President Trump’s impeachment has thrown up fiendish separation of powers questions. E.g., suppose the Senate makes a complete joke of its “sole power” to try impeachments: is the House of Representatives a proper party to complain of the Senate’s dereliction, in federal court? On some theories, the House has a legal interest—“standing to sue,” in legal parlance—in protecting its sole power to impeach. If Senator McConnell and the Chief Justice turn the proceeding into a charade, that may be a cognizable injury to the House, suitable for expedited Supreme Court adjudication. See Pelosi v. Roberts, ___ S.Ct. ___ (2020).
Even if you don’t want to recognize that kind of institutional injury, you may still want to grant the House (or the Senate) legal standing to enforce its subpoenas against non-compliant executive officers. Those pending lawsuits have thrown the federal courts into very nasty disputes between the Congress and the Executive, with both sides claiming constitutionally grounded powers to have the other pound sand.
Such internecine separation-of-powers battles aren’t good for the country. Happily, historical practice, constitutional precepts, and institutional incentives provide a harmonious solution.
It is undisputed that each House of Congress has inherent powers to enforce its own subpoenas. Until very recently, however, it did not occur to anyone that courts should be the forum for that enterprise. (A power that depends on another branch’s active assistance isn’t all that inherent.) Instead, Congress itself detained the offenders. Contrary to lore, there was never a designated prison underneath the Capitol. Rather, the House Sergeant-at-Arms detained the offenders at some available congressional office—or, failing that, at a local hotel, with a guard at the door.
Nowadays, the Capitol and all adjacent buildings are hopelessly overcrowded. As Speaker Pelosi has rightly noted, detention in those quarters might prompt Eighth Amendment problems. Thus, the obvious solution is sequestration at the nearby Trump Hotel. Most of the congressionally subpoenaed individuals already practically live there, except they rarely pay up. Detain them there at congressional command: Congress will owe the bill. The detainees cannot conceivably complain of cruel and unusual nourishment, or some such unconstitutional conduct. The House will get its way, by finally imprisoning someone. The federal courts will get their way by getting out of the picture (as they dearly wish and ought to be). And for the Executive, more congressional subpoenas will mean higher revenues. Each branch of government would stay in its lane, just as the Founders intended.
The fact that Mr. Trump’s lawyers are fighting the House subpoenas tooth and nail—instead of conceding the power and urging its constitutionally envisioned and historically validated enforcement—suggests that the President really is surrounded by dopes and babies. His lawyers should recognize, even if his generals do not, that the separation of powers is transactional, just like NATO. He should make money out of it.