Contempt of Congress

Contempt of Congress is the act of obstructing the work of the United States Congress or one of its committees. Historically, the bribery of a U.S. Senator or U.S. Representative was considered contempt of Congress. In modern times, contempt of Congress has generally applied to the refusal to comply with a subpoena issued by a Congressional committee or subcommittee—usually seeking to compel either testimony or the production of requested documents.

History

In the late 1790s, declaring contempt of Congress was considered an "implied power" of the legislature, in the same way that the British Parliament could make findings of contempt of Parliament—early Congresses issued contempt citations against numerous individuals for a variety of actions. Some instances of contempt of Congress included citations against:

• Robert Randal, for an attempt to bribe Representative William Smith of South Carolina in 1795.
• William Duane, a newspaper editor who refused to answer Senate questions in 1800.
• Nathaniel Rounsavell, another newspaper editor, for releasing sensitive information to the press in 1812.

In Anderson v. Dunn (1821), the Supreme Court of the United States held that Congress' power to hold someone in contempt was essential to ensure that Congress was "... not exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may mediate against it." The historical interpretation that bribery of a senator or representative was considered contempt of Congress has long since been abandoned in favor of criminal statutes. In 1857, Congress enacted a law that made "contempt of Congress" a criminal offense against the United States.

The last time Congress arrested and detained a witness was in 1935. Since then, it has instead referred cases to the United States Department of Justice. The Office of Legal Counsel has asserted that the President of the United States is protected from contempt by executive privilege.

Subpoenas

Congressional rules empower all its standing committees with the authority to compel witnesses to produce testimony and documents for subjects under its jurisdiction. Committee rules may provide for the full committee to issue a subpoena, or permit subcommittees or the chairman (acting alone or with the ranking member) to issue subpoenas.

As announced in Wilkinson v. United States, a Congressional committee must meet three requirements for its subpoenas to be "legally sufficient." First, the committee's investigation of the broad subject area must be authorized by its chamber; second, the investigation must pursue "a valid legislative purpose" but does not need to involve legislation and does not need to specify the ultimate intent of Congress; and third, the specific inquiries must be pertinent to the subject matter area that has been authorized for investigation.

The Court held in Eastland v. United States Servicemen's Fund that Congressional subpoenas are within the scope of the Speech and Debate clause which provides "an absolute bar to judicial interference" once it is determined that Members are acting within the "legitimate legislative sphere" with such compulsory process. Under that ruling, courts generally do not hear motions to quash Congressional subpoenas; even when executive branch officials refuse to comply, courts tend to rule that such matters are "political questions" unsuitable for judicial remedy. In fact, many legal rights usually associated with a judicial subpoena do not apply to a Congressional subpoena. For example, attorney-client privilege and information that is normally protected under the Trade Secrets Act do not need to be recognized.

Procedures

Following the refusal of a witness to produce documents or to testify, the Committee is entitled to report a resolution of contempt to its parent chamber. A Committee may also cite a person for contempt but not immediately report the resolution to the floor. In the case of subcommittees, they report the resolution of contempt to the full Committee, which then has the option of rejecting it, accepting it but not reporting it to the floor, or accepting it and reporting it to the floor of the chamber for action. On the floor of the House or the Senate, the reported resolution is considered privileged and, if the resolution of contempt is passed, the chamber has several options to enforce its mandate.

Inherent contempt

Under this process, the procedure for holding a person in contempt involves only the chamber concerned. Following a contempt citation, the person cited is arrested by the Sergeant-at-Arms for the House or Senate, brought to the floor of the chamber, held to answer charges by the presiding officer, and then subjected to punishment as the chamber may dictate (usually imprisonment for punishment, imprisonment for coercion, or release from the contempt citation).

Concerned with the time-consuming nature of a contempt proceeding and the inability to extend punishment further than the session of the Congress concerned (under Supreme Court rulings), Congress created a statutory process in 1857. While Congress retains its "inherent contempt" authority and may exercise it at any time, this inherent contempt process was last used by the Senate in 1934, in a Senate investigation of airlines and the U.S. Postmaster. After a one-week trial on the Senate floor (presided over by Vice President John Nance Garner, in his capacity as Senate President), William P. MacCracken, Jr., a lawyer and former Assistant Secretary of Commerce for Aeronautics who was charged with allowing clients to remove or rip up subpoenaed documents, was found guilty and sentenced to 10 days imprisonment.

MacCracken filed a petition of habeas corpus in federal courts to overturn his arrest, but after litigation, the U.S. Supreme Court ruled that Congress had acted constitutionally, and denied the petition in the case Jurney v. MacCracken.

Presidential pardons appear not to apply to a civil contempt procedure such as the above, since it is not an "offense against the United States" or against "the dignity of public authority."

Statutory proceedings

Following a contempt citation, the presiding officer of the chamber is instructed to refer the matter to the U.S. Attorney for the District of Columbia; according to the law it is the duty of the U.S. Attorney to refer the matter to a grand jury for action. However, while the law places the duty on the U.S. Attorney to impanel a grand jury for action, some proponents of the unitary executive theory argue that the Congress cannot properly compel the U.S. Attorney to take this action against the Executive Branch, asserting that the U.S. Attorney is a member of the Executive Branch who ultimately reports only to the President and that compelling the U.S. Attorney amounts to compelling the President. They argue that to allow Congress to force the President to take action against a subordinate following his directives would be a violation of the separation of powers and infringe on the power of the Executive branch. The legal basis for this position, they contend, can be found in Federalist 49, in which James Madison wrote “The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.” This approach to government is commonly known as "departmentalism” or “coordinate construction”.

Others argue that Article II of the Constitution requires the President to execute the law, such law being what the lawmaker (e.g. Congress, in the case of statutory contempt) says it is (per Article I). The Executive Branch cannot either define the meaning of the law (such powers of legislation being reserved to Congress) or interpret the law (such powers being reserved to the several Federal Courts). They argue that any attempt by the Executive to define or interpret the law would be a violation of the separation of powers; the Executive may only—and is obligated to—execute the law consistent with its definition and interpretation; and if the law specifies a duty on one of the President's subordinates, then the President must "take care" to see that the duty specified in the law is executed. To avoid or neglect the performance of this duty would not be faithful execution of the law, and would thus be a violation of the separation of powers, which the Congress and the Courts have several options to remedy.

The criminal offense of "contempt of Congress" sets the penalty at not less than one month nor more than twelve months in jail and a fine of not more than $100,000.

Civil procedures

Senate Rules authorize the Senate to direct the Senate Legal Counsel to file a civil action against any private individual found in contempt. Upon motion by the Senate, the federal district court issues another order for a person to comply with Senate process. If the subject then refuses to comply with the Court's order, the person may be cited for contempt of court and may incur sanctions imposed by the Court. The process has been used at least six times.

Partial list of those held in contempt since 1975

Person	Subcommittee/Committee	Chamber	Ultimate Disposition
Rogers C.B. Morton (Republican), Secretary of Commerce	November 11, 1975 Subcommittee of the House Committee on Interstate and Foreign Commerce	Not considered	Morton released the material to the subcommittee.
Henry Kissinger (Republican), Secretary of State	November 15, 1975 House Select Committee on Intelligence	Not considered	Citation dismissed after "substantial compliance" with subpoena.
Joseph A. Califano, Jr. (Democrat), Secretary of Health, Education, and Welfare	August 6, 1978 Subcommittee of the House Committee on Interstate and Foreign Commerce	Not considered	Califano complied with the subpoena about one month after the subcommittee citation.
Charles W. Duncan, Jr. (Democrat), Secretary of Energy	April 29, 1980 Subcommittee of the House Committee on Government Operations	Not considered	Duncan supplied the material by May 14, 1980.
James B. Edwards (Republican), Secretary of Energy	July 23, 1981 Environment, Energy, and Natural Resources Subcommittee of the House Committee on Government Operations	Not considered	Documents were delivered to Congress prior to full Committee consideration of the contempt citation.
James G. Watt (Republican), Secretary of the Interior	February 9, 1982 Subcommittee of House Committee on Energy and Commerce February 25, 1982 House Committee on Energy and Commerce	Not considered	The White House delivered documents to the Rayburn House Office Building for review by Committee members for four hours, providing for no staff or photocopies.
Anne Gorsuch (Republican), Administrator of the Environmental Protection Agency	December 2, 1982 Oversight Subcommittee of the House Committee on Public Works and Transportation House Committee on Public Works and Transportation	House of Representatives	After legal cases and a court dismissal of the Executive Branch's suit, the parties reached an agreement to provide documents.
Rita Lavelle (Republican), EPA official	April 26, 1983 House Committee on Energy and Commerce	House of Representatives	Indicted for lying to Congress; convicted; sentenced to 6 months in prison, 5 years probation thereafter, and a fine of $10,000
Jack Quinn (Democrat), White House Counsel	May 9, 1996 House Committee on Oversight and Government Reform	Not considered	Subpoenaed documents were provided hours before the House of Representatives was set to consider the contempt citation.
David Watkins, White House Director of Administration Matthew Moore, White House aide
Janet Reno (Democrat), Attorney General	August 6, 1998 House Committee on Oversight and Government Reform	Not considered	Documents in question were revealed during the impeachment of President Clinton.
Harriet Miers (Republican), Former White House Counsel	July 25, 2007 House Committee on the Judiciary	February 14, 2008 House of Representatives	On March 4, 2009, Miers and former Deputy Chief of Staff to President Bush Karl Rove agreed to testify under oath before Congress about the firings of U.S. attorneys
Joshua Bolten (Republican), White House Chief of Staff
Eric Holder (Democrat), Attorney General	June 20, 2012 House Committee on Oversight and Government Reform	June 28, 2012 House of Representatives	Found in contempt by a vote of 255–67
Lois Lerner Director of the IRS Exempt Organizations Division	March 11, 2014 House Committee on Oversight and Government Reform	May 7, 2014 House of Representatives	Found in contempt for her role in the 2013 IRS controversy and refusal to testify. The Department of Justice has been directed by the House to appoint special counsel. (See: Finding Lois Lerner in contempt of Congress (H.Res. 574; 113th Congress))
Bryan Pagliano (Democrat) IT director, Hillary Clinton aide	September 13, 2016 House Committee on Oversight and Government Reform	Not considered	House Committee voted, 19–15, to recommend Pagliano for a contempt resolution for failing to appear during a September 13 and 22, 2016, hearing after being subpoenaed and submitting a written Fifth Amendment plea in lieu of appearing in person. No contempt resolution was considered by the chamber but Committee member Jason Chaffetz subsequently addressed a letter to the US Attorney General, writing as an individual member of Congress, requesting DOJ prosecution of Pagliano for misdemeanor "contumacious conduct."
Backpage.com	March 17, 2016 Senate Homeland Security Permanent Subcommittee on Investigations	March 17, 2016 Senate	Found in contempt for failing to provide documents in an investigation into human trafficking.
William P. Barr (Republican), Attorney General Wilbur Ross (Republican), United States Secretary of Commerce	House Committee on Oversight and Reform	July 17, 2019, House of Representatives.	Refusal to Comply with Subpoenas Duly Issued by the Committee on Oversight and Reform

Other legislatures in the U.S.

Various U.S. states have made similar actions against their own legislatures' violations of state criminal laws. Sometimes, those laws can even be applied to non-sovereign legislative bodies such as county legislatures and city councils.

See also

• Contempt of court
• The Hollywood Ten

External links

• "Congress's Contempt Power: Law, History, Practice, and Procedure" (PDF). Congressional Research Service. May 12, 2017.
• Zuckerman, Michael A. (2009). "The Court of Congressional Contempt" (PDF). Journal of Law and Politics. 25: 41–81. Archived from the original (PDF) on April 15, 2010.