Congress no longer has the power to compel testimony it once had -- here's why

According to a report from the Wall Street Journal's Byron Tau, Congressional investigations into criminal wrongdoing are in danger of becoming a thing of the past as witnesses increasingly game the system and partisan squabbling undermines the process.

With former Donald Trump advisor Steve Bannon balking at turning over documents and testifying under oath about the events of Jan 6th before a House select committee investigating the Capitol riot, Tau writes investigations are more about political power plays and less about seeking the truth.

According to the report, even if congressional committees are able to make the case for a criminal referral they are at the mercy of the Justice Department no matter who heads it up.

That, coupled with attorneys making unfounded claims that must then wend their way through the courts -- which could take months and even years due to the appeals process - are making recent investigations an exercise in futility for House or Senate members.

Using the Bannon case as an example, Anne Tindall, a lawyer who has worked both on Capitol Hill and in federal agencies on congressional investigations, told Tau, "The pressure here should be on the Department of Justice—at least with respect to Bannon to show that he isn't above the law, that a congressional subpoena is a lawful subpoena and the Department of Justice will ensure that he lives up to his obligations."

Writing, "The committee's efforts have exposed how powerless the modern Congress is without support from the courts or the Justice Department when witnesses or presidential administrations refuse to comply," the Journal's Tau added, "Under Democratic and Republican control alike, Capitol Hill investigators conducting probes have seen their subpoenas ignored, their requests for documents from administrations of both parties stonewalled and their lawsuits bogged down in procedural legal battles."

The report also notes that administrations have learned to play "hardball," when an investigation is being conducted by members of the opposing party.

Writing, "members of Congress have come to view these fights largely through a partisan lens, rallying to defend their party's interests rather than stick up for the institutional interests of Congress," Tau summed up the problem by explaining, "The result has been a slow erosion of congressional power as witnesses have realized that a combination of institutional paralysis and partisan gridlock would protect them from consequences."

According to Jonathan Shaub, a law professor at the University of Kentucky, the current investigation may still bear fruit -- Justice Department willing.

"The one difference now is that when Trump was the president, his Department of Justice would refuse to prosecute anyone for criminal contempt of Congress. Now Merrick Garland is the attorney general," he explained. "You might see the Justice Department begin the process."

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