Are we witnessing a return of the “Star Chamber?” Democrats, already upending precedent with executive orders, non-compliance with Court decisions, worrisome legislation, talk of court-packing – just took two stunning decisions.
First, the Democrat House, which convened a lopsided “investigative” committee for extending public condemnation of criminal actions on January 6, issued subpoenas of individuals who – in the final months of 2020 – advised President Trump.
On its face, such a subpoena seems within congressional authority, but these subpoenas are transparently partisan, subvert traditional views of executive privilege – which survives office.
They also seem out of line with our Founders’ core principles. Congress’s oversight authority – for legislative purposes – is implied. Nowhere does the Constitution give Congress power to subpoena those advising a President, let alone hold them in contempt, indict, and punish.
A congressional subpoena – for “legislative” purposes – is authorized by tailored statutes and aims to check Executive Branch agencies. Within those limits, it has been upheld by courts.
As a former oversight counsel, my efforts focused on waste, fraud, and abuse, or alternatively “mis, mal, or non-feasance” in execution of laws, triggering a rare deposition subpoena. These subpoenas were usually “friendly” – allowing a “whistleblower” to speak.
Congressional subpoenas – suspect as partisan – have limits. These limits protect against abuse, preserve separation of powers, allowing advice to a president, are consistent with the assertion of executive privileges, and tend to be recognized by the courts.
When someone – like a former White House advisor and presidential confidant – is subpoenaed, then declines to comply, and is subsequently held in contempt by Congress, that is usually the end of it. Some accommodation follows, no deposition, certainly no criminal punishment.
While an intimidating criminal action against a former executive branch advisor is legal, that draconian remedy is almost never pursued – as it smacks politicizing the judicial process.
That is why no such action has been taken for half a century, back to Watergate-era recourse to the court. Dozens of contempt votes have been taken for subpoena non-compliance in 50 years.
Held in contempt by Congress have been people far more luminous than advisor Steve Bannon. Held in contempt have been Secretaries of State, Commerce, HHS, Energy, Interior, EPA, White House Counsels, members of the IRS, such as Obama’s Louis Lerner, and three Attorney Generals, including Janet Reno for non-compliance during Waco with a subpoena – we issued.
None was criminally prosecuted – or otherwise politically persecuted. None was indicted, threatened with prison, fines, or held up as a criminal.
By contrast, Mr. Bannon has been indicted, faces a double-misdemeanor charge, is cast as a criminal for unwillingness to share confidential executive communications. Does that make sense? Is that fair?
When contempt of Congress for non-compliance with a congressional subpoena was made criminal 50 years ago, the subject was an express criminal allegation against a president, buttressed by non-partisan, factual questions, nothing like this case.
Britain’s 18th Century Star Chamber proceedings began innocuously but accelerated to abuse –no attention to precedent, due process, rule of law. They criminalized non-compliance for politics.
As a leading expert notes: “The Star Chamber became emboldened to undertake further usurpation …finally summoned juries before it for verdicts disagreeable to the government, and fined and imprisoned them.” The Star Chamber abused due process for political persecution.
In Congress, as in the Star Chamber, abuse is abuse. Criminalizing advice to a president for unwillingness to share that advice is like Justice dispatching the FBI to prosecute – or persecute – parents as “domestic terrorists” for defending their children at a school board meeting.
Second, last week Congress stepped up their unjust overreach. Think “Star Chamber.” After a unanimous verdict in Wisconsin found a young man non-guilty on charges that could have put him away for life – a defendant pre-judged by Democrats – the Chairman of the House Judiciary Committee immediately pushed Justice to re-examine the verdict, in effect question the jury.
How does that happen? How does this kind of political overreach happen in America? This is not 18th Century England, an all-powerful government running Star Chambers. This is not (yet) the Communist Soviet or Chinese model, where due process is irrelevant.
The answer is citizens are being pushed from top to bottom, parents, honest jurors, to former political advisors. Misuse of power is afoot, federal coercion not consistent with our legal tradition, interpretations of law, or proportionality. This overreach must stop.
Americans cannot allow abuse of power, misuse of process, unconstitutional legislation, disregard for Supreme Court rulings, or return of the Star Chamber. Our job is to speak the truth.
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