Legal Analysis

Some Are Suggesting Congress Use Its ‘Inherent Contempt’ Power — Here’s What That Means

As impeachment drama builds, and those in the Donald Trump inner circle continue to refuse to come before Congress, some are suggesting that Congress seek historical guidance on using its “inherent contempt power.” Mick Mulvaney, the acting White House chief of staff, and Rudy Giuliani, the president’s private attorney, have each refused to cooperate with the House Intelligence Committee investigation the president’s dealings with Ukraine. Congress could, for example, demand Mulvaney and Giuliani to testify– and even jail them for failing to comply with subpoenas.

Here’s how it all works.

Congress has three types of contempt power:

  1. Criminal Contempt: this comes from an 1857 statute passed by Congress. If a committee rules that an act of criminal contempt has occurred, the Speaker of the House or Senate President then refers the matter to the U.S. attorney for the corresponding jurisdiction. That U.S. attorney then heads to a grand jury and prosecutes as usual. The potential penalty is a fine up to $1,000 and up to 12 months imprisonment.
  2. Civil Contempt: This is how Congress can ask a court to enforce a subpoena by using a simple resolution and corresponding lawsuit. Under a federal statute, the Senate can bring a lawsuit for non-compliance. That same statute didn’t authorize the House to do the same, but a federal district court in Washington, D.C. decided that the House can do so to enforce a subpoena.
  3. “Inherent” Contempt power: This removes the judiciary as the middle man. Under the U.S. Constitution, and all powers implied thereby, Congress can directly enforce contempt rulings under its own authority. That’s what was used from the late 1700s until the federal statutes discussed above were passed. Use of this particular power hasn’t been en vogue for many decades, but it certainly still exists – and those impatient for a Trump impeachment are urging Congress to dust it off and set it to work again.

When using the inherent contempt power, the House or Senate not only presides over the proceedings, but also has its Sergeant-at-Arms, or deputy, take the subject individual into custody. If found guilty, the person may be detained or imprisoned until they cooperate with Congress’s demands.

According to the Congressional Research Service, the inherent contempt power is “broader in scope than the criminal contempt statute in that it may be used not only to combat subpoena non-compliance, but also in response to other actions that could be viewed as ‘obstructing’ or threatening either house’s exercise of its legislative powers.” There are, however, limits. Congress can only use its inherent contempt power to garner information, and not to punish:

Although the purpose of the detention may vary, for subpoena non-compliance the use of the power has generally not been punitive. Rather, the goal is to detain the witness until he or she discloses the information sought, but not beyond the end of the Congress.

Let’s take a walk down Contempt Lane, and look at the last time Congress used its inherent contempt power to imprison someone. In 1933, Hugo Black (then, a Democratic senator from Alabama; later, a Supreme Court justice) investigated airmail contracts awarded by the previous administration of Republican President Herbert Hoover. According to Black, secret meetings resulted in unfair distribution of federal airmail routes. It’s not exactly porn stars and and payoffs, but it was a simpler time.

William MacCracken Jr. was an aviation industry lawyer and lobbyist who refused to cooperate with the Senate investigation, claiming that he would not turn over documents that were protected by attorney-client privilege. During the Senate hearing, MacCracken revealed that there had been some seriously shady business going down with the airmail routes, and the committee unanimously voted to seize his records and arrest MacCracken. Chesley Jurney, the Senate Sergeant-at-Arms, held MacCracken in his office.

Additional drama ensued. Before it was over, MacCracken was found guilty of contempt in a separate proceeding by a D.C. judge, and served that sentence in a Washington hotel room. MacCracken also challenged the Senate’s contempt finding, arguing that the Senate had no right to jail him. When MacCracken’s claim made it before the Supreme Court, Justice Louis Brandeis smacked it down, writing that  Congress is “governed by the same principles as the power of the judiciary to punish for contempt.”

While much has changed since the Roosevelt Administration, there’s no reason to believe Congress’s inherent contempt power has shrunken at all. That power is derived directly from the Constitution, and while not used often, would certainly be available during impeachment proceedings.

Should Congress wish to take physical control over Mulvaney, Giuliani, or others with information directly relevant to the impeachment inquiry, it’d be well within its authority to do so. Obviously, such a dramatic move would cause unprecedented political fallout, and Democrats are worried such a move would be perceived as “arbitrary.”

[Image via Win McNamee/Getty Images]

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos

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