Note: this article, featuring our National Security Analyst Irvin McCullough and our Legal Director Tom Devine, was originally published here.
Democrats Could Tie Paychecks to Testimony in Impeachment Inquiry
Little-used provision would deny pay to administration officials seen as stonewalling House investigators.
House Democrats are threatening to force Trump administration officials compliance with their impeachment inquiry by targeting something they hold dear: their paychecks.
Democrats have twice referenced using an obscure provision in the annual Financial Services spending bill, referred to as Section 713, that says any federal employee who prohibits or prevents, or attempts or threatens to prohibit or prevent another official from communicating with lawmakers shouldnt be paid during that time.
The process for carrying out such a threat is relatively simple. First, lawmakers request a Government Accountability Office investigation, after which the GAO would issue a legal opinion on whether administration officials have blocked certain federal employees from testifying or otherwise communicating with lawmakers or their aides.
If any wrongdoing is found, the GAO would inform the relevant agency and suggest it claw back salary paid during that time. The agency would then seek repayment from the offending federal employee if timely payment wasnt made, it could be sent to a collection agency.
The relatively unknown provision has rarely been used during its 22-year history, with at least two key exceptions.
Hardball at HUD
In 2017, a senior Department of Housing and Urban Development official felt Section 713s sting after a four-year effort spearheaded by the top Republicans on the Judiciary committees at the time, as well as the then-House Oversight and Government Reform Committee.
Republicans said HUD employees tried to silence a Chicago-based regional director whom congressional investigators wanted to interview about potential violations of federal housing law by the city of St. Paul, Minnesota.
The regional director, Maurice McGough, eventually spoke with lawmakers under threat of subpoena, but the GAO determined that Elliot Mincberg, HUDs general deputy assistant secretary for congressional and intergovernmental relations, and associate general counsel Kevin Simpson barred McGough from cooperating for 12 business days in April 2013.
As a result, in June 2017 a HUD official told Mincberg he owed $7,176 based on his equivalent hourly rate of $74.75.
Craig T. Clemmensen, a senior HUD official and onetime acting secretary, told Mincberg to pay by check or money order, though he had the right to an appeal or a potential installment plan if repayment in full would have caused financial hardship. If Mincberg refused to pay, Clemmensen wrote, the matter could be sent to credit reporting bureaus and the Treasury Department could be brought in to collect the unpaid debt.
In Simpsons case, HUDs acting deputy secretary, Janet M. Golrick, wrote in June 2017 that he wouldnt have to repay any salary due to coercion on the part of departmental higher-ups. I have determined that the Department will not take any action against you since you acted pursuant to the direction of senior leadership, Golrick wrote.
The case at HHS
In a 2004 case, the GAO found that Thomas A. Scully, then the Centers for Medicare and Medicaid Services administrator, barred the agencys chief actuary, Richard Foster, from giving lawmakers preliminary cost estimates for legislation creating the Medicare Part D prescription drug benefit.
HHS and the Justice Departments Office of Legal Counsel argued the pay prohibition was unconstitutional, writing that it could force the disclosure of privileged, classified, or deliberative information and undermine the presidents ability to supervise and control the work of subordinate officers and employees of the executive branch.
But the GAO wrote that the administration overstated the provisions threat to the presidents constitutional prerogatives and determined that HHS needed to recover payments.
Scully declined to be interviewed for this article. But he wrote in an email that he never inhibited any employees from anything during his time as CMS administrator.
Should House Democrats ask the GAO to start an investigation and issue a legal opinion, the process could take months based on the two cases timelines. The Scully decision took about six months, while the HUD decision took around three years, not counting time between the GAO decision and notices from HUD to the affected staff.
But Irvin McCullough, a national security analyst at the Government Accountability Project, expects the focus on impeachment would speed up the process.
Were at a place in terms of administrative law where these investigations usually take quite a while, and they take quite a while, in part, because they take place outside of the public spotlight, he said. Now that this impeachment inquiry is dominating the news cycle and dominating the minds of members, I can see a more expeditious turnaround from the GAO.
Tom Devine, legal director for the Government Accountability Project, added, Politically, House Democrats have everything to gain and nothing to lose to taking aggressive steps to defending the integrity of their fact-finding.
Devine also said Senate Republicans could feel pressure to back up their Democratic colleagues use of appropriations law to compel cooperation.
This would give the Republican senators an interesting option thats defending the rule of law and the system of constitutional checks and balances without taking a stand about impeaching the president, Devine said. Many senators have been wary about prejudging the facts if they are going to be jurors, but they have no excuse about defending the process of gathering the facts.
The possibility that senior Trump administration officials might not get paid for any time they spend stonewalling congressional investigators was first referenced in an Oct. 1 letter from Foreign Affairs Chairman Eliot L. Engel, Intelligence Chairman Adam B. Schiff and now-deceased Oversight and Reform Chairman Elijah E. Cummings.
A week later, on Oct. 8, Wisconsin Democratic Rep. Mark Pocan, who co-chairs the Congressional Progressive Caucus, wrote to Secretary of State Mike Pompeo, asking which administration official told the ambassador to the European Union, Gordon Sondland, not to testify before the Intelligence panel, citing Section 713 as a potential repercussion.
Lawmakers leading the impeachment inquiry have Section 713 as one of the options to force administration cooperation because more than a century ago, their predecessors were similarly frustrated with the White House.
In response to executive orders from Presidents Theodore Roosevelt and William H. Taft that sought to restrict or prevent federal employees from communicating with Congress, lawmakers added a provision to the fiscal 1913 Post Office appropriations bill that stated: The right of persons employed in the civil service of the United States, either individually or collectively, to petition Congress, or any Member thereof, or to furnish information to either House of Congress, or to any committee or member thereof, shall not be denied or interfered with.
Lawmakers inserted a similar provision in the fiscal 1972 Treasury appropriations law that applied exclusively to the Postal Service, after the postmaster general issued a directive that only the Congressional Liaison Office could communicate with Congress.
The modern application was first added to the fiscal 1998 Treasury-Postal appropriations law at the behest of House Republicans, who were frustrated by the Clinton administration and sought to keep direct lines open between agency program managers and appropriators, which historically had helped lawmakers understand what needs werent being addressed in the formal Office of Management and Budget submissions each year, said Michelle Mrdeza, a veteran House Appropriations aide.
Agencies would come to Congress and complain about [the budget request] and say, We dont have enough money to do our jobs, said Mrdeza, who was the GOP clerk for the Treasury-Postal subcommittee at the time. Thats when the executive branch came down hard on agencies and said, Stop going to Congress and complaining to them about the presidents budget and stop going to Congress and explaining the impacts of the presidents budget beyond whats in the official documents.
Mrdeza, who is now a senior consultant and director with Cornerstone Government Affairs, said the provision signals to agency officials that if they want to come to us and talk about the impacts of their budget, they can.