The House Can Play Hardball, Too. It Can Arrest Giuliani.

In his letter to House leadership, the White House counsel, Pat Cipollone, drew a line in the sand: The administration will not “participate in” the impeachment proceedings in any way. The odd language of “participate in” — presidential impeachment is not meant to be a collaboration between Congress and the president — obscures the central thrust of the letter: The White House is refusing to respond to any subpoenas or other demands for information from the House.

Of course, other administrations have fought with Congress over access to information, but those fights have centered around clearly articulated objections, supported by legal reasoning, to turning over specific documents or allowing specific officials to testify. The Trump administration’s wholesale refusal to treat congressional information demands as legitimate is so different in degree as to become different in kind.

It might seem like the White House has the House of Representatives over a barrel. If the president simply refuses to engage, what can the House do? How does a chamber of Congress go about wringing information from an unwilling executive branch?

Let’s get one thing out of the way at the outset: The answer is unlikely to be found in a courtroom. That’s not to say that the House probably wouldn’t win on the merits. Most of the administration’s arguments are risible, and even many Republican judges will have trouble swallowing them. Indeed, when the George W. Bush and Barack Obama administrations raised significantly more plausible objections to congressional subpoenas, the courts sided with the House, ordering the executive to turn over the vast majority of the subpoenaed material.

But those court battles took years. Courts could expedite proceedings to an extent, but thus far they have shown themselves in no hurry to render final judgments in these disputes. And a court “victory” coming in 2021 or 2022 is no victory at all for the House — even assuming that the Trump administration would comply with a court order when it refuses to comply with a congressional one.

So what should the House do instead? Let me suggest two ways that it can play some constitutional hardball of its own, matching the White House’s aggressive tactics.

Refusal to comply with a duly authorized subpoena from Congress constitutes contempt of Congress. Contempt of Congress is a crime, and there is a mechanism for referring such cases to federal prosecutors. The problem, of course, is that federal prosecutors answer to the attorney general and, through him, to the White House, and they refuse to prosecute contempts committed by executive officials. In recent decades, congressional houses have sought a court order requiring executive officials to comply with their subpoenas, but that has all the problems described above.

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. Neither house of Congress has arrested anyone since 1935, but it was not uncommon before that point (and was blessed by the Supreme Court in 1927). Indeed, on at least two occasions, the second in 1916, a house of Congress had its sergeant arrest an executive branch official. (In that case, the Supreme Court eventually ruled against the House, not because it did not have the power to arrest for contempt, but rather because the offense — writing a nasty public letter to a House subcommittee — could not properly be understood as contempt of Congress.)

Facilities in the Capitol or one of the House office buildings can be made into a makeshift holding cell if necessary. Of course, arrestees will ask the courts to set them free, but the case should be relatively open-and-shut against them: They will have committed a contempt in refusing to turn over subpoenaed materials, and the House has the power to hold contemnors. Moreover, time would work in the House’s favor here: The unpleasantness of being in custody while the issue was being litigated might make some contemnors decide to cooperate.

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. Moreover, having arrest as an option of last resort might also make less extreme options more palatable.

One of those less extreme options would be using the power of the purse. The government is currently funded through Nov. 21. There is nothing stopping the House from putting a provision in the next funding bill that zeros out funding for the White House Counsel’s Office. House leadership could announce that, so long as the counsel’s office is producing bad legal argumentation designed for no purpose other than protecting the president from constitutional checks, the American people should not have to pay for it.

Of course, the Senate could try to strip that rider, or President Trump could veto the bill, but if the House held firm, the administration’s choice would be to mollify the House by turning over subpoenaed information, accept the defunding of the counsel’s office, or accept the partial government shutdown that would come with failure to pass the appropriations bill.

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. But President Trump is deeply unpopular, and the public supports impeachment. If necessary, the House should be willing to have these fights.

Snap Detailed Facebook’s Aggressive Tactics in ‘Project Voldemort’ Dossier

Antitrust investigation gives competitors chance to air complaints about Facebook’s hardball tactics

Facebook Inc. FB -1.93% for most of the past decade was Silicon Valley’s 800-pound gorilla, squashing rivals, ripping off their best ideas or buying them outright as it cemented its dominance of social media.

Now the knives are coming out.

A number of Facebook’s current and former competitors are talking about the company’s hardball tactics to investigators from the Federal Trade Commission, as part of its broader antitrust investigation into the social-media giant’s business practices, according to people familiar with the matter.

One of them is Snap Inc., SNAP +0.76% where the legal team for years kept a dossier of ways that the company felt Facebook was trying to thwart competition from the buzzy upstart, according to some of those people. The title of the documents: Project Voldemort.

Snap CEO Evan Spiegel in Half Moon Bay, Calif., in February. PHOTO: DAVID PAUL MORRIS/BLOOMBERG NEWS

The files in Voldemort, a reference to the fictional antagonist in the popular Harry Potter children’s books, chronicled Facebook moves that Snap officials believed were a threat to undermine Snap’s business, including discouraging popular account holders, or influencers, from referencing Snap on their Instagram accounts, according to people familiar with the project. Executives also suspected Instagram was preventing Snap content from trending on its app, the people said.

In recent months, the FTC has made contact with dozens of tech executives and app developers, people familiar with the agency’s outreach said. The agency’s investigators are also talking to executives from startups that became defunct after losing access to Facebook’s platform in addition to founders who sold their companies to Facebook, according to some of those people.

Facebook’s Mark Zuckerberg in Washington on Sept. 19. PHOTO: ANDREW HARRER/BLOOMBERG NEWS

The discussions have focused on the aggressive growth tactics that propelled Facebook from a social network for college students 15 years ago to a collection of services now used by more than one in four people in the world every day.

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The talks are a sign that the FTC may be trying to put together “a picture of what might be a pattern of behavior to prevent competition to the core Facebook business,” said Gene Kimmelman, a senior adviser at Public Knowledge, a consumer group that focuses on tech issues who was a Justice Department antitrust official in the Obama administration. Discussions with rivals are typical in antitrust probes, said Mr. Kimmelman, who isn’t involved in the case.

Inside Facebook, senior leaders are concerned about the possibility of rivals divulging damaging information to federal officials and have discussed ways to improve the company’s relationships around Silicon Valley, according to a person familiar with the discussions.

Facebook has previously said that its acquisitions fuel innovation, rather than stifle it, and a spokeswoman said the company’s addition of new services and features over the years gives consumers more choices.

“This is competition at work and one of the longtime hallmarks of the tech sector,” she said. “Businesses continually build and iterate on concepts and ideas in the marketplace—making them better or taking them in different directions. This is good for consumers.”

The FTC investigation is one of several antitrust probes into Facebook and major tech giants in the U.S. and around the world. Earlier this month, the House Judiciary Committee requested Facebook executive communications about the company’s decisions to buy the photo- and video-sharing network Instagram in 2012 and the messaging app WhatsApp in 2014. Lawmakers have contacted several of those companies’ rivals as part of that probe, The Wall Street Journal reported previously.

The House panel can’t take enforcement actions against the companies. The FTC, however, can.

Colleges Challenge a Common Protection in Sexual Assault Lawsuits: Anonymity

The former college student said she had been raped three times as an undergraduate at Florida A&M University, twice by students and once by an acquaintance who was on campus regularly.

She withdrew from the university and filed suit, saying that campus officials did not do enough to investigate the claims and protect her from being attacked again and again. As a precaution, she identified herself in public court papers only as S.B.

Her school fired back three times with a demand for the court: Reveal her full name or toss out the case.

For years, students have filed sexual assault complaints under pseudonyms, which allow them to seek justice without shame or fear of being targeted. Universities have generally accepted the practice.

But in two recent lawsuits — S.B.’s case against Florida A&M University and a suit by nine women against Dartmouth College — the schools have demanded that students publicly reveal their identities, going against longstanding legal practice intended to protect plaintiffs in sensitive disputes.

Experts on sexual assault cases say that these demands amount to a newly aggressive stance by universities that face potentially damaging lawsuits, and that they run counter to the spirit of federal civil rights policies. The identities of the women in both cases are known to the university lawyers, but not to the public.

“What you’re seeing in this particular case is real hardball,” said Andrew Miltenberg, a lawyer who typically represents men accused of sexual assault. “And it’s still not the way most lawyers or schools handle it. They’re a little bit more gracious about protecting someone who was their student.”

On Wednesday, S.B.’s lawyer sent a letter to more than 40 state legislators objecting to the university’s tactics and asking them to investigate the matter.

Kennedy Retires — It’s On!

Whoever accepts President Trump’s call for the nomination will be one of the bravest men or women in public life, because he or she is going to be attacked with unrelenting fury from the Left.

.. For a lot of white evangelicals, this moment was worth every migrant child forever traumatized, every refugee family denied safety, every sexual assault victim betrayed, every white nationalist emboldened, every lie told. These are the ends that justified the means.

.. Bears repeating: Had Clinton won, she’d likely have replaced Scalia, Kennedy, and eventually Ginsburg (85) and Breyer (79). -That’d make six relatively young liberal justices and a lasting majority. -Now, it’ll be five conservatives, all 70 and under.

.. (Chuck Schumer quite understandably called on McConnell to follow the same policy he did to deny Merrick Garland a hearing in an election year. McConnell, a hardballer if ever there was one, quite understandably didn’t take this seriously.)

.. If Trump is re-elected in 2020, and he still has a Republican Senate, there is a decent chance that he could leave office with a 7-2 conservative majority.

.. First, the hearings could well be a catalyst for real violence

..  Let’s revisit this January piece from National Review’s Michael Brendan Dougherty:

I’ve started to think that Supreme Court Justice Anthony Kennedy may be the one man preventing the United States from political breakdown.

.. both sides have reason to pity themselves as the losers of the [political] system. Partisan Democrats, with some justification, feel that the constitutional system favors dirt (geography), so it rewards Republicans with too many senators and even electoral votes than they would otherwise win. Many partisan Republicans also feel that their votes go for naught, and that elites in the media, donor class, and social scene of Washington, D.C., constantly make Republicans under-deliver on their promises.

.. Kennedy deals out victories and defeats to each side — giving slightly more defeats to social conservatives. In effect, he constrains what each side can do to the other. His mercurial jurisprudence replicates and even gives the savor of legitimacy to a closely divided country.

.. So I’ve started to worry that if the Court soon consolidates to the left or the right, partisans on the losing end of that bargain will swiftly lose faith in democracy itself. A non-swinging Supreme Court would give the impression of super-charging the ability of one party to act, and restraining its competitor. A consolidated Supreme Court could open up whole new fields of legislation for one side to act against the other. At that point, what would happen?

.. Overturning Roe would only mean that regulating abortion returns to the states. If you live in a socially liberal state now, you don’t have anything to worry about. That’s not going to make you happy, but it’s not Armageddon. And there is no realistic chance that Obergefell will be overturned. But even if it were, again, that only means that the gay marriage question devolves to the states. Gay marriage is overwhelmingly popular. There might be a handful of Southern states (plus Utah) that might vote against it, in a popular referendum. But even they would fall eventually. Same-sex marriage isn’t an issue for younger voters, who support it by a wide margin.

.. Kennedy retiring is where the Roy Moore own goal really, really hurts. We now only have 51 votes, but two of those are Murkowski and Susan Collins, who will likely be reluctant to support a 5th pro-life justice. Mitch will have to put the screws on to get to 50.

.. However, had Hillary Clinton won, conservatives would be in the same miserable position today as liberals are.

It is not at all healthy for the republic that the Supreme Court matters so much. But we are where we are.