U.S. Attorney General Merrick Garland testifies before the House Judiciary Committee at the Rayburn House Office Building on Capitol Hill in Washington, DC, on June 4, 2024. Former U.S. President Donald Trump was indicted and subsequently convicted in New York on false accusations by those behind the ministry. Lies and “conspiracy theories” are undermining the rule of law.
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It’s easy to understand why people find government and laws difficult to understand. The truth is: governments and laws are often a challenge to understand or explain.
Take last week’s news, for example, when the House of Representatives voted to hold Attorney General Merrick Garland in contempt of Congress. Garland is the third attorney general since the founding of the American republic in the 1780s to be criminally detained for contempt of Congress.
This seems like a big deal. On the other hand, most news reports over the past few days have dismissed the idea of Garland being sent to jail or even indicted. Therefore, the net effect of his contempt conviction is likely to be zero.
The Justice Department has informed House Speaker Mike Johnson that it will not prosecute Garland. Johnson has responded that the House will seek to enforce the subpoena in court without cooperation from the Justice Department.
Beyond that, the House will likely spend much of the rest of the year conducting impeachment proceedings. But the only official impeached in this Congress was Homeland Security Secretary Alejandro Mayorkas, whose case was summarily dismissed in the Senate.
Therefore, this shows that “contempt of Congress” is not a big issue.
But earlier that same month we saw former President Donald Trump ally Steve Bannon exhaust his appeals and be ordered to serve four months in prison, no later than 7 Starting on the 1st of the month.
Both received much shorter sentences than they could have faced. Despite this, they are still serving time in prison. Both of their long-running court cases began as contempt of Congress.
So, at first glance, the average citizen is likely to be confused. Or they may well be susceptible to the suggestion that the former president and all his minions are somehow the victims of an unprecedented witch hunt. These claims often originate from Trump himself, who sees it all as a “weaponization” of the government and the laws against him.
Solving all these problems requires time and information. Both require probably more than most of us have to offer. This, in turn, makes it easier for us to be sold a version of the story that we like to hear from politicians or the media.
Who looks down on whom?
Contempt proceedings are only the final stage in enforcing Congress’s power to seek and compel evidence in conducting investigations. Conflicts can arise when Congress exercises its oversight authority to investigate other branches of government.
If Congress wants to see something, some agency in the executive branch may object or be directed by the White House to object. This raises a series of questions: Are specific witnesses protected or specific documents privileged under the constitutional separation of powers?
Often, negotiation can resolve these issues. Difficulties may arise, however, when the subject of a subpoena defies not only the subpoena but also the legality of the authority issuing the subpoena. The situation only gets worse when the target of the subpoena refuses to negotiate or seek any settlement.
That was the case with Bannon and Navarro. Neither man was willing to acknowledge the authority of the House select committee investigating the Jan. 6 attack on the Capitol. They argue it has no authority because congressional leaders on the Republican side have given it no support.
They were prosecuted beginning in 2021, tried in federal court, found guilty by a jury, and sentenced by the presiding judge. A series of appeals over the years delayed their prison dates. Bannon’s order to revoke bail and advance his jail date is still under review.
Garland was charged with contempt of court for not turning over to congressional committees requested tapes of Biden’s interview with special counsel Robert Hull.
Garland appointed Hull to investigate Biden’s withholding of classified documents while he was vice president. Hoole said it would be difficult to convict of knowingly possessing the documents because Biden would appear to a jury like a sympathetic, forgetful old man.
The House wants to hear the interview. Garland gave them a transcript but said the White House asserted executive privilege over the tape.
Frustrated by this, the House now took the next step of scorning him. Garland’s Justice Department has announced it will not prosecute him because of the precedent set by others in his position.
President Donald Trump delivers a statement regarding the census with Commerce Secretary Wilbur Ross, left, and Attorney General William Barr in the Rose Garden of the White House on July 11, 2019 in Washington, DC.
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That precedent was reinforced in 2020 when Trump’s attorney general, William Barr, was held in contempt of court by Congress. House Democrats, who control the House majority, continue to clash.
Among other things, Democrats want documents related to a proposed citizenship question the Trump administration is trying to add to the 2020 census form. The Commerce Department under Secretary Wilbur Ross rejected the Democratic proposal, a decision that Barr also supported. As a result, the House found both Ross and Barr in contempt of court in July 2019.
But Barr’s Justice Department declined to prosecute him, citing “the Department’s longstanding position … that we will not prosecute officials for contempt of Congress by refusing to provide information that the president asserts is executive privilege.”
At the time, House Democrats sought to enforce their contempt claims in federal court — just as House Republicans under Johnson want to do now. Democrats’ efforts were unsuccessful.
Barr is the second attorney general to be charged with contempt of court. The first is Eric Holder, who was appointed by President Obama to head the Justice Department since 2009 and led it for six years. Like Barr and Garland, Holder clashed with opposition leaders when the opposition had just taken control of the House and was eager to take on the president.
Holder refuses to subpoena documents from Obama White House exercising executive privilege. That led to him being charged with contempt of court, just as Barr and Garland have since been. Holder’s Justice Department cited department policy and precedent in declining to prosecute him, as it did with Barr and Garland. The House initiated impeachment proceedings against Holder, but they were dropped following his resignation in September 2014.
Attorney General Eric Holder speaks to reporters after meeting with House Oversight and Government Reform Committee Chairman Darrell Issa at the U.S. Capitol in Washington, DC, June 19, 2012. Issa and Holder appeared not to move forward with a vote over the release of the documents and committee plans to hold Holder in contempt of Congress.
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Fine point or turning point?
All of the issues discussed here seem to involve relatively minor points of law that the average citizen need not worry about. Without dramatic confrontations (which are almost always avoidable), these differences and complexities have the potential to disappear.
At that point, we might be forgiven for turning the page or changing the channel.
But when one or the other side asserts its position or insists on solving an issue, the public’s lack of information and understanding becomes a problem.
Because we often know so little about the specific processes of government or law, it’s easier to sell us a version of the story that we like to hear from politicians or the media.
The best shield against this deception is knowledge. This starts with basic civic education and beyond that requires exposure to accurate, verifiable information. Whether the media of our time can meet this need is an open and painful question.
If citizens had more information about how ballots were cast, counted, and certified, would it be easier to convince tens of millions of people that the 2020 election was somehow rigged or stolen?
A 2020 Brookings Institution study questions whether U.S. schools are still teaching the basics of civics the way they once did. While nearly every state requires students to take at least one civics course before graduating from high school, only a few require it for more than one semester.
The study points to major changes in public school curriculum after the “Sputnik moment” of 1957 made Americans worried about falling behind the Soviet Union in the space race. The Brookings Institution also cited a 2018 study that found that “while reading and math scores have improved in recent years, there has been no corresponding increase in eighth-grade civics knowledge.”
As a result, governments and laws can be complex and sometimes seemingly contradictory. What else is new?
We have become accustomed to ignoring issues such as the level of information and understanding of citizens and voters. If this is a problem for democracies, it is one we have been facing for nearly 250 years. So how bad is the situation?
We may be about to find out.
During the prosperous “American Era” after World War II, generations of Americans were engaged in politics, many of them affiliated with one of the two major political parties. But overall, their genuine differences and partisanship did not supersede their sense of being stakeholders in something larger.
Some might call it a greater America. Others might call it democracy. Some still think both are possible.
But is this belief still strong enough to supersede our differences?
