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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

This section contains weasel words: vague phrasing that often accompanies biased or unverifiable information. Such statements should be clarified or removed. (July 2008)

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

This section needs expansion. You can help by adding to it. (September 2010)

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

References

1. ^ "Anderson v. Dunn 19 U.S. 204 (1821)". justia.com. Retrieved May 18, 2017.
2. Act of January 24, 1857, Ch. 19, sec. 1, 11 Stat. 155.
3. Wright, Austin (May 15, 2017). "Why Flynn could easily beat his Senate subpoena". Politico. Retrieved May 17, 2017.
4. ^ Congressional Research Service Report RL34097, Congress's Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, Todd Garvey (May 12, 2017).
5. Memorandum for the Attorney General from Theodore Olson, Re: Prosecution for the Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. Off. Legal Counsel 101 (1984)
6. Memorandum for the Attorney General from Charles J. Cooper, Re: Response to Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act, 10 Op. Off. Legal Counsel 68 (1986)
7. "Wilkinson v. United States 365 U.S. 399 (1961)". justia.com. Retrieved May 18, 2017.
8. "Eastland v. United States Servicemen's Fund 421 U.S. 491 (1975)". justia.com. Retrieved May 18, 2017.
9. "Understanding Your Rights in Response to a Congressional Subpoena" (PDF). Retrieved April 24, 2019.
10. Garvey, Todd (May 12, 2017). "Congress's Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure" (PDF). Congressional Research Service. p. 10. Retrieved April 30, 2019.
11. "William P. Mac Cracken, Jr. Papers". ecommcode2.com. Archived from the original on April 21, 2008. Retrieved May 18, 2017.
12. "Jurney v. MacCracken 294 U.S. 125 (1935)". justia.com. Retrieved May 18, 2017.
13. "This is the Statement of SEN. Patrick J. Leahy, Ranking Minority Member, before the Senate Judiciary Committee". senate.gov. Retrieved May 18, 2017.
14. Askin, Frank (July 21, 2007). "Congress's Power To Compel". The Washington Post. Retrieved April 30, 2010.
15. Eggen, Dan (April 11, 2007). "House Panel Issues First Subpoena Over Firings". The Washington Post.
16. Stout, David (July 25, 2007). "Panel Holds Two Bush Aides in Contempt". The New York Times. Retrieved July 26, 2007.
17. "Final Vote Results for Roll Call 60". Clerk of the United States House of Representatives. February 14, 2008. Retrieved February 14, 2008.
18. Perez, Evan (June 20, 2012). "House Panel Votes to Hold Holder in Contempt". Wall Street Journal. Retrieved June 20, 2012.
19. "Final Vote Results for Roll Call 441". Clerk of the United States House of Representatives. June 28, 2012. Retrieved June 29, 2012.
20. "Final Vote Results for Roll Call 442". Clerk of the United States House of Representatives. June 28, 2012. Retrieved June 29, 2012.
21. "Lois Lerner's Involvement in the IRS Targeting of Tax-Exempt Organizations". house.gov. United States House Committee on Oversight and Government Reform. Retrieved May 18, 2017.
22. "House votes to hold Lerner in contempt of Congress". foxnews.com. May 7, 2014. Retrieved May 18, 2017.
23. ^ Gerstein, Josh. "House panel votes to hold Clinton tech aide Bryan Pagliano in contempt". Politico. Archived from the original on October 19, 2018. Retrieved November 17, 2018.
24. ^ "Examining Preservation of State Department Records". oversight.house.gov. United States House Committee on Oversight and Government Reform. Archived from the original on September 21, 2018. Retrieved May 18, 2017. In the event Mr. Pagliano fails to appear, the Committee will consider the following: Resolution and Report recommending that the House of Representatives find Bryan Pagliano in Contempt of Congress for Refusal to Comply with a Subpoena Duly Issued by the Committee on Oversight and Government Reform.
25. "Examining Preservation of State Department Federal Records". oversight.house.gov. United States House Committee on Oversight and Government Reform. Archived from the original on September 22, 2018. Retrieved May 18, 2017.
26. "Chaffetz Asks Justice Department to Uphold Institutional Interests of Congress" (Press release). United States House Committee on Oversight and Government Reform. February 17, 2017. Archived from the original on October 5, 2018. Retrieved November 17, 2018. Archived letter.
27. "Homeland Security & Governmental Affairs Committee". www.hsgac.senate.gov. Retrieved May 18, 2017.

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.

• Legislative branch of the United States government
• United States law