When Congress Questions the Attorney General, What Can They Compel?

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Pam Bondi sat before the House Judiciary Committee on a Wednesday morning in February 2026, facing questions about whether she had turned the Justice Department into a weapon. The hearing lasted an hour. Democrats accused her of prosecuting Trump’s political enemies while Republicans insisted she was correcting past abuses. But underneath the partisan theater sat a question that matters more than the politics: What can Congress force an Attorney General to tell them?

The answer turns out to be: less than you’d think.

Since taking office, the Attorney General has overseen the firing of more than 20 career prosecutors who worked on January 6 cases or investigations into Trump. Her department launched criminal investigations into Federal Reserve Chair Jerome Powell, Senator Adam Schiff, and former intelligence officials James Clapper and John Brennan. Former FBI Director James Comey and New York Attorney General Letitia James—two of Trump’s most prominent adversaries—were indicted on charges. A federal judge later threw out the cases because the prosecutor who brought them was illegally appointed.

Congress wanted answers. What they discovered is that wanting answers and getting them are different things.

The Constitutional Power That Doesn’t Quite Work

The Constitution never explicitly gives Congress the power to investigate the executive branch. Courts had to infer it.

In 1927, the Supreme Court decided McGrain v. Daugherty, establishing that Congress has investigative authority as a necessary part of its legislative function. The logic was straightforward: you can’t write good laws if you don’t know what’s happening. The Court called the power of inquiry “an appropriate auxiliary to the legislative function.”

That sounds powerful. In practice, it’s proven surprisingly weak when the nation’s top prosecutor decides not to cooperate.

The problem isn’t the legal theory—it’s the enforcement. Congress has three ways to compel testimony: criminal contempt, civil lawsuits, and something called “inherent contempt” that involves the Sergeant-at-Arms physically arresting people. The first doesn’t work against executive branch officials. The second takes years. The third hasn’t been used since the 1930s and probably violates due process if anyone tried it today.

Which means the head of the Justice Department who enjoys presidential support can refuse to answer questions with reasonable confidence that nothing much will happen.

When Executive Privilege Becomes a Shield

Executive privilege comes in three flavors, each with different strength.

Presidential communications privilege is the strongest. It protects conversations between the President and close advisers seeking advice on official matters. The Attorney General can invoke this to refuse testimony about any discussion with the President about prosecutorial decisions. The Office of Legal Counsel concluded in 1996 that immediate presidential advisers have absolute immunity from compelled congressional testimony. Courts have mostly agreed.

Deliberative process privilege protects internal discussions before final decisions get made—the back-and-forth, the rejected options, the tentative conclusions. The theory is that officials need to debate frankly without fear that every half-formed thought will end up in a congressional hearing. When Eric Holder refused to produce documents about Operation Fast and Furious in 2012, he asserted this privilege. Congress never got the documents.

Law enforcement privilege protects information that would compromise ongoing investigations. The Attorney General can cite this to avoid explaining prosecutorial strategy, witness protection concerns, or investigative techniques. The privilege isn’t absolute—lawmakers can demand information about why cases were brought—but it creates substantial room to refuse detailed answers.

Here’s the thing: these privileges work because Congress can’t effectively challenge them. The executive branch asserts privilege, Congress objects, and then… nothing happens. Criminal contempt requires the Justice Department to prosecute itself. Civil litigation takes so long that the congressional session often expires before courts resolve the dispute. The privileges don’t have to be airtight—they need to delay long enough.

The Three Enforcement Mechanisms (And Why They Fail)

Criminal contempt sounds serious. Under 2 U.S.C. § 192, refusing to comply with a congressional subpoena is a misdemeanor punishable by up to a year in prison. When a committee determines someone has violated this statute, it certifies the matter to the U.S. Attorney with a recommendation for grand jury presentation.

The fatal flaw: the Justice Department decides on prosecution. The head of that department can simply decline to prosecute herself or other executive officials. That’s what happened when the House held Eric Holder in criminal contempt in 2012 by a vote of 255-67. Holder’s Justice Department declined to prosecute. No grand jury convened. No indictment. The contempt vote became a symbolic gesture with zero legal consequence.

Civil enforcement works better, sometimes. Lawmakers can sue in federal court to enforce a subpoena. This approach produced results in 2008 when the House sued to compel testimony from former White House Counsel Harriet Miers about the firing of federal prosecutors. The case settled before final judgment. But the preliminary court ruling suggested Congress would win, which provided leverage for negotiation.

But civil litigation moves slowly. A subpoena enforcement case can take months or years to work through the courts. Congress operates on two-year cycles, so a subpoena issued in early 2025 becomes moot if unresolved by January 2027. The Trump administration has shown particular skill at litigation delay tactics. Even unfavorable rulings get appealed, extending timelines further.

Inherent contempt—Congress’s power to arrest and detain people who refuse compliance—exists in theory. The constitutional authority derives from each chamber’s power to punish disorderly behavior and expel members. Courts have interpreted this to imply broader enforcement power through Congress’s own processes.

In practice, it’s unusable. Congress hasn’t employed inherent contempt since the 1930s. The idea of the Sergeant-at-Arms physically arresting the Attorney General is politically unthinkable and might violate due process. It exists as a constitutional curiosity, not a realistic option.

The practical effect: the nation’s top prosecutor who enjoys White House support can refuse congressional demands with confidence that consequences will be political rather than legal. Public criticism, yes. Adverse press coverage, certainly. But criminal prosecution or forced compliance? Unlikely.

What Happened With Holder and Barr

The Fast and Furious controversy started in 2010 when it became public that the Bureau of Alcohol, Tobacco, Firearms and Explosives had allowed approximately 2,000 firearms to be sold to intermediaries working for Mexican drug cartels. The operation was supposed to trace the weapons’ movement. Instead, it was poorly managed. It contributed to the death of Border Patrol Agent Brian Terry when weapons from the operation were found at his murder scene.

Congressional Republicans demanded internal Justice Department documents about how such an operation got approved. Eric Holder refused, asserting executive privilege and deliberative process doctrine. After more than a year of negotiation, the House voted 255-67 to hold Holder in contempt. President Obama formally asserted executive privilege over the withheld documents. The Justice Department declined to prosecute Holder.

The documents were never produced. The controversy faded when the congressional session ended.

The Barr situation in 2019 followed a similar pattern. When Special Counsel Robert Mueller submitted his report on Russian interference, William Barr provided Congress with a four-page summary before releasing a redacted version of the full report. House Democrats argued they were entitled to the full unredacted report and underlying evidence. The Trump administration resisted, citing grand jury secrecy rules, ongoing investigations, and work product.

The House Judiciary Committee voted to hold Barr in contempt. The full House never brought it to a vote, recognizing that criminal contempt prosecution was futile. The committee authorized civil litigation but didn’t pursue it vigorously. By the time the Trump administration changed investigative targets, the litigation had been abandoned. Congress never got the unredacted Mueller Report.

These episodes establish a pattern: when the Attorney General enjoys presidential support and refuses congressional demands, enforcement mechanisms prove inadequate. Criminal contempt isn’t prosecuted. Civil litigation moves slowly and faces political pressures. Congress lacks practical alternatives short of impeachment, which requires a two-thirds Senate majority and is reserved for “high crimes and misdemeanors.”

The Comey and James Prosecutions

What makes the current situation different is the brazenness.

In September 2025, President Trump publicly directed the Attorney General via social media to prosecute former FBI Director James Comey, stating that Comey “should face charges for treason” and demanding that “JUSTICE MUST BE SERVED, NOW!!!” Days later, an interim U.S. Attorney in Virginia—handpicked by Trump after the previous U.S. Attorney expressed reluctance to pursue charges—secured a grand jury indictment of Comey on charges of making false statements to Congress and obstructing a congressional proceeding.

Similarly, at Trump’s direction, another grand jury indicted New York Attorney General Letitia James on mortgage fraud charges related to a property purchase.

Then things got strange. A federal judge found that the prosecutor who secured both indictments, Lindsey Halligan, had been unconstitutionally appointed in violation of the Appointments Clause and federal law governing interim U.S. Attorney appointments. Halligan was the second interim U.S. Attorney appointed to the position in succession, but federal law permits only one interim appointment before the district court must take over appointment authority. All indictments she signed were void—she lacked legal authority to exercise prosecutorial power at all.

Judge Cameron McGowan Currie wrote that allowing such an appointment to stand would mean “the Government could send any private citizen off the street—lawyer or not—into the grand jury room to secure an indictment so long as the Attorney General gives her approval after the fact. That cannot be the law.”

The Trump administration’s response wasn’t to accept the judicial determination. Instead, Halligan continued using the title of U.S. Attorney despite the court’s finding. A subsequent judicial order demanded that the Justice Department explain why Halligan was still claiming authority the court had declared she didn’t possess.

This raises a question that should trouble anyone who cares about the rule of law: if the Attorney General won’t comply with court orders, if she won’t acknowledge judicial determinations about her own authority, what leverage does Congress have?

What Congress Can Compel

The realistic boundaries emerge from the interaction of constitutional principles, privilege doctrines, enforcement constraints, and political factors.

General policy questions: Lawmakers can almost certainly compel the Attorney General to appear and answer questions about department policies, priorities, budget matters, and performance metrics. She cannot refuse to appear at a hearing or declare entire topics off-limits. The Attorney General appeared before the House Judiciary Committee and while she objected to certain questions, she didn’t refuse to appear.

Personnel decisions: Lawmakers can demand explanation of decisions to hire, fire, promote, or transfer Justice Department employees. When career prosecutors who worked on Capitol riot cases or Trump investigations were terminated, Congress has authority to ask why. However, the Attorney General can potentially assert executive privilege for deliberations about those decisions, particularly if they involved confidential discussions with the President or legal strategy in ongoing cases.

Specific prosecutions: This is where Congress faces the most resistance. The Attorney General can invoke law enforcement privilege to resist detailed questioning about decisions to prosecute or not prosecute specific cases. The privilege isn’t absolute—lawmakers can compel information about grounds for prosecuting high-profile opponents—but specific aspects like investigative techniques, witness protection, and grand jury materials remain protected.

Communications with the President: If Congress subpoenas emails or testimony about communications between the Attorney General and President regarding specific prosecutions, the executive branch will invoke presidential communications privilege. This privilege is unusually strong and difficult to overcome even in judicial proceedings. Congress will struggle to compel disclosure of what the President said to the nation’s top prosecutor about prosecutorial decisions.

Internal deliberations: Documents reflecting internal Justice Department discussions about prosecutorial decisions—memos discussing evidence strength, legal theories, strategic options—are likely protected by deliberative process privilege. Lawmakers face an uphill battle compelling such documents, though they can sometimes negotiate for factual information separated from deliberative content.

Historical precedent and selective enforcement: Lawmakers can compel the Attorney General to provide information comparing her prosecutorial decisions to predecessors, to explain enforcement patterns, and to justify differential treatment of similar cases. She cannot simply refuse to explain why she’s prosecuting Trump opponents for mortgage fraud while declining to prosecute Trump allies for similar conduct. Congress can demand statistics about prosecution rates, investigation patterns, and demographic disparities.

The pattern is clear: Congress possesses genuine authority to oversee the Attorney General and demand explanation for controversial decisions, but that authority is bounded. Executive branch cooperation is necessary to its effectiveness.

The Watergate Legacy Nobody Talks About

After Watergate, Congress and the executive branch adopted reforms designed to insulate prosecutors from presidential pressure. Following Nixon’s attempt to use the Justice Department to obstruct investigations into his own conduct—and his successful effort to fire Special Prosecutor Archibald Cox, triggering the resignations of the Attorney General and Deputy Attorney General in the “Saturday Night Massacre”—a consensus emerged that while the President’s law enforcement priorities were appropriate subjects for discussion, the President shouldn’t direct prosecution or non-prosecution of specific cases.

Particularly cases involving the President’s opponents.

William Barr, despite his generally cooperative relationship with the Trump administration in the first term, publicly complained in 2020 that Trump’s social media posts about specific prosecutions made it “impossible” for Barr to “assure the courts and the prosecutors that we’re doing our work with integrity.” Barr was invoking the post-Watergate norm insisting on space between presidential direction and prosecutorial decision-making.

The current episode represents a stark break from that consensus. Trump has publicly and repeatedly directed prosecutions of specific individuals he views as enemies, and the Attorney General has accommodated those directions. This isn’t merely a departure from norms—it’s a potential constitutional crisis suggesting the executive branch no longer pays lip service to the principle that prosecutorial decisions should be insulated from presidential interests.

From Congress’s perspective, this erosion creates both opportunity and vulnerability. Lawmakers can argue that the Attorney General’s conduct represents violation of Justice Department independence principles, justifying aggressive oversight. But the fact that these norms have eroded means Congress faces greater difficulty compelling compliance, since the executive branch no longer feels bound by post-Watergate conventions about cooperating on sensitive matters.

An executive branch willing to openly violate Justice Department independence norms is unlikely to graciously comply with congressional oversight demands.

Why This Matters Beyond Politics

Prosecutorial power is among the most discretionary powers possessed by any government official. The Attorney General and her prosecutors choose which individuals to investigate, which cases to pursue, which charges to bring, which sentences to recommend. If that power is exercised based on political rather than prosecutorial considerations—if individuals are targeted because they’re opponents rather than because they committed crimes—the rule of law has been fundamentally compromised.

Citizens can no longer feel confident that facing criminal prosecution depends on their conduct rather than their alignment with those in power.

Congressional oversight of the Attorney General isn’t merely institutional power-balancing between legislative and executive branches. It’s a mechanism through which the rule of law itself can be preserved. When Congress cannot compel the nation’s top prosecutor to explain and justify prosecutorial decisions, the rule of law is endangered.

Yet the mechanisms Congress possesses to compel such explanation have proven inadequate in recent practice. This suggests the rule of law may depend less on formal legal mechanisms than on voluntary executive branch respect for norms of prosecutorial independence.

Which raises a profound question: what happens when those norms are abandoned?

If an administration is willing to publicly direct prosecutions for political purposes, and if the Attorney General is willing to accommodate those directions, can Congress’s investigative power provide an adequate check? The current situation suggests the answer may be no—at least not through direct compulsion.

Congress’s power to investigate, to publicize findings, to hold hearings, and to impose consequences through public opinion remains significant. But these are softer forms of power than binding legal directives. Some legal experts argue this reality points to the inadequacy of relying on Justice Department independence norms alone, contending that Congress should legislate clearer rules governing prosecutorial discretion, establish independent inspection mechanisms, and create statutory protections for career prosecutors who resist pressure.

Others argue the solution lies in the courts, suggesting that defendants faced with selective or vindictive prosecution should be able to compel discovery of evidence about targeting for political reasons, and that judges should dismiss cases infected by political motivation.

Still others insist the ultimate check on prosecutorial abuse must be electoral, trusting that voters will impose consequences when an administration is perceived as weaponizing law enforcement.

The Uncomfortable Truth

When Pam Bondi appeared before the House Judiciary Committee, she faced questions rooted in Congress’s legitimate constitutional authority to oversee the executive branch and investigate potential abuse of prosecutorial power. Lawmakers can compel her appearance, can demand testimony about policies and personnel decisions, and can challenge her on considerations influencing decisions to prosecute or not prosecute high-profile cases.

These are real powers that shouldn’t be understated.

But the mechanisms by which Congress enforces compliance have proven inadequate to compel a resistant executive branch to produce information it wishes to withhold. Criminal contempt is ineffective when the executive branch refuses to prosecute. Civil litigation is slow and uncertain. The inherent contempt power is politically impractical in the modern era.

The Attorney General who enjoys presidential support can assert executive privilege, claim law enforcement concerns, delay through litigation, and rely on the fact that criminal prosecution for contempt of Congress is unavailable as a remedy. The historical record of the Holder and Barr controversies demonstrates that even when Congress votes to hold the nation’s top prosecutor in contempt, the consequence can be purely symbolic.

This points to a fundamental vulnerability in the constitutional structure of checks and balances: Congress’s investigative power, while theoretically broad, depends in practice on either executive branch cooperation or judicial intervention. Neither is guaranteed.

When an administration is determined to avoid accountability and willing to violate post-Watergate norms, Congress’s formal legal powers prove surprisingly limited. The question of what Congress can compel from the Attorney General turns out to be not merely a technical legal question about privilege doctrines and contempt procedures, but a constitutional question about the separation of powers functioning without voluntary restraint by the branches.

Norms and traditions, not formal law, are necessary to the rule of law itself.

If Congress cannot effectively investigate potential politicization of the Justice Department, if executive branch officials can resist oversight with relative impunity, then prosecutorial power—among the most discretionary and consequential powers in a democracy—becomes largely insulated from meaningful democratic accountability. This represents not a problem for Congress alone, but a challenge to the rule of law itself.

The answer to what Congress can compel when questioning the Attorney General is this: enough to ask uncomfortable questions, but not enough to force honest answers from someone determined not to give them. Which means the real check on prosecuting opponents isn’t congressional oversight at all—it’s enough people caring to make it politically unsustainable.

That’s a less satisfying answer than the civics textbooks provide. But it’s the one that matters.

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