Contempt of Congress

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Contempt of Congress[1] 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.[2]

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:

In Anderson v. Dunn (1821),[6] 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."[6] 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.[7]

In the Air Mail Scandal of 1934 William MacCracken, former Assistant Secretary of Commerce for Aeronautics, was sentenced to ten days of detention for destroying evidence under subpoena. MacCracken appealed his sentence to the Supreme Court in Jurney v. MacCracken. After losing his case he surrendered to Chelsey Jurney, Senate sargeant at arms, who detained him in a room at the Willard Hotel.

While it has been said that "Congress is handcuffed in getting obstinate witnesses to comply",[8] cases have been referred to the United States Department of Justice.[9] The Office of Legal Counsel has asserted that the President of the United States is protected from contempt by executive privilege.[10][11]

Subpoenas

The Supreme Court affirmed in Watkins v. United States that "[the] power of the Congress to conduct investigations is inherent in the legislative process" and that "[it] is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to obtain the facts needed for intelligent legislative action. It is their unremitting obligation to respond to subpoenas, to respect the dignity of the Congress and its committees and to testify fully with respect to matters within the province of proper investigation."[12] 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 (1961),[13] 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 (1975)[14] 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.[15]

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).[16]

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.[17]

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.[18][19]

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;[20] 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 more than $100,000 or less than $100.[9]

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

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
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.
David Watkins,
White House Director of Administration
Matthew Moore, White House aide
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
July 25, 2007
House Committee on the Judiciary[21]
February 14, 2008 House of Representatives[22] 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
Joshua Bolten (Republican), White House Chief of Staff
Eric Holder (Democrat), Attorney General June 20, 2012
House Committee on Oversight and Government Reform[23]
June 28, 2012 House of Representatives Found in contempt by a vote of 255–67[24][25]
Lois Lerner
Director of the IRS Exempt Organizations Division
March 11, 2014
House Committee on Oversight and Government Reform[26]
May 7, 2014[27] 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, Hillary Clinton aide
September 13, 2016
House Committee on Oversight and Government Reform[28][29]
Not considered House Committee voted, 19–15, to recommend Pagliano for a contempt resolution for failing to appear during a September 13 and 22, 2016, hearing after being subpoenaed and submitting a written Fifth Amendment plea in lieu of appearing in person.[28][29][30] No contempt resolution was considered by the chamber but Committee member Jason Chaffetz subsequently addressed a letter to the US Attorney General, writing as an individual member of Congress, requesting DOJ prosecution of Pagliano for misdemeanor "contumacious conduct."[31]
Backpage.com March 17, 2016
Senate Homeland Security Permanent Subcommittee on Investigations
March 17, 2016[32] Senate Found in contempt for failing to provide documents in an investigation into human trafficking.
William P. Barr (Republican), United States Attorney General

Wilbur Ross (Republican), United States Secretary of Commerce

House Committee on Oversight and Reform July 17, 2019, House of Representatives[33] Refusal to Comply with Subpoenas Duly Issued by the Committee on Oversight and Reform
Donald Trump (Republican), President of the United States December 3, 2019
House Permanent Select Committee on Intelligence

December 4, 2019
House Committee on the Judiciary

December 18, 2019, House of Representatives[34] Impeached by the House of Representatives on Obstruction of Congress; acquitted by the Senate on February 5, 2020.
Chad Wolf (Republican), United States Secretary of Homeland Security September 17, 2020
House Homeland Security Committee
September 17, 2020, House of Representatives[35] Acting Homeland Secretary Chad Wolf defies subpoena and skips House hearing as he faces whistleblower allegations that he urged department officials to alter intelligence.

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.[citation needed]

See also

References

  1. ^ "Contempt of Congress". LII / Legal Information Institute. Retrieved January 21, 2020.
  2. ^ Congressional Research Service (December 27, 2007). "Obstruction of Congress: A Brief Overview of Federal Law Relating to Interference with Congressional Activities". EveryCRSReport.com. Retrieved December 19, 2019. Obstruction of justice is the impediment of governmental activities. There are a host of federal criminal laws that prohibit obstructions of justice. The six most general outlaw obstruction of judicial proceedings (18 U.S.C. 1503), witness tampering (18 U.S.C. 1512), witness retaliation (18 U.S.C. 1513), obstruction of congressional or administrative proceedings (18 U.S.C. 1505), conspiracy to defraud the United States (18 U.S.C. 371), and contempt (a creature of statute, rule and common law). All but Section 1503 cover congressional activities.
  3. ^ "The Case of Robert Randall and Charles Whitney, 28 December 1795–13 January 1796 (Editorial Note)".
  4. ^ "Senate Holds Editor in Contempt".
  5. ^ "PUNISHMENT OF WITNESSES FOR CONTEMPT".
  6. ^ a b "Anderson v. Dunn 19 U.S. 204 (1821)". justia.com. Retrieved May 18, 2017.
  7. ^ Act of January 24, 1857, Ch. 19, sec. 1, 11 Stat. 155.
  8. ^ Wright, Austin (May 15, 2017). "Why Flynn could easily beat his Senate subpoena". Politico. Retrieved May 17, 2017.
  9. ^ a b 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).
  10. ^ 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)
  11. ^ 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)
  12. ^ Warren, Earl (1957). "WATKINS v. UNITED STATES". United States Reports. 554: 576. Retrieved August 24, 2020.
  13. ^ "Wilkinson v. United States 365 U.S. 399 (1961)". justia.com. Retrieved May 18, 2017.
  14. ^ "Eastland v. United States Servicemen's Fund 421 U.S. 491 (1975)". justia.com. Retrieved May 18, 2017.
  15. ^ "Understanding Your Rights in Response to a Congressional Subpoena" (PDF). Retrieved April 24, 2019.
  16. ^ 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.
  17. ^ "William P. Mac Cracken, Jr. Papers". ecommcode2.com. Archived from the original on April 21, 2008. Retrieved May 18, 2017.
  18. ^ "Jurney v. MacCracken 294 U.S. 125 (1935)". justia.com. Retrieved May 18, 2017.
  19. ^ "This is the Statement of SEN. Patrick J. Leahy, Ranking Minority Member, before the Senate Judiciary Committee". senate.gov. Archived from the original on March 18, 2017. Retrieved May 18, 2017.
  20. ^ Eggen, Dan (April 11, 2007). "House Panel Issues First Subpoena Over Firings". The Washington Post.
  21. ^ Stout, David (July 25, 2007). "Panel Holds Two Bush Aides in Contempt". The New York Times. Retrieved July 26, 2007.
  22. ^ "Final Vote Results for Roll Call 60". Clerk of the United States House of Representatives. February 14, 2008. Retrieved February 14, 2008.
  23. ^ Perez, Evan (June 20, 2012). "House Panel Votes to Hold Holder in Contempt". Wall Street Journal. Retrieved June 20, 2012.
  24. ^ "Final Vote Results for Roll Call 441". Clerk of the United States House of Representatives. June 28, 2012. Retrieved June 29, 2012.
  25. ^ "Final Vote Results for Roll Call 442". Clerk of the United States House of Representatives. June 28, 2012. Retrieved June 29, 2012.
  26. ^ "Lois Lerner's Involvement in the IRS Targeting of Tax-Exempt Organizations". house.gov. United States House Committee on Oversight and Government Reform. Archived from the original on December 25, 2018. Retrieved May 18, 2017.
  27. ^ "House votes to hold Lerner in contempt of Congress". foxnews.com. May 7, 2014. Retrieved May 18, 2017.
  28. ^ a b 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.
  29. ^ a b "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.
  30. ^ "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.
  31. ^ "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.
  32. ^ "Homeland Security & Governmental Affairs Committee". www.hsgac.senate.gov. Retrieved May 18, 2017.
  33. ^ "Final Vote Results for Roll Call 489, Recommending that the House of Representatives find William P. Barr, Attorney General of the United States, and Wilbur L. Ross, Jr., Secretary of Commerce, In Contempt of Congress for Refusal to Comply with Subpoenas Duly Issued by the Committee on Oversight and Reform".
  34. ^ "Donald Trump impeached after historic vote". December 19, 2019. Retrieved December 24, 2019.
  35. ^ "Chad Wolf defies Subpoena impeached after historic vote". December 19, 2019. Retrieved December 24, 2019.

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