Subpoena Fight

The House Oversight Committee has subpoenaed Hunter Biden to be deposed in a closed-door hearing. Biden has responded, through his lawyer, that he’ll be there, but only if the hearing is public. Supposedly, this sets up a subpoena fight.

It needn’t, and Oversight Chairman James Comer (R, KY), has said so, although he has offered, unnecessarily IMNSHO, a compromise to have Biden testify in an open Oversight hearing after he’s sat for the close-door deposition.

If the impasse is not broken, Congress can move to enforce its subpoena in several ways. Republicans can hold Biden in contempt or file a civil suit to compel him to testify. These options require the Department of Justice or the courts to enforce, respectively. But, if Republicans want Hunter Biden’s testimony soon, investigators may have to acquiesce to his lawyer’s demands for a public hearing or awaken a long dormant Congressional power to compel the younger Biden to appear.

The correct move is a) and d) above. If Biden is a no-show, he should be held in criminal contempt and referred to DoJ for prosecution (even though AG Merrick Garland is unlikely to do so). In parallel, the House should exercise its authority to go get Biden and compel his (closed-door) testimony.

That fourth option is the House’s and Senate’s—”the Legislature’s”—Inherent Contempt Power. This power permits each house to arrest and detain an individual who is found to be obstructing Constitutionally defined duties and responsibilities of the legislature. The latest use of this power to compel testimony was the Senate’s 1934 Jurney v MacCracken case. William MacCracken at the time was refusing to comply with a Senate subpoena, the Senate sent its Sergeant at Arms to arrest him and present him before the Senate for a contempt trial, and on conviction, he was held in jail in the Senate’s custody (not DoJ’s or any other police facility’s) until he cleared his contempt by testifying as subpoenaed. Jurney was the Supreme Court upholding the Legislature’s—the Senate’s in that case—authority to exactly what it did.

So it should be with Biden in the House. The matter could move apace, with the long pole in this tent simply being finding Biden in the first place and transporting him to the House floor for trial.

Regarding Oversight’s subpoena in particular, there’s nothing about which to fight, or negotiate, or even discuss. The subpoena has been issued for a closed door deposition on a particular date; the only thing for Hunter Biden to do is to appear for the deposition on the appointed date. Or suffer the ignominy of arrest, House trial for contempt, and then jail in House custody until he testifies.

Full stop.

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