July 26, 2007
Private: CRS Explains Congress's Contempt Powers
Yesterday, the House Judiciary Committee voted to issue contempt citations to White House Chief of Staff Joshua Bolten and former White House Counsel Harriet Miers.
The Congressional Research Service (CRS) issued a report Tuesday on Congress' inherent and statutory contempt powers. (The Report is available at the Federation of on the Federation of American Scientists web site.) The report explains:
The Department of Justice (DOJ) has taken the position that Congress cannot, as a matter of statutory or constitutional law, invoke either its inherent contempt authority or the criminal contempt of Congress procedures against an executive branch official acting on instructions by the President to assert executive privilege in response to a congressional subpoena.
INHERENT CONTEMPT POWER
Congress' inherent contempt power was first asserted in 1795. Although the inherent contempt power was historically used with some regularity, it has not been used since 1935 because inherent concept was viewed as "'unseemly', cumbersome, time-consuming, and relatively ineffective" and there was a statutory alternative enacted in 1857.
Under the inherent contempt power the individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned in the Capitol jail. The witness can be imprisoned for a specified period of time as punishment, or for an indefinite period . . . until he agrees to comply.
According to CRS, the inherent contempt power is uniquely characterized by "not requiring the cooperation or assistance of either the executive or judicial branches."
While it is true that the President can immunize persons from criminal prosecution, it does not appear that he has authority to immunize a witness from congressional inherent contempt proceeding. . . . A finding of inherent contempt against an executive branch official[] does not appear to be subject to the President’s Pardon power. . . .
Although the contemnor can seek judicial review by means of a petition for a writ of habeas corpus, the scope of such review may be relatively limited, compared to the plenary review accorded by the courts in cases of conviction under the criminal contempt statute.
The Report explains how the inherent contempt power could operate in a contemporary context:
Proceedings under the inherent contempt power might be facilitated, however, if the initial fact-finding and examination of witnesses were to be held before a special committee – which could be directed to submit findings and recommendations to the full body – with only the final decision as to guilt being made by the full House or Senate. . . .
[S]o long as the minimum protections of notice and opportunity to be heard are provided, the courts, it seems, will not interfere with Congress’s decisions regarding proper procedure.
STATUTORY CONTEMPT POWER
There are two kinds of statutory contempt power: criminal and civil. The criminal procedure is available to either House, while the civil procedure is available only to the Senate.
Criminal Contempt
The statutory criminal contempt procedure was enacted in 1857, and provides for judicial trial of the contemnor by a U. S. Attorney rather than at the bar of the Senate or House.
Supporters of the bill saw it as designed to give Congress “additional authority, and to impose additional penalties on a witness who fails to appear before an investigating committee of either House, or who, appearing, fails to answer any question.”
The Report notes that committees and subcommittees of the House of Representative have voted for contempt citations against numerous Executive Branch officials, including Secretary of State Henry Kissinger (1975); Secretary of Health, Education, and Welfare Joseph A. Califinao, Jr. (1978); Attorney General William French Smith (1983); White House Counsel John M. Quinn (1996); and Attorney General Janet Reno (1998).
In each instance but one, "a claim of executive privilege was asserted, and in each instance there was either full or substantial compliance with the demands of the committee that had issued the subpoena." The report adds that because of the punitive nature of statutory contempt, the President may be able to immunize persons from criminal prosecution and pardon a conviction.
Civil Contempt
The Civil Contempt of the Senate statute, enacted in 1978, grants
the U.S. District Court for the District of Columbia jurisdiction over a civil action to enforce, secure a declaratory judgment concerning the validity of, or to prevent a threatened failure or refusal to comply with, any subpoena or order issued by the Senate or a committee or subcommittee.
The Senate has authorized the Office of Senate Legal Counsel to seek civil enforcement of a document subpoena at least 6 times, the last in 1995.
As a side-note, then Assistant Attorney General Antonin Scalia argued against the Senate civil contempt statute before the Senate Committee on Governmental Operations, arguing that "weighing the legislature's need for information against the executive's need for confidentiality is 'the very type of 'political question' from which . . . the courts [should] abstain.'"
In any event, “the statute granting jurisdiction to the courts to hear such cases is, by its terms, inapplicable in the case of a subpoena issued to an officer or employee of the federal government acting in their official capacity.”