The current dispute between Democrats in the House of Representatives and Attorney General William Barr could result in contempt proceedings. So what contempt powers does Congress possess and can they be used against a member of the Executive Branch?
House Judiciary Committee Chairman Jerry Nadler is considering issuing a contempt citation against Barr if the Justice Department does not give his committee an unredacted version of the Mueller report. In turn, the Justice Department claims the House subpoena for the report does not serve a legitimate legislative purpose.
Based on precedent, statutes, and court rulings, the House and the Senate each have the power to invoke three types of contempt proceedings if a committee believes someone is obstructing its investigative powers.
The Congressional Research Service described each of these powers in a detailed March 2019 report. The first type of contempt power is a citation of criminal contempt of Congress. This power comes from a statute passed by Congress in 1857. Once a committee rules that an act of criminal contempt has occurred, the Speaker of the House or Senate President refers the matter to the appropriate U.S. attorney’s office, “whose duty it shall be to bring the matter before the grand jury for its action.” However, the Executive Branch in prior situations has claimed that it has the discretion to decide if a grand jury should be convened to hear the charges. But if the case goes to a grand jury, fines and a jail term could result from the ensuing criminal prosecution.
The second type of contempt power comes in the form of a civil lawsuit brought by the House or Senate, asking a court to enforce a subpoena. The Senate and its committees are authorized to bring such a lawsuit under a federal statute. There is no similar statute that applies in the House, but the federal district court in Washington, D.C. has decided that the House can nevertheless authorize its committees to bring a similar civil suit for enforcement of a subpoena. In either case, an executive branch member can contest the subpoena “based on a governmental privilege or objection the assertion of which has been authorized by the executive branch of the Federal Government,” the CRS said.
The third type of contempt power—Congress’s dormant inherent contempt power—is rarely used in modern times. Inherent contempt was the mode employed by Congress to directly enforce contempt rulings under its own constitutional authority until criminal and civil contempt statutes were passed, and it remained in use into the twentieth century. Under inherent contempt proceedings, the House or Senate has its Sergeant-At-Arms, or deputy, take a person into custody for proceedings to be held in Congress.
Although these powers are not directly stated in the Constitution, the Supreme Court has ruled on multiple occasions that they are implicit as an essential legislative power held by Congress.
Justice Willis Van Devanter made perhaps the most famous statement of these powers in McGrain v. Daugherty, a 1927 Supreme Court decision about Mally S. Daugherty, the brother of former Attorney General Harry Daugherty. A select Senate committee issued a subpoena for Daugherty to testify and to also surrender records from an Ohio bank. When Daugherty refused to comply after a second subpoena, the Senate passed a resolution issuing a warrant and authorizing a Senate deputy to take Daugherty into custody. Daugherty filed a habeas petition against his detention. A lower court ruled that the Senate exceeded its powers by detaining Daugherty, freeing him. However, the Supreme Court upheld his conviction, holding that under the Constitution, Congress has the power to compel witnesses and testimony “to obtain information in aid of the legislative function.”
“Each house of Congress has power, through its own process, to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution,” Van Devanter said. “This has support in long practice of the houses separately, and in repeated Acts of Congress, all amounting to a practical construction of the Constitution.”
Another interesting dispute over inherent contempt citations took place in 1917, when a House subcommittee had United States attorney H. Snowden Marshall cited for contempt because he used insulting language in a letter to Congress. After federal judge Learned Hand denied Marshall’s habeas petition, the Supreme Court said in Marshall v. Gordon that the letter’s language did not obstruct the subcommittee from performing its legislative duties and it ordered Marshall discharged from custody.
In recent battles between Congress and the Executive Branch over contempt charges, executive privilege claims originating from a presidential directive or a Justice Department decision to not convene a grand jury have stopped criminal contempt proceedings from advancing. Civil contempt cases involving the executive branch have remained in the court system for extended time periods.
In all, the House has brought four criminal contempt and three civil contempt actions against Executive Branch officials since 2008. In each instance of a criminal contempt citation, the executive branch declined to refer the charges to a grand jury.
In the three civil cases, the Congressional Research Service said “the committees involved eventually obtained much of the information sought through those lawsuits, but only after prolonged litigation.” For example, as of March 2019 the dispute over contempt charges in the “Operation Fast and Furious” subpoena involving President Obama’s Attorney General Eric Holder had still been pending resolution in court for six years.
If Attorney General Barr were to face a contempt citation, he would be the fourth Attorney General since 1980 to become involved in a contempt dispute with Congress. In addition to the Holder contempt citation filed by the House in 2012, a Senate committee filed a contempt citation against William French Smith in 1984 and a House committee took similar actions against Janet Reno in 1998. The Smith citation never gained full Senate approval, while Reno’s dispute ended when the 105th Congress concluded its session without acting on the committee’s recommendation of a contempt citation.
Scott Bomboy is the editor in chief of the National Constitution Center.