In a series of tweets Saturday morning, Joe Biden attempted to explain why he should not have to comply with a subpoena from the Senate in the upcoming impeachment trial. He refers to a comment he made the day previously, in a Des Moines Register interview, about how he would not comply with a subpoena if served one. He argued that involving him in the trial would shift the focus from President Trump to him, later tweeting that “this impeachment is about Trump’s conduct, not mine”.
The allegations against Joe Biden include that his son Hunter Biden inappropriately engaged in Ukrainian affairs, with the claims of abuse of power, nepotism and conflict of interest arising from Hunter Biden’s appointment onto Burisma’s, a Ukranian energy company, board during President Obama’s tenure. Hunter Biden, who is argued to have had no past experiences that would qualify him for the job, is said to have only gotten the job because his father was the Vice President of the United States and heavily involved in shaping American-Ukrainian energy policy.
White House officials and many involved in President Trump’s administration have ignored congressional subpoena requests. While impeachment is not a criminal process, the subpoenas are still legally binding and can lead to contempt of congress proceedings, which can lead to criminal punishment. However, the last time Congress arrested and detained a witness was in 1935. Since then, the process has been far less aggressive, with the contempt cases often being referred to the Department of Justice. It should be noted that efforts to punish for non-compliance with a subpoena through criminal contempt will likely prove unavailing “in many, if not most, circumstances.”
The last time this legal avenue was used was last summer; Attorney General William Barr and Secretary of Commerce Wilbur Ross were each held in in contempt of congress on July 17, 2019 by the House of Representatives for refusing to comply with subpoenas issued by the House Committee on Oversight and Reform. The Justice Department in turn refused to prosecute both, saying the case was lacking. The only other option Congress has is to take the fight to the federal courts, where a civil judgment could order a witness to comply. Former White House counsel Don McGahn was the most recent official to be ordered to comply with a subpoena request; a federal judge issued the order in a November 25, 2019 ruling.
Joe Biden ended his string of tweets on the matter by noting that he has “always complied with a lawful order and in my eight years as VP, my office-unlike Donald Trump and Mike Pence-cooperated with legitimate congressional oversight requests”.
Mitch McConnell Has Yet to Confirm Witnesses in the Impeachment Hearing but Guarantees a Swift Trial
Witnesses should respect Congressional investigations, since conducting investigations is an essential part of the legislature. The Supreme Court granted Congress the broad power to investigate in McGrain v. Daugherty, explaining that “a legislative body cannot legislate wisely or effectively in the absence of information”. This power is undoubtedly useless, if witnesses completely ignore subpoenas.