Law Professor's Advice to House Democrats: Arrest Rudy Giuliani

"The House arresting someone would be explosive and clearly should not be undertaken lightly. But the very explosiveness of it would be a way for the House to signal the seriousness of White House obstructionism to the public."

Eoin Higgins, staff writer

Thursday, October 10, 2019

Common Dreams

https://www.commondreams.org/news/2019/10/10/law-professors-advice-house-democrats-arrest-rudy-giuliani

Faced with an intransigent White House unwilling to cooperate with an impeachment inquiry into President Donald Trump's pressuring of the Ukrainian government to investigate his political rival former Vice President Joe Biden, the House should take aggressive action including arresting Rudy Giuliani, a law professor argues in a column for The New York Times Thursday. 

"The answer is unlikely to be found in a courtroom," writes law professor Josh Chafetz. 

The White House has repeatedly refused to answer subpoenas and on Tuesday afternoon, as Common Dreams reported, announced in an eight page letter that the administration will flatly refuse to cooperate in the inquiry, a move that could set up a constitutional crisis.

"There is no legal basis for Trump's position," NBC analyst Katie Phang said on Twitter Tuesday. "Hard stop."

House Democrats need to think outside the box, Chafetz argues.

"The House should instead put back on the table the option of using its sergeant-at-arms to arrest contemnors—as the person in violation of the order is called—especially when an individual, like Rudy Giuliani, is not an executive branch official," Chaftez writes.

Chafetz acknowledges that the move was extreme, but said that the net benefits of taking things to that level would outweigh the possible negatives of such an action and allow for the House to open the door to other punitive actions seen as less radical.

"The House arresting someone would be explosive and clearly should not be undertaken lightly," says Chafetz. "But the very explosiveness of it would be a way for the House to signal the seriousness of White House obstructionism to the public."

On Thursday, Common Dreams reported that two associates of Giuliani's were arrested for campaign finance violations due to their contributions to Trump in 2016 and 2018.

A number of legal observers endorsed the theoretical framing of Chafetz's piece while urging readers to manage expectations. 

"An aggressive strategy might work in Congress's favor, or it might backfire," tweeted George Mason University political science professor Jennifer N. Victory. "We cannot underestimate the importance of public reaction for providing legitimacy to government actions when we're in uncharted water."

University of Denver professor Seth Masket said he saw the logic in that but inaction could prove more costly. 

"Agreed that this is a risky strategy, but the idea of doing nothing, and letting congressional subpoenas become voluntary, is likely far more dangerous in the long run," said Masket. 

In his conclusion, Chafetz recognizes the pitfalls of an aggressive approach, but posits that taking such an action is necessary given the administration's behavior.

"In the end, whether the House wins that fight, like whether it wins a fight over arresting a contemnor, would be a function of which side best convinces the public," writes Chafetz. "But President Trump is deeply unpopular, and the public supports impeachment. If necessary, the House should be willing to have these fights."