Contempt of Congress: It's Complicated
The House will likely vote this week on a resolution to hold Attorney General Holder in contempt of Congress.
The history of Congressional contempt findings go back to the early days of Congress itself. Modern cases show that enforcement of contempt can be tough -- especially against a federal officer claiming executive priviledge.
Early "Contempt of Congress" -- According to CRS, the first "contempt of Congress" finding was in 1795, when three Members of Congress accused Robert Randall and Charles Whitney of attempting to bribe them to pass a law granting "18-20 million acres of land bordering Lake Erie." The Seargent-at-Arms arrested and detained Mr. Randall. A proceeding similar to a trial was held at "the bar of the House", and on on Jan 4, 1796, the House found Randall in contempt. He was held in custody for nine days until the House passed another resolution letting him go.
Details of this and other precedents of Congressional contempt findings throughout the years are described in the nonpartisan Congressional Research Service report, "Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure" (CRS does not actually publicly release its reports, but several sources, including the Federation of American Scientists keep a catalog of any CRS reports that have been released by others.)
Inherent Contempt (A Trial in Congress) -- In those early days, Congress asserted (and the Supreme Court agreed) that it inherently had the right to hold people in contempt because the Constitution grants the power to legislate -- which requires a power to investigate so Congress understands what it is legislating -- and includes the power to compel testimony (McGrain v. Daugherty). As the CRS report alludes, who would argue "original intent" with Congress in 1795? Many then-Members of Congress also happened to have been at the Constitutional Convention just a few years earlier. The Supreme Court later clarified that the "inherent contempt" power is broad (Eastland v. US Servicemen's Fund), is at its peak when the investigation in question is waste, fraud, abuse within gov dept (Barenblatt v. US) and it has to be related to legislating, not the private matters of citizens (Kilbourn v. Thompson).
But there is no Capitol jail and Congress has not used this "inherent contempt" power since 1934, when Hoover's Commerce Secretary, William MacCracken, was held at the Williard Hotel for his participation in the Air Mail scandal.
Criminal Contempt (Turn it over to the U.S. Attorney) -- In 1857, Congress passed a law making contempt of Congress a crime. According to 2 U.S.C. §§192, 194, "a person who has been “summoned as a witness” by either House or a committee thereof to testify or to produce documents and who fails to do so, or who appears but refuses to respond to questions, is guilty of a misdemeanor, punishable by a fine of up to $100,000 and imprisonment for up to one year."
If Congress wants to find someone in criminal contempt, the process is that:
- A Congressional committee recommends a finding of contempt,
- The committee report is read on the House Floor,
- The full body votes on a resolution recommending that the Speaker of the House certifies the finding of contempt to the U.S. Attorney,
- The Speaker certifies the finding,
- The U.S. Attorney has a duty to bring the certification to a grand jury for action.
Executive Priviledge Complicates Executive Enforcment -- Things get complicated when the contempt discussion is around an "executive priviledge" and the question becomes whether one branch of government can compel another branch do something.
In 2007, the House Judiciary Committee investigated the Executive Branch over allegations that the resignations of nine United States Attorneys were politically engineered. "The Bush Administration asserted that senior presidential advisors, like Senior Counsel Harriett Miers, were absolutely immune from compelled testimony before Congress when asserting executive privilege at the direction of the President." The U.S. District Court for D.C. rejected that, reaffirmed Congress’s “essential” constitutionally based power to issue and enforce subpoenas, but "made no explicit comment about Congress’s authority to punish executive branch officials through contempt." (quoting CRS report) The case was appealed but no resolution reached because the subpoenas in question expired at the end of the Congresional session that issued them.
"Civil" Contempt (Leave it to the Courts) -- There is a third contempt option, at least in the Senate, which has passed a civil enforcement statute. The statute allows Congress to essentially "sue" for enforcement of its subpoena. This leaves the decision and enforcement to the Judicial Branch. The Senate statute, however, is inapplicable in the case of a subpoena issued to an officer or employee of the federal government acting in their official capacity. 28 U.S.C. §1365.
So what's a Congress to do? What happens if the House votes in favor of a resolution holding the Attorney General in contempt? Who knows. Chances look pretty good, however, for a court battle that lasts at least as long as this Congressional session (which probably ends in December of this year). That could have a result (or lack of a result) similar to the Miers case.
One thing is for sure, however: No one is heading for the "Capitol Jail" anytime soon.
Learn more about how Congress works with our "The Hill 101" Series.