1935, as before now, the previous two options worked as intended. As such, Congress has turned its tiny jail in the House of Representatives into a study room. They would have to rebuild a jail and then go through the Judiciary branch to figure out what to do when the person defying Congress is a member of the Executive branch.

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    I've downvoted the answer because nowhere in here is the simple fact stated that subpeonas are subject to judicial review and people are perfectly within their rights to fight them in court, which nearly all of the people subpoenaed by Congress are actually in the process of doing.
    – Joe
    Commented Nov 8, 2019 at 18:23
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    @Joe - fair point, however, the question is about defying a subpeona, which presumes that the subpoena has not been judicially challenged, or that a judge lets the subpoena stand. I'd be interested in your recitation of "nearly all" have filed judicial challenges to subpoenas. I'm only aware of a few.
    – BobE
    Commented Nov 8, 2019 at 18:51
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    @BobE It's been publicly reported earlier that the White House has told everyone not to testify on privilege grounds. The White House Counsel is doing the challenging. People who are "defying" the subpeonas aren't just saying "Derp, don't feel like it, bye."
    – Joe
    Commented Nov 8, 2019 at 18:56
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    @Joe These are congressional subpoenas, which fall under Eastland v. United States Servicemen's Fund. oyez.org/cases/1974/73-1923
    – Carduus
    Commented Nov 8, 2019 at 19:22
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    @jamesqf There are more than enough easily-proven charges and very few actual punishments. I would argue that the bigger issue right now is that we have a lot of people in the President's inner circle that have plenty of examples of his illegal behavior but are still convinced that if they stay quiet long enough, this will all blow over. Until such a time as they feel they might actually serve time for aiding and abetting, they will continue to remain silent.
    – Carduus
    Commented Nov 11, 2019 at 13:55

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