Noem Refused to Answer Congress. Here’s Why Nothing Will Happen.

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Three times, Representative Jamie Raskin put the same question to Homeland Security Secretary Kristi Noem: “Based on what you know today, Madam Secretary, were Renee Good and Alex Pretti domestic terrorists?” Three times, Noem cited ongoing investigations.

Before Raskin’s turn at the March 3, 2026 Senate Judiciary Committee hearing, Senator Amy Klobuchar of Minnesota had asked Noem whether she wanted to say anything to the parents of Alex Pretti. They were, in Klobuchar’s words, “distraught by the way their son was portrayed in the aftermath of his death.” Noem offered condolences. Senator Peter Welch of Vermont asked if she wanted to apologize. Noem pledged to “work hard to give everybody factual information.”

Then Raskin, the ranking Democrat on the House Judiciary Committee, pressed the sharpest version of the question. He got the same wall.

Two days later, Noem was gone. Reassigned to a newly created diplomatic post in what reports described as a personnel shuffle, replaced at DHS by Senator Markwayne Mullin of Oklahoma. The questions she refused to answer at those hearings remain unanswered. No prosecutor is pursuing them. No court has ordered her to respond. The controversy, which consumed two full days of congressional testimony and generated weeks of cable news coverage, produced exactly nothing in the way of legal accountability.

This was not bad luck. It was the system working as it currently works.

What She Was Evading, and Why It Mattered

The “domestic terrorism” label that Noem attached to Good and Pretti within hours of their deaths was not an offhand remark. It was a legal move.

As our earlier reporting on these cases documents, DHS spokesperson Tricia McLaughlin issued a statement saying Good had attempted to “run over” ICE officers in “an act of domestic terrorism” within hours of the January 7 shooting. Bystander video later showed Good’s vehicle rolling slowly backward, not accelerating toward agents. ICE agent Jonathan Ross fired three shots in under one second as the vehicle moved away. Noem was asked about the video on CNN. She said: “It absolutely is what happened.”

The pattern repeated with Pretti, killed January 24 during Operation Metro Surge. Federal agents reported that Pretti approached Border Patrol officers in a manner they perceived as threatening and that he was carrying what they believed to be a handgun. Agents operating under Operation Metro Surge were deployed in what DHS characterized as a high-threat enforcement environment.

The government’s account holds that officers made a split-second threat assessment based on perceived danger cues in conditions, including distance, lighting, and the dynamics of a rapidly evolving encounter, that may not be fully captured in available video. The government has also noted that a subject’s orientation at the moment of firing does not by itself resolve whether a threat was perceived. People move and turn during confrontations. Those contextual factors, in the government’s account, informed the agents’ judgment.

Video analysis and witness accounts, however, presented a significantly different picture. Pretti’s cell phone was in his right hand, nothing in his left. Two sworn witnesses said he did not brandish a weapon, and the Hennepin County Medical Examiner found he was shot multiple times in the back. The forensic findings remain formally contested pending the FBI investigation. The weight of the available physical and testimonial evidence has led independent analysts and the victims’ families to dispute the agents’ account. DHS maintained the terrorism framing throughout.

Whether or not the terrorism framing was applied strategically, its legal effects were significant. It is worth distinguishing between those objective effects and the contested question of intent.

DHS officials could argue, and some have, that federal agents operating under threat and with incomplete information applied a standard operational characterization routinely used pending investigation. They further argue that such a characterization does not require proof beyond reasonable doubt at the time of issuance. On that reading, the terrorism label reflected a genuine, if preliminary, threat assessment. It was made in good faith by officials who believed the legal threshold had been met.

The article’s later framing, whether the terrorism characterization was a genuine assessment or a legal strategy, acknowledges this remains an open question. What is not in dispute are the label’s legal consequences, whatever the intent behind it. Terrorism investigations are exempt from many transparency requirements that apply to ordinary criminal cases. Courts also grant considerable deference to government claims that disclosure would compromise national security or ongoing terrorism probes.

The terrorism label applied at the time also shifts the legal ground for any future civil lawsuits by the families. Defense lawyers representing the agents who fired will argue their clients reasonably saw a terrorist threat based on information available at the time. Most directly relevant to the hearings, the terrorism label gave Noem a ready-made excuse for every refusal. Ongoing investigation. Agent safety. Investigative integrity.

The Three Tools Congress Has, and Why They Fail Against the Executive Branch

Congress has three formal mechanisms for compelling testimony and punishing witnesses who refuse: criminal contempt, civil contempt, and inherent contempt. In theory, these give the legislative branch real power. In practice, each has been made nearly unusable against executive branch officials, through how the system is built and decades of decisions by both parties.

Criminal contempt is the most commonly used. Under 2 U.S.C. § 192, any person who willfully refuses to answer questions relevant to a congressional inquiry is guilty of a misdemeanor punishable by fine and imprisonment. The process works as follows: a committee votes to hold the witness in contempt; the full chamber votes to adopt the citation; the Speaker or Senate President formally refers the case to the U.S. Attorney for the District of Columbia; that prosecutor then presents the case to a grand jury.

The fatal flaw is step four. The U.S. Attorney works for the Department of Justice, which is headed by the Attorney General. The Attorney General serves at the will of the president whose officials are being investigated. The DOJ’s Office of Legal Counsel has formally opined that the department is not required to prosecute executive branch officials who invoke executive privilege claims (the president’s claimed right to keep internal communications secret), even after Congress has voted to hold them in contempt. The opinion is clear: “A United States Attorney is not required to refer a congressional contempt citation to a grand jury or otherwise to prosecute an Executive Branch official who carries out the President’s instruction to invoke the President’s claim of executive privilege.”

Sources: Congressional Research Service analysis of contempt actions; DOJ’s 2024 letter declining to prosecute Garland; DOJ’s declination on Meadows and Scavino. Note: Steve Bannon and Peter Navarro were prosecuted for contempt, but both were private citizens at the time of their citations, having left government in 2017 and 2021 respectively.

The Bannon and Navarro prosecutions are sometimes cited as proof the system works. Both men were convicted and sentenced to four months in prison. Their cases show that the contempt statute is legally sound, that courts will uphold it, and that DOJ is able to prosecute it when it chooses to do so.

Supporters of this view argue that the mechanism itself works and that the problem is not structural design but rather DOJ’s discretionary choices.

That argument, however, runs into the private-citizen difference. Both Bannon and Navarro had left government, in 2017 and 2021 respectively, before they were subpoenaed. The willingness to prosecute former officials who no longer work for the president only points out the unwillingness to prosecute an uncooperative or defiant witness who does. The table above shows that unwillingness has held consistently across administrations of both parties. If the problem were simply political will in any given administration, one would expect at least occasional prosecutions of sitting officials. The record shows none.

Civil contempt offers a workaround: Congress bypasses DOJ entirely by filing a lawsuit in federal court seeking a court order forcing compliance. This is what the House Judiciary Committee did in 2008 when Harriet Miers and Joshua Bolten refused to comply with subpoenas about the U.S. Attorney firings.

The problem is time. The Miers litigation dragged on for months, with the executive branch challenging jurisdiction at every turn. By the time District Judge John Bates ruled in the House’s favor, Barack Obama had been elected and the Bush administration was in its final weeks. The case was settled, some documents were provided, and the underlying legal questions were never fully resolved.

More recently, litigation to enforce subpoenas against former White House Counsel Don McGahn took more than a year to wind through the courts. It was settled when the Biden administration took office. Civil enforcement suits, as legal scholars have noted, are almost perfectly timed to be made pointless by the next election.

Inherent contempt is the oldest mechanism and in theory the most powerful. Either house of Congress can arrest and hold an uncooperative witness using the Sergeant-at-Arms, hold a trial on the chamber floor, and impose fines or imprisonment until the witness complies. The Supreme Court upheld this power in McGrain v. Daugherty in 1927, calling it an essential part of the legislative function. It has not been used against anyone since 1935.

The reasons are partly practical (Congress has no jail), partly political (the image of arresting a Cabinet secretary would be explosive), and partly legal. The DOJ has stated that using it against executive branch officials would violate separation of powers, the constitutional divide between branches, though this position has never been tested in court.

Representative Adam Schiff proposed reviving it in 2019. He suggested daily fines of up to $25,000 against Trump administration officials who defied subpoenas. The proposal went nowhere.

Republican Criticism at the Hearings, and Why It Produced No Accountability

The bipartisan criticism at the March 3-4 hearings was, in one sense, genuinely striking. Senator Thom Tillis of North Carolina, not a moderate and not a Trump critic, delivered what can only be described as a denunciation. “Under your leadership, Ms. Noem, a disaster,” Tillis said, his voice rising. “What we’ve seen is innocent people getting detained that turn out are American citizens.” He accused Noem of chasing “numbers that Stephen Miller wants out of the White House” rather than directing enforcement resources at dangerous criminals. He also cited a letter from the DHS Office of Inspector General documenting “10 different instances under Ms. Noem’s leadership where they’ve been misled and not allowed to pursue investigations.”

Senator John Kennedy of Louisiana pressed Noem on an Axios report quoting her as saying “everything I’ve done, I’ve done at the direction of the president and Stephen.” He asked whether she had blamed White House deputy chief of staff Stephen Miller for her domestic terrorism remarks. Noem denied making the statement. Kennedy insisted she had been quoted on the record. The exchange devolved into a dispute about anonymous sources before the chairman gaveled time.

Tillis went further than rhetoric. He vowed to “put a hold on any nominations approved as a group (en bloc)” until he received answers. He also threatened to block committees by refusing to show up for votes in as many committees as he could if Noem didn’t respond within two weeks. These are real tools. Members can absolutely slow down the confirmation process if they want to.

Noem was gone within 48 hours of that threat. Reassigned, replaced, the controversy defused by simply replacing her rather than answered through testimony. Tillis’s use vanished the moment Noem was no longer the person he was pressuring.

Her replacement, Markwayne Mullin, could express general support for immigration enforcement while separating himself from any specific operational decisions made before his arrival. The accountability gap remained; it had different people standing around it.

This is the executive branch’s most effective way to avoid oversight, and it requires no legal argument at all. The questions being asked were about Noem’s conduct, Noem’s decisions, Noem’s public statements. Once she was no longer DHS Secretary, those questions ceased to have an obvious target. Congress can investigate a person or an institution. It struggles, however, when the person leaves and the institution claims it continues as before without accepting responsibility.

Noem’s Testimony on Lewandowski Contracts: A Case Study in Unprosecuted Perjury

One exchange during the Senate hearing showed how congressional oversight can be both aggressive and completely ineffective at the same time. Senator Richard Blumenthal of Connecticut asked Noem whether Corey Lewandowski had “a role in approving contracts” at the department. Lewandowski is a Trump political ally serving as a “special government employee” (a part-time political appointee with limited official status) at DHS. Her answer was flat: “No.”

The next day, ProPublica published internal DHS records showing that Lewandowski had personally approved a multimillion-dollar equipment contract the previous summer. He also routinely signed approval forms that route money to contractors before money could be paid out. Current and former DHS employees told ProPublica that “Lewandowski’s signature is a green light for money to be transmitted to contractors.”

Blumenthal sent Noem a letter stating that “evidence suggests that your testimony was false” and pointing out that “there are criminal penalties for knowingly and willfully making false statements that matter to the inquiry, which is a federal felony.”

But the key word in that law is “willfully.” Prosecutors must prove the witness knew the statement was false when she made it and meant to deceive. Noem could reasonably argue she read “approving contracts” to mean something narrower than “signing routing sheets,” or that she misunderstood the question. And more: who would prosecute? The same Department of Justice that has declined to prosecute every other executive branch contempt referral in the modern era would be the one to decide.

The Lewandowski exchange became a microcosm of the whole problem. A direct factual question was asked. Documentary evidence contradicted the answer. The senator accused her of lying. Then Noem left her job for unrelated reasons. The question of whether she committed perjury became a theoretical exercise that no prosecutor will ever pursue.

What Happened in the Fifty-Five Days Before the Hearings

Renee Good was killed on January 7. The Senate Judiciary Committee hearing opened on March 3. Fifty-five days passed between those two dates, and what happened in between is as telling as the hearings themselves.

Representative Robin Kelly of Illinois introduced articles of impeachment against Noem, accusing her of three offenses: obstruction of Congress, blocking lawmakers from doing their oversight job (for refusing to allow members to enter ICE detention facilities), violation of public trust (for directing warrantless arrests and use of violence against U.S. Citizens), and self-dealing (for misusing taxpayer funds for personal advertising). Seventy House Democrats cosponsored the resolution. With Republicans controlling the chamber, it had no prospect of advancing. It remains pending in the House Judiciary Committee, where it will almost certainly die without a hearing.

Republicans controlling the House have offered a substantive, not merely political, basis for that outcome. They argue that impeaching a Cabinet secretary over disputed operational decisions and policy disagreements would set a dangerous precedent for legislative interference with executive branch management. They also argue that the constitutional standard for impeachment, “high crimes and misdemeanors”, was not met by the conduct alleged. That argument is disputed by the resolution’s sponsors. It nonetheless reflects a genuine separation-of-powers concern that goes beyond vote-counting. (For a fuller analysis of how impeachment functions as an oversight tool, see our piece on congressional impeachment powers and Cabinet officials.)

The FBI opened an investigation into whether civil rights violations occurred, as it routinely does when federal agents kill someone. As we’ve reported in detail, those investigations move slowly, often taking a year or more, and outcomes are rarely made public.

Minnesota state investigators, who would normally lead homicide investigations within their jurisdiction, were barred by federal authorities from accessing the crime scenes or evidence. Drew Evans, Superintendent of the Minnesota Bureau of Criminal Apprehension, issued a statement saying “the investigation would now be led solely by the FBI, and the BCA would no longer have access to the case materials, scene evidence or witnesses.” The only people with access to evidence were federal employees investigating other federal employees.

No ICE or Border Patrol agents were publicly disciplined. When Representative Eric Swalwell pressed Noem during the March 4 House hearing on whether any officers had been fired since she took office, she responded with a generic statement about accountability processes without naming any specific disciplinary actions. According to on-site commander Gregory Bovino, the agents involved in the Pretti shooting were “placed on administrative duty and/or relocated out of Minneapolis for the officers’ safety.” They were expected to remain Border Patrol agents.

Each institution involved could point to its established procedures as justification for delay, with no single actor responsible for the absence of a public accounting: the FBI investigates thoroughly and does not rush; DHS does not comment on ongoing investigations or personnel matters; Congress held hearings and put hard questions on the record.

Each step could be defended on procedural grounds, but none of it added up to an answer about why two American citizens were shot dead by federal agents, or who, if anyone, would be held responsible.

Constitutional Design or Constitutional Failure: Scholars Disagree

Legal scholars disagree on whether this situation represents a constitutional breakdown or the Constitution working exactly as intended — a disagreement that goes deeper than contempt law.

Georgetown law professor Josh Chafetz, in his influential analysis of executive branch contempt, argues that Congress has given up its own constitutional power by asking courts to do its job instead of using its own inherent powers. The framers, in this view, deliberately gave each branch its own enforcement mechanisms. Fights between the branches were meant to be settled through political pressure, not court orders.

Congress has the power of the purse (its control over government funding), the power to block nominations, the power to impeach. If it prefers to ask judges to force the executive to cooperate, it is asking another branch to do its fighting. It shouldn’t be surprised when that strategy produces slow, inconclusive results. From this perspective, the reason nothing happens after hearings like Noem’s is not that the system is broken. It’s that Congress refuses to use the tools the Constitution gives it.

The opposing view holds that the modern federal bureaucracy has grown so large and powerful that what the founders assumed about the branches checking each other no longer apply. The president commands a Department of Justice with 115,000 employees, a Department of Homeland Security with 240,000 employees, and intelligence capabilities that dwarf anything available to Congress. The idea that the legislative branch can simply force its way to accountability through raw political will seems, at minimum, overly hopeful.

Morton Rosenberg spent decades as the Congressional Research Service’s top expert on these issues. He has argued that without effective contempt enforcement, Congress ceases to function as a co-equal branch of government. The point of having formal legal mechanisms was exactly to avoid turning oversight into a raw political fight with no rules.

Congress does often prefer theater to real confrontation. Holding hearings produces clips for social media and talking points for elections. Blocking funding or refusing to confirm nominees requires lasting political will and acceptance of consequences. The Noem hearings were scheduled during a partial DHS shutdown caused by Democrats demanding ICE reforms, but those demands faded once the political pressure grew uncomfortable.

At the same time, it’s hard to argue that a system producing zero prosecutions of executive branch officials for contempt across multiple decades and administrations of both parties is working as intended. Whether or not the framers expected this outcome, the result raises questions about whether the oversight function Congress was designed to perform is being carried out.

Remaining Accountability Paths: FBI Investigation, Civil Suits, and State Officials

The Noem case will almost certainly follow the same path as the Fast and Furious controversy, an Obama-era dispute over a gun-tracking operation that went wrong. In 2012, the House voted 255-67 to hold Attorney General Eric Holder in contempt over his refusal to hand over documents related to that operation, making him the first sitting Cabinet member ever held in contempt by either chamber. The political image was terrible for the Obama administration. The DOJ immediately announced it would not prosecute its own boss.

The House filed a civil lawsuit. The legal fight dragged on for years. By the time the court ruled partly in the House’s favor, Obama had been reelected and was well into his second term. Some documents were eventually provided. The fundamental question of whether Congress could force the executive to comply was never answered.

That pattern has repeated with Barr, with Mnuchin, with Meadows, with Garland. The specific officials change; the structural outcome does not.

What’s different about the Noem case is the underlying facts. Previous contempt fights were largely about documents and testimony tied to policy disputes or political investigations. The Noem hearings were about two dead American citizens and bystander video that contradicted the government’s account. They were also about a terrorism label applied within hours of the shootings that has never been substantiated. Those facts don’t disappear when Noem leaves her job.

The FBI investigation into the shootings remains open. The families of Renee Good and Alex Pretti retain the right to file civil lawsuits. Those suits work under different rules of evidence than criminal cases and don’t depend on DOJ cooperation. State and local officials in Minnesota, though currently blocked from the federal investigation, are watching.

The question that the contempt mechanisms cannot answer, and that the hearings did not answer, is whether the domestic terrorism framing was a genuine assessment or a legal move used to block accountability. That question will eventually be examined somewhere, by someone, in some setting. It will not be examined in the setting that was supposed to examine it.

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