Arresting the Attorney General

By JOEL D. JOSEPH

The House of Representatives should direct the Sergeant at Arms to arrest Attorney General William Barr for failing to comply with a subpoena to produce the complete, unredacted Mueller Report. The US Supreme Court ruled in 1927 that either branch of Congress has the power to arrest a witness who fails to appear pursuant to a subpoena.

The Teapot Dome incident was considered America’s biggest political scandal up until Watergate. The Mueller Report has revealed so many obstructions of justice by President Trump that makes Watergate look like a petty crime. Teapot Dome was the name of a Wyoming oilfield on federal property. Harry M. Daugherty became the attorney general of the US on March 5, 1921, and held that office until March 28, 1924, when he resigned under the cloud of scandal. Daugherty was accused of malfeasance and nonfeasance in the Department of Justice when he failed to investigate and prosecute the Teapot Dome conspirators.

On April 14, 1922, the Wall Street Journal broke a sensational story about a secret bribery scheme involving oil company kickbacks to government officials in exchange for the granting of exceptionally favorable oil leases via single-bid contracts. The next day Wyoming Democratic Senator John B. Kendrick introduced a resolution that set in motion the Senate investigation that would ultimately expose the Teapot Dome scandal. The investigation exposed an illegal financial relationship between Fall, Warren Harding’s secretary of the interior, and a subsidiary of the Sinclair Consolidated Oil Corporation.

Daugherty was accused by opponents of the Harding Administration as having been complicit in the Teapot Dome affair by failing to intervene after he had learned of the malfeasance. A pair of special prosecutors — Republican Assistant Attorney General Owen J. Roberts and former Democratic Senator Atlee Pomerene — were appointed to conduct a more thorough investigation of the matter.

In the course of the Senate investigation, the committee issued a subpoena, whicht was served on Mally S. Daugherty – the brother of Harry M. Daugherty and president of the Midland National Bank of Washington Court House, Ohio. The subpoena commanded Daugherty to appear before the committee for the purpose of giving testimony bearing on the subject under investigation, and to bring with him the “deposit ledgers of the Midland National Bank since November 1, 1920.” Daugherty failed to appear before the Senate committee.

The committee issued and served a second subpoena on Mr. Daugherty, commanding him to appear before it. Again, the witness failed to appear, and no excuse was offered by him for either failure.

The Senate authorized the sergeant at arms to arrest Mr. Daugherty. The deputy, proceeding under the warrant, took the witness into custody in Cincinnati, Ohio, with the purpose of bringing him before to the Senate as commanded. A federal court in Cincinnati would not enforce the subpoena and the case went directly to the Supreme Court.

The US Supreme Court unanimously ruled in 1927, “We are of opinion that the power of inquiry — with process to enforce it — is an essential and appropriate auxiliary to the legislative function.”

The court added, “We are further of opinion that the provisions are not of doubtful meaning, but, as was held by this Court in the cases we have reviewed, are intended to be effectively exercised, and therefore to carry with them such auxiliary powers as are necessary and appropriate to that end … A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change, and where the legislative body does not itself possess the requisite information — which not infrequently is true — recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete, so some means of compulsion are essential to obtain what is needed.”

Arresting the presiding attorney general is more difficult that arresting a private citizen, but it can be accomplished. The House of Representatives should hire some of the best and most experienced Capitol Police officers to assist the Sergeant at Arms to conduct an arrest. The arrest cannot be accomplished at the Department of Justice because security there could prevent entry by House personnel. However, William Barr could be arrested at his home, or while he is commuting to work, or whereever he can be found outside of the Department of Justice. This country cannot allow the attorney general to flout the law: No man is above the law. Not even Mr. Barr. He is not a King, he is the acting court jester to the Throne of Donald J. Trump.

Joel D. Joseph, author of “Black Mondays: Worst Decisions of the Supreme Court” and former attorney for the Special Prosecutor Project, is chairman of the Made in the USA Foundation, La Jolla, Calif. Phone (310) MADE-USA.

From The Progressive Populist, June 15, 2019

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