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 senator or 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 documents.

History

In the late 1790s, declaring contempt of Congress was considered an "implied power" of the legislature. Early Congresses issued contempt citations against numerous individuals for a variety of actions. Some early instances of contempt of Congress included citations against:

In 1821, the Supreme Court issued its decision in Anderson v. Dunn,[1] which 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."[2] 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 which made "contempt of Congress" a criminal offense against the United States.[3]

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,[4] the Congressional committee must meet three requirements for its subpoenas to be "legally sufficient." First, the committee 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[5] 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, the Courts tend to rule that such matters are "political questions" unsuitable for judicial remedy.

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 reasons, imprisonment for coercive effect, 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 the Vice-President of the United States, acting 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.[6]

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.[7][8]

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."[9]

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;[10] according to the law it is the "duty" of the U.S. Attorney to refer the matter to a grand jury for action.

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 less than $100 nor more than $1,000.[11]

While the law pronounces the duty of the U.S. Attorney is to impanel a grand jury for its action on the matter, some proponents of the unitary executive theory believe 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 himself. They believe 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 belief, 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 believe that, under Article II, the principal duty of the President is to execute the law; that, under Article I, the law is what the lawmaker—e.g. Congress, in the case of statutory contempt—says it is and 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); 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.

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; but the civil procedure can only be used against Executive branch officials "in certain limited circumstances."

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
David Watkins,
White House Director of Administration
Matthew Moore, White House aide		 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.
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
Joshua Bolten (Republican), White House Chief of Staff		 July 25, 2007
House Committee on the Judiciary[12]		 February 14, 2008
House of Representatives[13]		 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
Eric Holder (Democrat), Attorney General June 20, 2012
House Committee on Oversight and Government Reform[14]		 June 28, 2012
House of Representatives		 Found in contempt by a vote of 255-67[15][16]
Lois Lerner (Democrat), Director of the IRS Exempt Organizations Division March 11, 2014
House Committee on Oversight and Government Reform[17]		 May 7, 2014[18]
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 of the 2008 Clinton Campaign September 13, 2016
House Committee on Oversight and Government Reform[19]		 September 22, 2016[20]
House of Representatives		 Found in contempt by a vote of 19-15 for failing to appear during the September 13th and September 22nd hearing after being subpoenaed and subsequent refusal to testify.

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 like county legislatures and city councils.

See also

References

  1. ↑ 19 U.S. (6 Wheat.) 204 (1821)
  2. ↑ 19 U.S. (6 Wheat.) 228 (1821)
  3. ↑ Act of January 24, 1857, Ch. 19, sec. 1, 11 Stat. 155.
  4. ↑ 365 U.S. 399 (1961)
  5. ↑ 421 U.S. 491 (1975)
  6. ↑ William P. Mac Cracken, Jr. Papers
  7. ↑ 294 U.S. 125 (1935)
  8. ↑ This is the Statement of SEN. Patrick J. Leahy, Ranking Minority Member, before the Senate Judiciary Committee
  9. ↑ Askin, Frank (July 21, 2007). "Congress's Power To Compel". The Washington Post. Retrieved April 30, 2010.
  10. ↑ Eggen, Dan (April 11, 2007). "House Panel Issues First Subpoena Over Firings". The Washington Post.
  11. ↑ US CODE: Title 2,192. Refusal of witness to testify or produce papers
  12. ↑ Stout, David (July 25, 2007). "Panel Holds Two Bush Aides in Contempt". The New York Times. Retrieved July 26, 2007.
  13. ↑ "Final Vote Results for Roll Call 60". Clerk of the United States House of Representatives. February 14, 2008. Retrieved February 14, 2008.
  14. ↑ Perez, Evan (June 20, 2012). "House Panel Votes to Hold Holder in Contempt". Wall Street Journal. Retrieved June 20, 2012.
  15. ↑ "Final Vote Results for Roll Call 441". Clerk of the United States House of Representatives. June 28, 2012. Retrieved June 29, 2012.
  16. ↑ "Final Vote Results for Roll Call 442". Clerk of the United States House of Representatives. June 28, 2012. Retrieved June 29, 2012.
  17. ↑ http://oversight.house.gov/report/staff-report-lois-lerners-involvement-irs-targeting-tax-exempt-organizations/
  18. ↑ http://www.foxnews.com/politics/2014/05/07/house-votes-to-hold-lerner-in-contempt-congress/
  19. ↑ https://oversight.house.gov/hearing/examining-preservation-state-department-records/
  20. ↑ https://oversight.house.gov/hearing/examining-preservation-state-department-records-2/

External links

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