Pompeo, Engel poised for battle in contempt proceedings

Tensions between Rep. Eliot Engel (D-N.Y.) and Secretary of State Mike Pompeo are reaching new heights following a notice by the House Foreign Affairs Committee chairman to begin contempt proceedings against the nation’s top diplomat.

But Engel is in a race against time with his fight to assert congressional oversight authority. The New York Democrat will leave Congress in early January after losing his primary to a progressive challenger.

Moving forward on contempt proceedings is seen more as a symbolic protest against Pompeo’s actions, with little likelihood of them leading to punitive measures.

House Democrats are growing increasingly frustrated with Pompeo’s persistent rejection of their oversight requests while he caters to those of Senate Republicans.

“Chairman Engel has probably felt backed up against the wall where he has to do something to continue the precedent that checks and balances do exist,” said Casey Burgat, legislative affairs program director at George Washington University.

“Because maybe the alternative is more dangerous … not taking action on the part of Congress sets a different precedent of just letting these things go.”

The contempt proceedings are the latest salvo in an ongoing but escalating battle between Engel and Pompeo, punctuated by personal attacks in their official correspondence: Engel has disparaged Pompeo’s record as secretary compared to his predecessors and the secretary has responded by drawing attention to the chairman’s primary defeat.

“There’s every evidence that Secretary Pompeo holds Congress in contempt in the ordinary sense of the word,” said David Super, a professor at Georgetown University Law Center.

“In past administrations, this sort of thing was always worked out, whether it was a Democratic Congress in a Republican administration or the other way around. The fact that Secretary Pompeo seems to be making no effort to resolve this suggests he wants this confrontation.”

Engel announced the contempt proceedings last week, following Pompeo’s refusal to comply with a subpoena to hand over tens of thousands of documents that the State Department has provided to Republican-controlled Senate committees related to their investigation of former Vice President Joe Biden’s diplomacy in Ukraine during the Obama administration.

Included in the contempt proceedings is Pompeo’s refusal to comply with a subpoena from September 2019 calling for records related to the House’s impeachment investigation of President Trump.

Burgat, of George Washington University, said Engel’s inclusion of the September 2019 subpoena helps support the chairman’s argument that Pomepo is engaged in an “ongoing refusal” to comply with committee requests.

“If and when it’s written, the contempt resolution will likely list all instances of Secretary Pompeo’s noncompliance in an attempt to make clear that the secretary has been ignoring the committee’s subpoenas on a host of issues and causes which has forced the chairman’s hand into beginning contempt proceedings,” Burgat added.

The Foreign Affairs Committee has not indicated when it plans to move forward with any next steps in the contempt proceedings.

The State Department has rejected Engel’s argument that it is noncompliant with the committee’s requests, and has pushed back on allegations of politicization, saying Senate Democrats have the same access to documents it provided to the Republican-controlled committees. It further argues that the department is not obligated to produce documents to the House panel because its stated investigation is not the same as Senate Republicans.

Engel has yet to release any details about the contents of a contempt resolution for Pompeo. He has at least three options for proceedings, each with their own set of drawbacks and a process that is likely to carry on for years — well beyond when Engel will leave Congress.

One potential avenue includes a resolution of inherent contempt that would fault the secretary for ignoring Congress’s legal right to investigate. If approved in a House floor vote, the resolution could compel the sergeant at arms to arrest and imprison Pompeo until he is compliant with Engel’s request.

But the drastic approach is considered a “long-dormant” measure that is “cumbersome” and “inefficient,” according to the Congressional Research Service, and hasn’t been used since the 1930s. The measure, if approved, would only be in effect until the end of the congressional session in early January.

Another option is a procedure of criminal contempt — the same measure that was brought against former President Obama’s attorney general, Eric Holder, by the Republican-controlled House in 2012 and only settled in 2019.

Criminal contempt proceedings can end in a fine of between $100 and $1,000 or up to a year in prison, according to U.S. law.

The approach was taken by House Democrats in July 2019 against Attorney General William Barr and Commerce Secretary Wilbur Ross for refusing subpoenas to hand over documents related to the census. The Justice Department made no moves to prosecute, so the House Oversight and Reform Committee filed a lawsuit for documents related to the census. The case is still tied up in litigation.

A third contempt proceeding is a measure of civil enforcement. House Democrats voted last year to hold Barr and now-former White House counsel Don McGahn in civil contempt and filed a lawsuit to compel the handover of documents and testimony related to former special counsel Robert Mueller’s Russia investigation.

The Justice Department negotiated with Congress to provide some materials related to the report but a lawsuit against McGahn calling for his testimony has been in the courts for more than a year. The most recent ruling dealt a blow to Democrats, with the majority of a three-judge panel on the D.C. Circuit Court of Appeals saying Congress did not have the standing to compel McGahn’s testimony.

The ruling, which can be appealed to the full bench of the D.C. Circuit, underscores the tough road ahead for however Engel decides to proceed against Pompeo.

“The majority of the panel suggests that the Congress does not have inherent power to bring basically this kind of action and that no statute is sufficiently clear to authorize it,” said Super, of Georgetown.

“If [the] decision in the McGahn case stands, then I think the Foreign Affairs committee will have a difficult time pursuing Secretary Pompeo effectively.”