Order Code RL34097
Congress’s Contempt Power: Law, History,
Practice, and Procedure
Updated April 15, 2008
Morton Rosenberg
Specialist in American Public Law
American Law Division
Todd B. Tatelman
Legislative Attorney
American Law Division
Congress’s Contempt Power: Law, History, Practice,
and Procedure
and the
Enforcement of Congressional Subpoenas:
Law, History, Practice, and Procedure
Todd Garvey
Legislative Attorney
Alissa M. Dolan
Legislative Attorney
May 8, 2012
Congressional Research Service
7-5700
www.crs.gov
RL34097
CRS Report for Congress
Prepared for Members and Committees of Congress
Congress’s Contempt Power and the Enforcement of Congressional Subpoenas
Summary
Congress’s contempt power is the means by which Congress responds to certain
acts that in its
view obstruct the legislative process. Contempt may be used either to
coerce compliance (inherent contempt), punish , punish
the contemnor, (criminal contempt),
and/or to remove the obstruction (civil contempt). Although arguably any action that
directly directly
obstructs the effort of Congress to exercise its constitutional powers may
constitute a contempt, in the last seventy years the contempt power (primarily
through the criminal contempt process) has generally been employed only in
instances of refusals of witnesses to appear before committees, to respond to
questions, or to produce documents.
This report examines the source of the contempt power, reviews the historical
development of the early case law, outlines the statutory and common law basis for
Congress’s contempt power, and analyzes the procedures associated with each of the
three different types of contempt proceedings. In addition, the report discusses
limitations both nonconstitutional and constitutionally based on the power. Finally,
the report discusses the recent investigation by the House Judiciary Committee that
has resulted in votes for criminal contempt of Congress and the filing of a civil
lawsuit to enforce congressional subpoenas.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Congress’s Power to Investigate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Early History of Congressional Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Inherent Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Inherent Contempt Proceedings By Committees of Congress . . . . . . . . . . . 15
Statutory Criminal Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
The Position of the Department of Justice on the Use of Inherent
and/or Criminal Contempt of Congress Against the
Executive Branch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Civil Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Civil Contempt in the Senate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Civil Contempt in the House of Representatives . . . . . . . . . . . . . . . . . 37
Non-Constitutional Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Authorization and Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Legislative Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Pertinency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Willfulness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Other Procedural Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Attorney-Client Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Work Product Immunity and Other Common Law Testimonial
Privileges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Constitutional Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Fourth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Fifth Amendment Privilege Against Self-Incrimination . . . . . . . . . . . 62
Fifth Amendment Due Process Rights . . . . . . . . . . . . . . . . . . . . . . . . . 65
Recent Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Congress’s Contempt Power: Law, History,
Practice, and Procedure
Introduction
Congress's contempt power is the means by which Congress responds to certain
acts that in its view obstruct the legislative process. Contempt may be used either to
coerce compliance, punish the contemnor, and/or to remove the obstruction.1
Although arguably any action that directly obstructs the effort of Congress to exercise
its constitutional powers may constitute a contempt,2 in the last seventy years the
contempt power has generally been employed only in instances of refusals of
witnesses to appear before committees, to respond to questions, or to produce
documents.3
This report examines the source of the contempt power, reviews the historical
development of the early case law, outlines the statutory, common law, and
constitutional limitations on the contempt power, and analyzes the procedures
associated with each of the three different types of contempt proceedings (inherent
contempt, statutory criminal contempt, and statutory civil contempt).4
1
See generally, RONALD L. GOLDFARB, THE CONTEMPT POWER (2d ed., Anchor Books
1971).
2
Compare Jurney v. MacCracken, 294 U.S. 125 (destruction of documentary evidence
which had been subpoenaed by a committee of Congress can constitute contempt) with
Marshall v. Gordon, 243 U.S. 521 (1917) (publication by U.S. Attorney of letter critical of
Congress could not constitute contempt because it did not directly obstruct the legislative
process). The Jurney decision also upheld the use of the inherent contempt power to punish
a past contempt, even where removal of the obstruction to the legislative process was no
longer possible. See Jurney, 294 U.S. at 147-48, 150.
3
However, in two cases, defendants entered pleas of nolo contendere to the statutory
offense of contempt, a misdemeanor, rather than stand trial for perjury, a felony. United
States v. Helms, Cr. No. 77-650 (D.D.C. 1977); United States v. Kleindienst, Cr. No. 74-256
(D.D.C. 1974); see also Prosecution of Contempt of Congress, Hearing before the
Subcommittee on Administrative Law and Governmental Relations of the House Judiciary
Committee on H.R. 2684 and H.R. 3456, 98th Cong., 1st Sess., 29 (1983) (prepared
statement of Stanley Brand, former Counsel to the Clerk of the House).
4
The three types of contempt, and the procedures associated with them, are discussed in
more detail below. See infra at 12 (inherent contempt), 20 (criminal contempt), & 33 (civil
contempt). It is noted that a witness who refuses to testify before a committee, or who
provides a committee with false or misleading testimony, can potentially be prosecuted
under other criminal provisions, including 18 U.S.C. § 1001 (false statements), 18 U.S.C.
§ 1621 (perjury), and 18 U.S.C. § 1505 (obstruction of committee proceedings). A detailed
discussion of those offenses, however, is beyond the scope of this report. See generally,
JAMES HAMILTON, THE POWER TO PROBE: A STUDY OF CONGRESSIONAL INVESTIGATIONS,
(continued...)
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Congress’s Power to Investigate
The power of Congress to punish for contempt is inextricably related to the
power of Congress to investigate.5 Generally speaking, Congress’s authority to
investigate and obtain information, including but not limited to confidential
information, is extremely broad. While there is no express provision of the
Constitution or specific statute authorizing the conduct of congressional oversight or
investigations, the Supreme Court has firmly established that such power is essential
to the legislative function as to be implied from the general vesting of legislative
powers in Congress.6 The broad legislative authority to seek and enforce
informational demands was unequivocally established in two Supreme Court rulings
arising out of the 1920’s Teapot Dome scandal.
In McGrain v. Daugherty,7 which arose out of the exercise of the Senate’s
inherent contempt power, the Supreme Court described the power of inquiry, with
the accompanying process to enforce it, as “an essential and appropriate auxiliary to
the legislative function.” The Court explained:
A legislative body cannot legislate wisely or effectively in the absence of
information respecting the conditions which the legislation is intended to affect
or change; and where the legislative body does not itself possess the requisite
information – which not infrequently is true – recourse must be had to others
who possess it. Experience has taught that mere requests for such information
often are unavailing, and also that information which is volunteered is not always
accurate or complete; so some means of compulsion are essential to obtain that
which is needed. All this was true before and when the Constitution was framed
and adopted. In that period the power of inquiry – with enforcing process – was
regarded and employed as a necessary and appropriate attribute of the power to
legislate – indeed, was treated as inhering in it. Thus there is ample warrant for
thinking, as we do, that the constitutional provisions which commit the
legislative function to the two houses are intended to include this attribute to the
end that the function may be effectively exercised.8
In Sinclair v. United States,9 a different witness at the congressional hearings
refused to provide answers, and was prosecuted for contempt of Congress. The
witness had noted that a lawsuit had been commenced between the government and
the Mammoth Oil Company, and declared, “I shall reserve any evidence I may be
4
(...continued)
78 (1976).
5
See generally, Allen B. Moreland, Congressional Investigations and Private Persons, 40
SO. CAL. L. REV. 189 (1967).
6
See, e.g., Nixon v. Administrator of General Services, 433 U.S. 435 (1977); Eastland v.
United States Servicemen's Fund, 421 U.S. 491 (1975); Barnblatt v. United States, 360 U.S.
109 (1959); Watkins v. United States, 354 U.S. 178 (1957); McGrain v. Daugherty, 273 U.S.
135 (1927).
7
273 U.S. 135, 174-75 (1927).
8
Id.
9
279 U.S. 263 (1929).
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able to give for those courts ... and shall respectfully decline to answer any questions
propounded by your committee.”10 The Supreme Court upheld the witness’s
conviction for contempt of Congress. The Court considered and rejected in
unequivocal terms the witness’s contention that the pendency of lawsuits provided
an excuse for withholding information. Neither the laws directing that such lawsuits
be instituted, nor the lawsuits themselves, “operated to divest the Senate, or the
committee, of power further to investigate the actual administration of the land
laws.”11 The Court further explained that
[i]t may be conceded that Congress is without authority to compel disclosure for
the purpose of aiding the prosecution of pending suits; but the authority of that
body, directly or through its committees to require pertinent disclosures in aid of
its own constitutional power is not abridged because the information sought to
be elicited may also be of use in such suits.12
Subsequent Supreme Court rulings have consistently reiterated and reinforced
the breadth of Congress’s investigative authority. For example, in Eastland v.
United States Servicemen’s Fund, the Court explained that “[t]he scope of
[Congress’s] power of inquiry ... is as penetrating and far-reaching as the potential
power to enact and appropriate under the Constitution.”13 In addition, the Court in
Watkins v. United States, described the breadth of the power of inquiry. According
to the Court, Congress’s power “to conduct investigations is inherent in the
legislative process. That power is broad. It encompasses inquiries concerning the
administration of existing laws as well as proposed or possibly needed statutes.”14
The Court did not limit the power of congressional inquiry to cases of “wrongdoing.”
It emphasized, however, that Congress’s investigative power is at its peak when the
subject is alleged waste, fraud, abuse, or maladministration within a government
department. The investigative power, the Court stated, “comprehends probes into
departments of the Federal Government to expose corruption, inefficiency, or
waste.”15 “[T]he first Congresses,” held “inquiries dealing with suspected corruption
or mismanagement by government officials”16 and subsequently, in a series of
decisions, “[t]he Court recognized the danger to effective and honest conduct of the
Government if the legislative power to probe corruption in the Executive Branch
were unduly hampered.”17 Accordingly, the Court now clearly recognizes “the power
10
Id. at 290.
11
Id. at 295.
12
Id.
13
421 U.S. 491, 504, n. 15 (1975) (quoting Barenblatt v. United States, 360 U.S. 109, 111
(1960)).
14
354 U.S. 178, 187 (1957).
15
Id.
16
Id. at 182.
17
Id. at 194-95
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of the Congress to inquire into and publicize corruption, maladministration, or
inefficiencies in the agencies of Government.”18
The inherent contempt power is not specified in a statute or constitutional
provision, but has been deemed implicit in the Constitution's grant to Congress of all
legislative powers. In an inherent contempt proceeding, the offender is tried at the
bar of the House or Senate and can be held in custody until such time as the
contemnor provides the testimony or documents sought, or until the end of the
session. Inherent contempt was most often used as a means of coercion, not
punishment. A statutory criminal contempt provision was first enacted by Congress
in 1857, in part because of the inadequacies of proceedings under the inherent power.
In cases of criminal contempt, the offender is cited by the subcommittee, the
committee, and the full House or Senate, with subsequent indictment by a grand jury
and prosecution by the U.S. Attorney. Criminal contempt, unlike inherent contempt,
is intended as a means of punishing the contemnor for non-compliance rather than
to obtain the information sought. A statutory civil contempt procedure, applicable
only to the Senate, was enacted in 1978. Under that procedure, a witness, who
refuses to testify before a Senate committee or provide documents sought by the
committee can, after being served with a court order, be held in contempt of court
and incarcerated until he agrees to testify. Moreover, the House and Senate have
authorized standing or special committees to seek civil enforcement of subpoenas.19
Early History of Congressional Contempt
While the contempt power was exercised both by the English Parliament20 and
by the American colonial assemblies,21 Congress’s first assertion of its contempt
authority occurred in 1795, shortly after the ratification of the Constitution. At the
18
Id. at 200 n. 33; see also Morrison v. Olson, 487 U.S. 654, 694 (1988) (noting that
Congress’s role under the Independent Counsel Act “of receiving reports or other
information and oversight of the independent counsel’s activities ... [are] functions we have
recognized as being incidental to the legislative function of Congress”) (citing McGrain v.
Daugherty, 273 U.S. 135 (1927)).
19
See, e.g., S.Res. 60 & S.Res. 194, 93d Cong., (1973) (Senate Select Committees on
Watergate); H.Res. 60, 97th Cong., (1981) (ABSCAM); H.Res. 12, 100th Cong. (1987)
(House Iran–Contra); S.Res. 23, 100th Cong. (1987) (Senate Iran–Contra); H.Res. 463, 105th
Cong., (1998) (Select Committee on National Security Commercial Concerns); see also
H.Res. 1420, 94th Cong. 2d Sess. (1976) (authorizing the Chairman of the House Interstate
and Foreign Commerce Subcommittee on Oversight and Investigations to intervene in
United States v. American Telephone & Telegraph, 419 F. Supp. 454 (D.D.C. 1976));
H.Res. 899, 121 CONG. REC. 918-19 (1975) (authorizing the Chairman of the House
Interstate and Foreign Commerce Subcommittee on Oversight and Investigations to
intervene in Ashland Oil Inc., v. FTC, 409 F. Supp. 297, 307 (D.D.C. 1976)).
20
MAY’S TREATISE ON THE LAW, PRIVILEGES, PROCEEDINGS AND USAGE OF PARLIAMENT,
141-42 (17th ed . 1964).
21
MARY PATTERSON CLARKE, PARLIAMENTARY PRIVILEGE IN THE AMERICAN COLONIES
(1971); see also CARL BECK, CONTEMPT OF CONGRESS: A STUDY OF THE PROSECUTIONS
INITIATED BY THE COMMITTEE ON UN-AMERICAN ACTIVITIES, 1945-1957 (1959)
[hereinafter Beck].
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time, three Members of the House of Representatives reported that they had been
offered what they interpreted to be a bribe by men named Robert Randall and Charles
Whitney.22 The House of Representatives interpreted these allegations as sufficient
evidence of an attempt to corrupt its proceedings and reported a resolution ordering
their arrest and detention by the Sergeant-at-Arms, pending further action by the
House.23 The matter was then referred to a special Committee on Privileges which
reported out a resolution recommending that formal proceedings be instituted against
Messrs. Randall and Whitney at the bar of the House.24 In addition, the resolution
provided that the accused be questioned by written interrogatories submitted by the
Speaker of the House with both the questions and the answers entered into the House
minutes.25 The resolution also provided that individual Members could submit
written questions to the accused.26
Upon adopting the resolution and after considerable debate, the House
determined that the following procedures be adhered to: First, the complaining
Members were to submit a written signed information to the accused and for
publication in the House Journal. In addition, the accused were to be provided
counsel, the right to call witnesses on their behalf, the right to cross-examination of
the complaining Members through written questions submitted to the Speaker, and
adequate time to prepare a defense.27 A proceeding was held at the bar of the House,
and on January 4, 1796, the House, by a vote of 78-17, adopted a resolution finding
Mr. Randall guilty of “a contempt to, and a breach of the privileges of, this House by
attempting to corrupt the integrity of its Members in the manner laid to his charge.”28
The House ordered Mr. Randall to be brought to the bar, reprimanded by the Speaker,
and held in custody until further resolution of the House.29 Mr. Randall was detained
until January 13, 1796, when he was discharged by House resolution. Mr. Whitney,
on the other hand, was absolved of any wrongdoing as the House determined that his
actions were against a “member-elect,” and had taken place “away from the seat of
government.”30
22
2 ASHER C. HINDS, PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, § 1599 (1907)
[hereinafter Hinds’ Precedents]. According to the records, Messrs. Randall and Whitney
allegedly offered three Members emoluments and money in exchange for the passage of a
law granting Randall and his associates some 18-20 million acres of land bordering Lake
Erie. See id.
23
Id.
24
Id. at § 1600.
25
Id.
26
Id.
27
Id. at §§ 1601-1602. The proceedings appear to have been delayed from December 30,
1795 to January 4, 1796, at the request of Randall and his counsel. Id.
28
Id. at § 1603.
29
Id.
30
Id.
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Of additional significance is the fact that the records indicate that almost no
question was raised with respect to the power of Congress to punish a non-Member
for contempt. According to one commentator, who noted that many of the Members
of the early Congress were also members of the Constitutional Convention and, thus,
fully aware of the legislative practices of the time, it was “substantially agreed that
the grant of the legislative power to Congress carried with it by implication the power
to punish for contempt.”31
Four years later, the Senate exercised its contempt power against William
Duane, who, as editor of the Aurora newspaper, was charged with the publication of
a libelous article concerning the Senate and one of its committees. Mr. Duane was
ordered by Senate resolution to appear before the bar of the Senate and “make any
proper defense for his conduct in publishing the aforesaid false, defamatory,
scandalous, and malicious assertions and pretended information.”32 At his initial
appearance before the Senate, Mr. Duane requested, and was granted, the assistance
of counsel and ordered to appear again two days later.33 Instead of appearing before
the Senate as ordered, Mr. Duane submitted a letter indicating he did not believe he
could receive a fair trial before the Senate.34 Mr. Duane was subsequently held in
contempt of the Senate for his failure to appear, not for his alleged libelous and
defamatory publications.35 As a result, he was held in the custody of the Senate for
several weeks before the Senate, by resolution, instructed that he be released and
tried by the courts.36
The Senate’s contempt of Mr. Duane generated considerably more debate
concerning Congress’s contempt authority. A majority of Senators argued that the
Senate’s contempt power was an inherent right of legislative bodies, derived not
specifically from the Constitution, but rather from “the principle of self-preservation,
which results to every public body from necessity and from the nature of the case.”37
Moreover, Senators supportive of this position argued that their reasoning was firmly
supported by English and colonial practices, as well as the practice of the state
legislatures. Finally, the majority asserted that if Congress did not possess a
31
C.S. Potts, Power of Legislative Bodies to Punish for Contempt, 74 U. PENN. L. REV. 691,
720 (1926).
32
2 Hinds’ Precedents, supra note 22 at § 1604.
33
Id.
34
Id.
35
Id. The Senate voted 16-11 to hold Mr. Duane in contempt. Id.
36
Id. The records indicate that Mr. Duane was held in contempt of the Senate on March 27,
1800, and released by resolution adopted on May 14, 1800, the last day of the session, by
a vote of 13-4. Id.
37
Senate Proceedings, 6th Cong. 1799-1801 86 (March 5, 1800); see also Constitution,
Jefferson’s Manual, and the Rules of the House of Representatives, H.R. Doc. 108-241,
108th Cong., 2d Sess., §§ 297-299 (2005) [hereinafter Jefferson’s Manual]
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contempt power it would be vulnerable to the disruption of its proceedings by outside
intruders.38
While the Senate’s exercise of its contempt power was not without precedent,
many Senators disputed these claims, arguing that all powers sought to be exercised
by Congress must be specifically derived from the Constitution; that because the
contempt power is not among the enumerated powers given to Congress, the power
is reserved to the states and the people. In addition, the minority argued that
Congress, unlike the English Parliament or state legislatures, was intentionally not
granted the plenary powers of sovereignty by the Constitution and, thus, could not
claim any inherent right to self-preservation.39 As an alternative, the minority
proposed that Congress, which has the power to “make all laws which shall be
necessary and proper for carrying into execution the foregoing powers”40 had
sufficient authority to enact a statute that would protect the integrity of its
proceedings.41 Moreover, the minority argued that disruptions of congressional
proceedings would continue to be subject to the criminal laws.42
After Mr. Duane’s contempt by the Senate, it appeared that the subject of the
Congress’s inherent contempt power was settled. The authority, however, was not
used again for another 12 years. In 1812, the House issued a contempt resolution
against Mr. Nathaniel Rounsavell, who had refused to answer a select committee’s
questions concerning which Representative had given him information regarding
secret sessions.43 However, before Mr. Rounsavell was brought before the bar of the
House a Member admitted his indiscretion and the matter was not pursued.44
Congress’s inherent contempt power was not used again until 1818, where it
eventually made its way to the Supreme Court for adjudication.
Anderson v. Dunn. In 1821, the Supreme Court was faced with interpreting
the scope of Congress’s contempt power.45 The case arose when Representative
Louis Williams of North Carolina introduced a letter before the House from a John
Anderson, which Representative Williams interpreted as an attempt to bribe him.46
Following its 1795 precedent, the House adopted a resolution ordering the Sergeantat-Arms to arrest Mr. Anderson bring him before the bar of the House. Upon Mr.
Anderson’s arrest, however, a debate erupted on the floor of the House as the motion
38
See id.
39
Id. at § 298
40
U.S. CONST. Art. 1, § 8, cl.18.
41
Jefferson’s Manual, supra note 37 at § 298.
42
See id.
43
See Beck, supra note 21 at 192.
44
Id.
45
Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821).
46
See 2 Hinds’ Precedent, supra note 22 at § 1606. The letter offered Representative
Williams $500 as “part pay for extra trouble” with respect to furthering the claims of Mr.
Anderson with respect to the River Raisin. Id.
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for referral to the Committee on Privileges to adopt procedures was considered.
Several Members objected to the House’s assertion of an inherent contempt power.
They argued, as the minority Senators had in Mr. Duane’s contempt, that neither the
Constitution nor the general laws afforded the Congress such an inherent power to
punish for actions that occurred elsewhere.47 Relying on the 1795 precedent and
examples from the British Parliament and state legislatures, the Committee was
formed and it adopted a resolution requiring Mr. Anderson to be brought before the
bar of the House for questioning by the Speaker.48 At his appearance, Mr. Anderson,
like Mr. Randall and Mr. Whitney before him, was afforded counsel and permitted
to present the testimony of eleven witnesses. Ultimately, Mr. Anderson was found
in contempt of Congress and was ordered to be reprimanded by the Speaker for the
“outrage he committed” and discharged into the custody of the Sergeant-at-Arms.49
Mr. Anderson subsequently filed suit against Mr. Thomas Dunn, the Sergeantat-Arms of the House, alleging assault, battery, and false imprisonment. Mr. Dunn
responded by asserting that he was carrying out the lawful orders of the House of
Representatives. The Supreme Court heard the case in February of 1821 and
concluded that the Congress possessed the inherent authority to punish for contempt
and dismissed the charges against Mr. Dunn.50 The Court noted that while the
Constitution does not explicitly grant either House of Congress the authority to
punish for contempt, except in situations involving its own Members, such a power
is necessary for Congress to protect itself. The Court asserted that if the House of
Representatives did not possess the power of contempt it would “be exposed to every
indignity and interruption, that rudeness, caprice, or even conspiracy, may meditate
against it.”51
The Court’s decision in Anderson does not define the specific actions that would
constitute contempt; rather, it adopted a deferential posture, noting that
it is only necessary to observe that there is nothing on the facts of the record from
which it can appear on what evidence the warrant was issued and we do not
presume that the House of Representatives would have issued it without fully
establishing the facts charged on the individual.52
The Anderson decision indicates that Congress’s contempt power is centered on
those actions committed in its presence that obstruct its deliberative proceedings.
The Court noted that Congress could supplement this power to punish for contempt
47
Id.
48
Id.
49
Id.
50
Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821).
51
Id. at 228.
52
Id. at 234.
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committed in its presence by enacting a statute, which would prohibit “all other
insults which there is any necessity for providing.”53
The Court in Anderson also endorsed the existing parliamentary practice that the
contemnor could not be held beyond the end of the legislative session.54 According
to the Court,
[s]ince the existence of the power that imprisons is indispensable to its
continuance, and although the legislative power continues perpetual, the
legislative body ceases to exist, on the moment of its adjournment or periodical
dissolution.
It follows, that imprisonment must terminate with that
55
adjournment.
Since Anderson was decided there has been an unresolved question as to
whether this rule would apply with equal force to a contempt by the Senate, since it
is considered a “continuing body.”56 The Senate, it appears, has only addressed this
issue once, in 1871, regarding the contempt of two recalcitrant witnesses, Z.L. White
and H.J. Ramsdell.57 During these contempt proceedings, the Senate found itself near
the end of a session and the question arose as to whether the Senate’s acquiescence
to the Anderson rule would provide adequate punishment. After vigorous debate, the
Senate instructed the Sergeant-at-Arms to release the prisoners immediately upon the
final adjournment of the Congress.58 The House, however, has imprisoned a
contemnor for a period that extended beyond the adjournment of a Congress. Patrick
Wood was sentenced by the House to a three-month term in jail for assaulting
Representative Charles H. Porter.59 Although there is no doubt that Mr. Woods’s
period of incarceration extended beyond the date of adjournment, it was not
challenged and, therefore, there is no judicial opinion addressing the issue.
Kilbourn v. Thompson. In 1876, the House established a select committee
to investigate the collapse of Jay Cooke & Company, a real estate pool in which the
United States had suffered losses as a creditor.60 The committee was, by resolution,
53
Id. at 228.
54
See 2 Hinds’ Precedent, supra note 22 at § 1604 (noting that Mr. Duane, who had been
held in contempt by the Senate, was released from custody on the last day of the legislative
session).
55
Anderson, 19 U.S. (6 Wheat.) at 231.
56
Unlike the House, whose entire membership stands for election every two years, only onethird of the Senate is elected each Congress.
57
Allen B. Moreland, Congressional Investigations and Private Persons, 40 SO. CAL. L.
REV. 189, 199, n. 31 (1967) [hereinafter Moreland].
58
Id.
59
See 2 Hinds’ Precedents, supra note 22 at §§ 1628-629.
60
See 2 Hinds’ Precedents, supra note 22 at § 1609. It should also be noted that the Speaker
also reported Mr. Kilbourn’s contempt to the District Attorney for the District of Columbia
pursuant to the 1857 criminal contempt statute. According to records, the District Attorney
(continued...)
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given the power to subpoena both persons and records pursuant to its investigation.
Acting under its authority, the committee issued a subpoena duces tecum to one
Hallet Kilbourn, the manager of the real estate pool. When Mr. Kilbourn refused to
produce certain papers or answer questions before the committee he was arrested and
tried under the House’s inherent contempt power. The House adjudged Mr. Kilbourn
in contempt and ordered him detained by the Sergeant-at-Arms until he purged
himself of contempt by releasing the requested documents and answering the
committee’s questions.61
Mr. Kilbourn filed a suit against the Speaker, the members of the committee,
and the Sergeant-at-Arms for false arrest. The lower court held in favor of the
defendant dismissing the suit. Mr. Kilbourn appealed, and the Supreme Court
reversed, holding that Congress did not have a general power to punish for
contempt.62 While the Court appeared to recognize that Congress possessed an
inherent contempt power, it declined to follow Anderson v. Dunn’s expansive view
of Congress’s authority. Moreover, the Court rejected any reliance on the English
and colonial precedents establishing the source and extent of Congress’s contempt
power. The Court stated that
[w]e are of opinion that the right of the House of Representatives to punish the
citizen for a contempt of its authority or a breach of its privileges can derive no
support from the precedents and practices of the two Houses of the English
Parliament, nor from the adjudged cases in which the English courts have upheld
these practices. Nor, taking what has fallen from the English judges, and
especially the later cases on which we have just commented, is much aid given
60
(...continued)
presented the case to a grand jury and received an indictment for five counts of contempt.
The District Attorney requested the Mr. Kilbourn be turned over to his custody for trial. The
House, however, after considerable debate, adopted a resolution instructing the Sergeant-atArms not to release Mr. Kilbourn. See 4 CONG. REC. 2483-2500, 2513-2532 (Apr. 15-16
1876). Although the Supreme Court later indicated, in the case of In re Chapman, 166 U.S.
661, 672 (1897), that the double jeopardy clause of the Constitution would not prohibit a
criminal prosecution of a witness for contempt of Congress after he had been tried at the bar
of the House under the inherent contempt power, subsequent developments in the
interpretation of the double jeopardy clause suggest that this aspect of the Chapman decision
is no longer good law. See Grafton v. United States, 206 U.S. 333 (1907); Waller v. Florida,
397 U.S. 387 (1970); Columbo v. New York, 405 U.S. 9 (1972). However, it appears that
where the sanction imposed pursuant to the inherent contempt power is intended to be
purely coercive and not punitive, a subsequent criminal prosecution would be permissible
since the double jeopardy clause bars only dual criminal prosecutions. See S.Rept. No.
95-170, 95th Cong., 1st Sess., 89 (1977) (stating that “[o]nce a committee investigation has
terminated, a criminal contempt of Congress citation under 2 U.S.C. § 192 might still be
referred to the Justice Department if the Congress finds this appropriate. Such prosecution
for criminal contempt would present no double jeopardy problem.”); see also Hearings
Before the Senate Committee on Governmental Affairs on S. 555, 95th Cong., 1st Sess.,
798-800 (1977).
61
See 2 Hinds’ Precedents, supra note 22 at § 1609.
62
Kilbourn v. Thompson, 103 U.S. 168, 189-90 (1881).
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to the doctrine, that this power exists as one necessary to enable either House of
Congress to exercise successfully their function of legislation.63
The Court held that the investigation into the real estate pool was not undertaken by
the committee pursuant to one of Congress’s constitutional responsibilities, but rather
was an attempt to pry into the personal finances of private individuals, a subject that
could not conceivably result in the enactment of valid legislation. According to the
Court, because Congress was acting beyond its constitutional responsibilities, Mr.
Kilbourn was not legally required to answer the questions asked of him. In short, the
Court held that
no person can be punished for contumacy as a witness before either House,
unless his testimony is required in a matter into which that House has jurisdiction
to inquire, and we feel equally sure that neither of these bodies possesses the
general power of making inquiry into the private affairs of the citizen.64
In addition, the Court indicated that the investigation violated the doctrine of
separation of powers because judicial bankruptcy proceedings were pending relating
to the collapse of the real estate pool and, therefore, it might be improper for
Congress to conduct an investigation that could interfere with the judicial
proceedings.65 The Court specifically challenged Congress’s assertion that there were
no other viable remedies available to the government to retrieve the lost funds.66
Thus, the Court concluded that
the resolution of the House of Representatives authorizing the investigation was
in excess of the power conferred on that body by the Constitution; that the
committee, therefore, had no lawful authority to require Kilbourn to testify as a
witness beyond what he voluntarily chose to tell; that the orders and resolutions
of the House, and the warrant of the speaker, under which Kilbourn was
imprisoned, are, in like manner, void for want of jurisdiction in that body, and
that his imprisonment was without any lawful authority.67
Finally, in dicta, the Court indicated that the contempt power might be upheld
where Congress was acting pursuant to certain specific constitutional prerogatives,
such as disciplining its Members, judging their elections, or conducting impeachment
proceedings.
Although the precedential value of Kilbourn has been significantly limited by
subsequent case law, the case continues to be cited for the proposition that the House
has no power to probe into private affairs, such as the personal finances of an
63
Id. at 189.
64
Id.
65
273 U.S. 135 (1927).
66
Id. at 194 (questioning “[h]ow could the House of Representatives know, until it had been
fairly tried, that the courts were powerless to redress the creditors of Jay Cooke & Co.? The
matter was still pending in a court, and what right had the Congress of the United States to
interfere with a suit pending in a court of competent jurisdiction?”).
67
Id. at 196.
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individual, on which legislation could not be enacted. The doubts raised by Kilbourn
about the scope of Congress’s contempt power have essentially been removed by
later cases sanctioning the use of the power in investigations conducted pursuant to
Congress’s authority to discipline its Members,68 to judge the elections of its
Members,69 and, most importantly, to probe the business and conduct of individuals
to the extent that the matters are subject to congressional regulation.70 For example,
in McGrain v. Daugherty, which involved a Senate investigation into the claimed
failure of the Attorney General to prosecute certain antitrust violations, a subpoena
was issued to the brother of the Attorney General, Mallie Daugherty, the president
of an Ohio bank. When Daugherty refused to comply, the Senate exercised its
inherent contempt power and ordered its Sergeant-at-Arms to take him into custody.
The grant of a writ of habeas corpus was appealed to the Supreme Court. The
Court’s opinion in the case considered the investigatory and contempt powers of
Congress to be implicit in the grant of legislative power.71 The Court distinguished
Kilbourn, which was an investigation into purely personal affairs, from the instant
case, which was a probe of the operation of the Department of Justice. According to
the Court, the subject was plainly “one on which legislation could be had and would
be materially aided by information the investigation was calculated to elicit.”72 The
Court in McGrain was willing to presume that the investigation had been undertaken
to assist the committee in its legislative efforts.73
Inherent Contempt
Congress’s inherent contempt power is not specifically granted by the
Constitution, but is considered necessary to investigate and legislate effectively. The
validity of the inherent contempt power was upheld in the early Supreme Court
decision in Anderson v. Dunn and reiterated in McGrain v. Daugherty. 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 purpose of the imprisonment or other sanction may be either punitive74 or
coercive.75 Thus, the witness can be imprisoned for a specified period of time as
punishment, or for an indefinite period (but not, at least by the House, beyond the end
68
In Re Chapman, 166 U.S. 661 (1897).
69
Barry v. United States ex rel Cunningham, 279 U.S. 597 (1929).
70
McGrain v. Daughery, 273 U.S. 135 (1927).
71
Id.
72
Id. at 177.
73
Id. at 177- 178; see also ICC v. Brimson, 154 U.S. 447 (1894). It has been said that
McGrain “very clearly removed the doubt [that had existed after Kilbourn v. Thompson] as
to whether Congress could force testimony in aid of legislation.” Moreland, supra note 57,
at 222. Although McGrain and Sinclair v. United States, 279 U.S. 263 (1929), involved
inquires into the activities of private individuals, there was a connection to property owned
by the United States and, therefore, it could not be said that purely personal affairs were the
subjects of the investigations.
74
Jurney v. MacCracken, 294 U.S. 125, 147 (1935).
75
McGrain v. Daugherty, 273 U.S. at 161.
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of a session of the Congress) until he agrees to comply. One commentator has
concluded that the procedure followed by the House in the contempt citation that was
at issue in Anderson v. Dunn is typical of that employed in the inherent contempt
cases.
These traditional methods may be explained by using as an illustration Anderson
v. Dunn. ... In 1818, a Member of the House of Representatives accused
Anderson, a non-Member, of trying to bribe him. ... The House adopted a
resolution pursuant to which the Speaker ordered the Sergeant-at-Arms to arrest
Anderson and bring him before the bar of the House (to answer the charge).
When Anderson appeared, the Speaker informed him why he had been brought
before the House and asked if he had any requests for assistance in answering the
charge. Anderson stated his requests, and the House granted him counsel,
compulsory process for defense witnesses, and a copy, of the accusatory letter.
Anderson called his witnesses; the House heard and questioned them and him.
It then passed a resolution finding him guilty of contempt and directing the
Speaker to reprimand him and then to discharge him from custody. The pattern
was thereby established of attachment by the Sergeant-at-Arms; appearance
before the bar; provision for specification of charges, identification of the
accuser, compulsory process, counsel, and a hearing; determination of guilt;
imposition of penalty.76
When a witness is cited for contempt under the inherent contempt process,
prompt judicial review appears to be available by means of a petition for a writ of
habeas corpus.77 In such a habeas proceeding, the issues decided by the court might
be limited to (a) whether the House or Senate acted in a manner within its
jurisdiction,78 and (b) whether the contempt proceedings complied with minimum
due process standards.79 While Congress would not have to afford a contemnor the
whole panoply of procedural rights available to a defendant in criminal proceedings,
notice and an opportunity to be heard would have to be granted.80 Also, some of the
requirements imposed by the courts under the statutory criminal contempt procedure
(e.g., pertinency of the question asked to the committee’s investigation) might be
mandated by the due process clause in the case of inherent contempt proceedings.81
Although many of the inherent contempt precedents have involved incarceration
of the contemnor, there may be an argument for the imposition of monetary fines as
76
Thomas L. Shriner, Jr., Legislative Contempt and Due Process: The Groppi Cases, 46
IND. L. J. 480, 491 (1971) [hereinafter Shriner].
77
See Marshall v. Gordon, 243 U.S. 521 (1917); see also United States v. Fort, 443 F.2d
670, 676 (D.C. Cir. 1970); Theodore Sky, Judicial Review of Congressional Investigations:
Is There an Alternative to Contempt, 31GEO. WASH. L. REV. 399, 400, n.3 (1962)
[hereinafter Sky].
78
Jurney v. MacCracken, 294 U.S. 125, 147 (1935); see also Kilbourn v. Thompson, 103
U.S. 168, 196 (1880); Ex Parte Nugent, 18 F. 471 (D.D.C. 1848).
79
Groppi v. Leslie, 404 U.S. 496 (1972).
80
Id.
81
For a discussion of these statutory limitations on the contempt power see infra at notes
279-351 and accompanying text.
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an alternative. Such a fine would potentially have the advantage of avoiding a court
proceeding on habeas corpus grounds, as the contemnor would never be jailed or
detained. Drawing on the analogous authority that courts have to inherently impose
fines for contemptuous behavior,82 it appears possible to argue that Congress, in its
exercise of a similar inherent function could impose fines as opposed to
incarceration. Additional support for this argument appears to be contained in dicta
from the 1821 Supreme Court decision in Anderson v. Dunn. The Court questioned
the “extent of the punishing power which the deliberative assemblies of the Union
may assume and exercise on the principle of self preservation” and responded with
the following:
Analogy, and the nature of the case, furnish the answer – ‘the least possible
power adequate to the end proposed;’ which is the power of imprisonment. It
may, at first view, and from the history of the practice of our legislative bodies,
be thought to extend to other inflictions. But every other will be found to be
mere commutation for confinement; since commitment alone is the alternative
where the individual proves contumacious.83
Finally, in Kilbourn v. Thompson, the Court suggested that in certain cases where the
Congress had authority to investigate, it may compel testimony in the same manner
and by use of the same means as a court of justice in like cases. Specifically, the
Court noted that “[w]hether the power of punishment in either House by fine or
imprisonment goes beyond this or not, we are sure that no person can be punished for
contumacy as a witness before either House, unless his testimony is required in a
matter into which that House has jurisdiction to inquire ....”84 While the language of
these cases and the analogous power possessed by courts seem to suggest the
possibility of levying a fine as punishment for contempt of Congress, we are aware
of, and could not locate, any precedent for Congress imposing a fine in the contempt
or any other context.
In comparison with the other types of contempt proceedings, inherent contempt
has the distinction of not requiring the cooperation or assistance of either the
executive or judicial branches. The House or Senate can, on its own, conduct
summary proceedings and cite the offender for contempt. Furthermore, 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.
There are also certain limitations on the inherent contempt process. Although
the contemnor can be incarcerated until he agrees to comply with the subpoena,
82
See, e.g., United States v. United Mine Workers, 330 U.S. 258 (1947) (upholding a
$700,000 fine against a labor union as punishment for disobedience of a preliminary
injunction preventing it from continuing a worker strike and approving the imposition of a
$2.8 million fine if the union did not end the strike within five days).
83
Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 230-31 (1821) (emphasis added).
84
Kilbourn v. Thompson, 103 U.S. 168, 190 (1881) (emphasis added).
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imprisonment may not extend beyond the end of the current session of Congress.85
Moreover, inherent contempt has been described as “unseemly,” cumbersome,
time-consuming, and relatively ineffective, especially for a modern Congress with
a heavy legislative workload that would be interrupted by a trial at the bar.86 Because
of these drawbacks, the inherent contempt process has not been used by either body
since 1935.87 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. Although generally the proceedings in inherent
contempt cases appear to have been conducted at the bar of the House of Congress
involved,88 in at least a few instances proceedings were conducted initially or
primarily before a committee, but with the final decision as to whether to hold the
person in contempt being made by the full body.89
Inherent Contempt Proceedings By Committees of Congress
As has been indicated, although the majority of the inherent contempts by both
the House and the Senate was conducted via trial at the bar of the full body, there is
historical evidence to support the notion that this is not the exclusive procedure by
which such proceeding can occur. This history, when combined with a 1993
Supreme Court decision addressing the power of Congress to make its own rules for
the conduct of impeachment trials,90 strongly suggests that the inherent contempt
process can be supported and facilitated by the conduct of evidentiary proceedings
and the development of recommendations at the committee level.
Actually, the consideration of the use of committees to develop the more
intricate details of an inquiry into charges of contempt of Congress date back to the
very first inherent contempt proceedings of Messrs. Randall and Whitney in 1795.
As discussed above, in these cases the House appointed a Committee on Privileges
85
Watkins v. United States, 354 U.S. 178, 207, n.45 (1957); Anderson v. Dunn, 19 U.S. (6
Wheat.) 204, 231 (1821).
86
See S.Rept. No. 95-170, 95th Cong., 1st Sess., 97 (1977); see also Rex E. Lee, Executive
Privilege, Congressional Subpoena Power, and Judicial Review: Three Branches, Three
Powers, and Some Relationships, 1978 B.Y.U. L. REV. 231, 255 n. 71 (1978) [hereinafter
Lee].
87
4 DESCHLER’S PRECEDENTS OF THE U.S. HOUSE OF REPRESENTATIVES, ch. 15, § 17, 139
n.7 (1977) [hereinafter Deschler’s Precedents]; see also Lee, supra note 86, at 255.
88
See Beck, supra note 21, at 4; ENERST J. EBERLING, CONGRESSIONAL INVESTIGATIONS
289 (1928) [hereinafter Eberling].
89
For example, in 1865, the House appointed a select committee to inquiry into an alleged
breach of privilege committed by Mr. A.P. Field for assaulting a Member of the House. 72
CONG. GLOBE, 38th Cong., 2d Sess., 371 (1865). After taking testimony, the committee
recommended, and the House adopted, a resolution directing the Speaker to reprimand Field
at the bar of the House. Id. at 971, 974.
90
See United States v. Nixon, 506 U.S. 224 (1992).
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to report a mode of procedure. The Committee reported the following resolution,
which was adopted by the full House of Representatives:
Resolved, That the said Robert Randall and Charles Whitney be brought to the
bar of the House and interogated by the Speaker touching the information given
against them, on written interrogatories, which with the answers thereto shall be
entered into the minutes of the House. And that every question proposed by a
Member be reduced to writing and a motion made that the same be put by the
Speaker. That, after such interrogatories are answered, if the House deem it
necessary to make any further inquiry on the subject, the same be conducted by
a committee to be appointed for that purpose.91
According to the Annals of Congress, the Committee’s language sparked a
debate concerning the proper procedures to be used, including a discussion regarding
whether the use of such a select committee was proper.92 At least one Representative
“was convinced that the select committee was alone competent to taking and
arranging the evidence for the decision of the House.”93 While others noted that “the
investigation of facts is constantly performed by select committees. ... [The
committee’s] report is not to be final, it is to be submitted to the House for final
decision.”94 It was recommended that, “the subject should be remanded to a
committee, which would save a good deal of time.”95 Other Members, however,
objected to the use of a select committee to hear evidence of this magnitude on the
grounds that it would be:
highly improper for the witness to be sworn by a select committee, and that
committee to send for the Members and have them sworn and examined in that
private way. However troublesome and difficult, the House must meet all the
questions and decide them on this floor.96
Ultimately, it appears that none of the proceedings in this case was conducted before
a select committee. That said, Congress’s interpretation of its own powers and
prerogatives is significant. It is clear that during the very first exercise of Congress’s
power of inherent contempt, the House allowed for the possibility that at least some
of the proceedings could occur before a committee, rather than at the bar of the
House.
This early precedent was finally invoked in 1836, when after the assault of
reporter Robert Codd by reporter Henry Wheeler on the House floor, the House
committed the examination of a contempt and breach of privilege to a select
committee. The House adopted the following resolution empowering the committee
to conduct a contempt investigation:
91
See 2 Hinds’ Precedent, supra note 22 at § 1599 (emphasis added).
92
See 5 ANNALS OF CONG. 188 (1792).
93
See id. (statement of Rep. Baldwin).
94
Id. at 189 (statement of Rep. W. Smith).
95
Id. at 190 (statement of Rep. W. Smith).
96
Id. at 188 (statement of Rep. Hillhouse).
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Resolved, That a select committee be forthwith appointed, whose duty it shall be
forthwith to inquiry into an assault committed within the Hall of the House of
Representatives this morning, while this House was in session and for and on
account of which two persons are now in custody of the Sergeant-at-Arms; and
said committee are to make their report to this House; and that said committee
be authorized to administer oaths and to cause the attendance of witnesses.97
The Committee’s report noted that Mr. Wheeler admitted his offense and included
a recommendation that the punishment not be vindictive.98 The report also contained
three resolutions that were considered by the full House. The first found Mr.
Wheeler guilty of contempt and breach of the privileges of the House, and was
adopted. The second, which was amended on the floor prior to adoption, excluded
Mr. Wheeler from the floor of the House for the remainder of the session. Finally,
the third resolution, which called for Mr. Wheeler to be taken into custody for the
remainder of the session, was also amended on the floor prior to adoption to simply
discharge Mr. Wheeler from custody.99
Another example of the use of select committee to hear a contempt trial
occurred in 1865, when it was alleged that Mr. A.P. Field assaulted Congressman
William Kelley. Similar to the contempt proceedings of Mr. Wheeler, the House
adopted the following resolution authorizing a select committee to conduct an
examination of the charges:
Be it Resolved, That a select committee of five members be appointed by the
Speaker to inquire into the said alleged breach of privilege; that the said
committee have power to send for persons and papers, and to examine witnesses;
and that the committee report as soon as possible all the facts and circumstances
of the affair, and what order, if any, it is proper for this House to take for the
vindication of its privilege, and right, and duty of free legislation and
judgment.100
During the debate on the resolution it was observed that proceeding in this manner
would avoid a trial by the full House, which, in the words of one Member, “would
consume a great amount of the public time which there is a pressing need to apply
to the business of the Government, it is better that the course should be adopted
which is contemplated by the resolution ....”101
The select committee, in its report to the full House, noted that it had heard the
testimony of several witnesses concerning the incident, including the voluntary
97
2 Hinds’ Precedent, supra note 22 at § 1630.
98
See id.; see also H.Rept. 792, 24th Cong. 1st Sess., (1836).
99
Id.; see also Groppi v. Leslie, 404 U.S. 496, 501 n.4 (1972) (citing the Wheeler committee
procedure as an example of procedures followed by Congress in contempt cases).
100
CONG. GLOBE, 38th Cong., 2nd Sess., 371 (1865).
101
Id. (statement of Rep. Thayer).
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statement of Mr. Field.102 Also according to the Committee, Mr. Field was present
for each of the witnesses and, in fact, several of them were heard from at his request.
Moreover, all of the witnesses were subject to examination or cross-examination by
Mr. Field.103 At the committee’s recommendation, a resolution directing the Speaker
to issue a warrant for Mr. Field’s arrest by the Sergeant-at-Arms for the purpose of
bringing him before the Speaker for a reprimand was adopted.104 It does not appear
that Mr. Field or his counsel was permitted to be present during the House’s
consideration of the committee’s report, nor does it appear that he was afforded an
opportunity to address the House prior to his formal reprimand. In fact, during the
course of the reprimand, the Speaker expressly referred to Mr. Field having “been
tried before a committee of their members, and ordered to be reprimanded at the bar
of the House by their Presiding Officer,”105 which may be interpreted as indicating
that the committee’s proceedings were deemed to be sufficient in the eyes of the
House.
Nixon v. United States. Although there is ample historical evidence of the
presumed propriety of contempt proceedings before committees of Congress, there
has been no judicial ruling directly confirming the Congress’s interpretation of its
own contempt powers. In 1993, however, the Supreme Court decided United States
v. Nixon,106 which, while not a contempt case, involved an analogous delegation of
authority by the Senate to a select committee for the purposes of hearing evidence
regarding the impeachment of two federal judges. Specifically, the impeached judges
challenged the Senate’s procedure under Rule XI of the “Rules of Procedure and
Practice in the Senate when Sitting on Impeachment Trials,” which provides:
That in the trial of any impeachment the Presiding Officer of the Senate, if
the Senate so orders, shall appoint a committee of Senators to receive evidence
and take testimony at such times and places as the committee may determine, and
for such purpose the committee so appointed and the chairman thereof, to be
elected by the committee, shall (unless otherwise ordered by the Senate) exercise
all the powers and functions conferred upon the Senate and the Presiding Officer
of the Senate, respectively, under the rules of procedure and practice in the
Senate when sitting on impeachment trials.
Unless otherwise ordered by the Senate, the rules of procedure and practice
in the Senate when sitting on impeachment trials shall govern the procedure and
practice of the committee so appointed. The committee so appointed shall report
to the Senate in writing a certified copy of the transcript of the proceedings and
testimony had and given before the committee, and such report shall be received
by the Senate and the evidence so received and the testimony so taken shall be
considered to all intents and purposes, subject to the right of the Senate to
determine competency, relevancy, and materiality, as having received and taken
before the Senate, but nothing herein shall prevent the Senate from sending for
102
Id. at 971.
103
Id.
104
Id. at 972-74.
105
Id. at 991 (emphasis added).
106
506 U.S. 224 (1993).
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any witness and hearing his testimony in open Senate, or by order of the Senate
having the entire trial in open Senate.107
Judge Nixon argued that the use of a select committee to hear the evidence and
witness testimony of his impeachment violated the Senate’s constitutional duty to
“try” all impeachments. According to Judge Nixon, anything short of a trial before
the full Senate was unconstitutional and, therefore, required reversal and a
reinstatement of his judicial salary. The Court held the issue to be a non-justiciable
political question. Chief Justice Rehnquist, writing for the Court, based this
conclusion upon the fact that the impeachment proceedings were textually committed
in the Constitution to the Legislative Branch. In addition, the Court found the “lack
of finality and the difficulty in fashioning relief counsel[led] against justiciability.”108
According to the majority, to open “the door of judicial review to the procedures used
by the Senate in trying impeachments would ‘expose the political life of the country
to months, or perhaps years, of chaos.’”109 The Court found that the word “try” in the
Impeachment Clause did not “provide an identifiable textual limit on the authority
which is committed to the Senate.”110 Justice Souter’s concurring opinion noted that
“[i]t seems fair to conclude that the [Impeachment] Clause contemplates that the
Senate may determine, within broad boundaries, such subsidiary issues as the
procedures for receipt and consideration of evidence necessary to satisfy its duty to
‘try’ impeachments.”111
The Court’s affirmation of the Senate’s procedures with respect to the
appointment of select committees for impeachment trials, clearly indicates that the
use of committees for contempt proceedings – whether they be standing legislative
committees, or select committees created by resolution for a specific purpose – is a
permissible exercise of each House’s Article I, section 5 rulemaking power. As such,
it would appear that one of the suggested reasons for the apparent abandonment of
the use of Congress’s inherent contempt power, namely, that it became to
cumbersome and time consuming to try contemptuous behavior on the floor of the
body, is no longer compelling. The ability to utilize the committee structure for
trials, evidentiary hearings, and other procedural determinations appears to be
supported not only by the historical records of previous contempt proceedings, but
also by the Court’s decision in Nixon.
While the Court in Nixon addressed the permissibility of using select
committees in impeachment trials, it says nothing about the rights or privileges that
would be required to be afforded to the accused. Similarly, in any contempt
proceedings before a congressional committee, the question of rights and privileges
remains one that has not yet been directly addressed by the courts. According to the
Supreme Court in Groppi v. Leslie:
107
Id. at 227, n. 1 (emphasis added).
108
Id. at 739.
109
Id. (quoting United States v. Nixon, 938 F.2d 239, 246 (D.C. Cir. 1991)).
110
Id. at 740.
111
Id. at 748 (Souter, J., concurring).
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[t]he past decisions of this Court strongly indicate that the panoply of procedural
rights that are accorded a defendant in a criminal trial has never been thought
necessary in legislative contempt proceedings. The customary practice in
Congress has been to provide the contemnor with an opportunity to appear before
the bar of the House, or before a committee, and give answer to the misconduct
charged against him.112
The Court also suggested that “the length and nature of the [right to be heard] would
traditionally be left largely to the legislative body....”113 This deference to Congress
in establishing its own rules and procedures is consistent with the more recent
decision in Nixon. Thus, it would appear that while there is no definitive answer to
the question of what rights the committee hearing a contempt proceeding would be
required to afford,114 so 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.
Congressional precedent would also appear to be a useful guide to the question
of what process is due. A review of early exercises of inherent contempt, discussed
above, indicates that the following procedures have been established: attachment by
the Sergeant-at-Arms; appearance before the bar; provision for specification of
charges; identification of the accuser; compulsory process; provision of counsel; a
hearing; determination of guilt; and imposition of a penalty. According to one
commentator, “[t]his traditional procedure was followed by both houses of Congress
until they abandoned it for a more convenient statutory device.”115 Since these
procedures appear to be in excess of what the Court instructed was required in
Groppi, it would seem reasonable to conclude that any inherent contempt proceeding
that conforms with these traditions would likely satisfy judicial review.
Statutory Criminal Contempt
Between 1795 and 1857, 14 inherent contempt actions were initiated by the
House and Senate, eight of which can be considered successful in that the contemnor
was meted out punishment, agreed to testify or produce documents. Such inherent
contempt proceedings, however, involved a trial at the bar of the chamber concerned
and, therefore, were seen by some as time-consuming, cumbersome, and in some
instances ineffective – because punishment could not be extended beyond a House’s
112
See Groppi v. Leslie, 404 U.S. 496, 500-01 (1972) (citing Jurney v. MacCracken, 294
U.S. 125, 143-144 (1935); Kilbourn v. Thompson, 103 U.S. 168, 173- 174 (1880); Anderson
v. Dunn, 19 U.S.( 6 Wheat.) 204, 209-211 (1821); Marshall v. Gordon, 243 U.S. 521, 532
(1917)).
113
Id. at 503.
114
While the Supreme Court in Groppi limited its holding to requiring only notice and the
opportunity to be heard, the lower court in the same case suggested that the following rights
were also necessary: representation by counsel; the ability to compel the attendance of
witnesses; an opportunity to confront any accusers; and the right to present a defense to the
charges. See Groppi v. Leslie, 311 F.Supp. 772, 774 (W.D. Wisc. 1970), rev’d, 436 F.2d
326 (7th Cir. 1970), rev’d., 404 U.S. 496 (1972).
115
Shriner, supra note 76 at 491.
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adjournment date.116 In 1857, a statutory criminal contempt procedure was
enacted,117 largely as a result of a particular proceeding brought in the House of
Representatives that year. The statute provides for judicial trial of the contemnor by
a United States Attorney rather than a trial at the bar of the House or Senate. It is
clear from the floor debates and the subsequent practice of both Houses that the
legislation was intended as an alternative to the inherent contempt procedure, not as
a substitute for it. A criminal contempt referral was made in the case of John W.
Wolcott in 1858, but in the ensuing two decades after its enactment most contempt
proceedings continued to be handled at the bar of the House, rather than by the
criminal contempt method, apparently because Members felt that they would not be
able to obtain the desired information from the witness after the criminal proceedings
had been instituted.118 With only minor amendments, those statutory provisions are
codified today as 2 U.S.C. §§ 192 and 194, which state:
Every person who having been summoned as a witness by the authority of either
House of Congress to give testimony or to produce papers upon any matter under
inquiry before either House, or any joint committee established by a joint or
concurrent resolution of the two Houses of Congress, or any committee of either
House of Congress, willfully makes default, or who, having appeared, refuses to
answer any question pertinent to the question under inquiry, shall be deemed
guilty of a misdemeanor, punishable by a fine of not more than [$100,000] nor
less than $100 and imprisonment in a common jail for not less than one month
nor more than twelve months.119
Whenever a witness summoned as mentioned in section 192 of this title fails to
appear to testify or fails to produce any books, papers, records, or documents, as
required, or whenever any witness so summoned refuses to answer any question
pertinent to the subject under inquiry before either House, or any joint committee
established by a joint or concurrent resolution of the two Houses of Congress, or
any committee or subcommittee of either House of Congress, and the fact of such
failure or failures is reported to either House while Congress is in session or
when Congress is not in session, a statement of fact constituting such failure is
reported to and filed with the President of the Senate or the Speaker of the
House, it shall be the duty of the said President of the Senate or Speaker of the
House, as the case may be, to certify, and he shall so certify, the statement of
116
See Eberling, supra note 88 at 302-16.
117
Act of Jan. 24, 1857, c. 19 § 3, 11 Stat. 156 (1857) (codified as amended at 2 U.S.C. §§
192, 194 (2000)). The constitutionality of the statute was upheld by the Supreme Court in
1897. See In re Chapman, 166 U.S. 661 (1897).
118
Beck, supra note 21 at 191-214. In the appendix to Beck’s study, he provides a
comprehensive list of persons from 1793-1943 who were held in contempt of Congress, and
the circumstances surrounding their cases. A review of Beck’s chronology indicates that
from 1857-1934 Congress relied on its inherent contempt power almost exclusively, despite
the availability of the criminal statute. See id. Moreover, Beck’s detailed history indicates
that in at least 28 instances, witnesses who were either threatened with, or actually charged
with, contempt of Congress purged their citations by either testifying or providing
documents to the inquiring congressional committees. See id.
119
2 U.S.C. § 192 (2000). As a result of congressional classification of offenses, the penalty
for contempt of Congress is a Class A misdemeanor; thus, the $1,000 maximum fine under
§ 192 has been increased to $100,000. See 18 U.S.C. §§ 3559, 3571 (2000).
CRS-22
facts aforesaid under the seal of the Senate or House, as the case may be, to the
appropriate United States attorney, whose duty it shall be to bring the matter
before the grand jury for its action.120
The legislative debate over the criminal contempt statute reveals that it was
prompted by the obstruction of a House select committee’s investigation into
allegations of misconduct that had been made against several Members of the House
of Representatives. According to reports, the investigation was hindered by the
refusal of a newspaper reporter, James W. Simonton, to provide answers to certain
questions posed by the committee.121 The select committee responded by reporting
a resolution citing Mr. Simonton for contempt, as well as introducing a bill122 that
was intended “to more effectually ... enforce the attendance of witnesses on the
summons of either House of Congress, and to compel them to discover testimony.”123
It appears that there were no printed House or Senate committee reports on the
measure, though it was considered in the House by the select committee and in the
Senate by the Judiciary Committee.124
According to the legislative debate records and commentators, there was
opposition to the bill on several fronts. Some Members proposed an amendment
expressly codifying Congress’s contempt power for failure to comply with requests
for documents or testimony, thereby resurrecting the view that Congress did not
possess any inherent power to punish for contempt.125 Others argued that Congress’s
inherent contempt powers rendered the proposed bill unnecessary.126 Still other
Members opposed the bill on the grounds that it violated the Fourth and Fifth
Amendments of the Constitution, because it sanctioned unreasonable searches and
seizures, compelled persons to incriminate themselves, and violated the prohibition
on persons being punished twice for the same offense (double jeopardy).127
In response to arguments that such a statute was unnecessary given Congress’s
inherent authority to hold individuals in contempt, supporters made clear that the
proposed bill was not intended in any way to diminish Congress’s inherent contempt
authority.128 Rather, supporters of the bill saw it as designed to give Congress
120
2 U.S.C. § 194 (2000).
121
See Eberling, supra note 88 at 302-04.
122
H.R. 757, 34th Cong., 3d Sess. (1857).
123
42 CONG. GLOBE. 34th Cong., 3d Sess., 403-04 (1857) (discussing H.R. 757).
124
See id. at 425-26.
125
See Eberling, supra note 88 at 309; see also supra notes 84-89 and accompanying text.
126
Id. at 311.
127
Id. at 309.
128
42 CONG. GLOBE, 34th Cong., 3d Sess., 404 (1857) (statement of Mr. Orr) (providing that
“ Some gentlemen say that the very fact of presenting this bill is an admission that the House
has no power upon this subject, and that it negatives the resolution which we have already
adopted, that is, to take [Mr.] Simonton into custody and bring him before the House to
answer for his contempt. No such thing. The power of this House I believe is conceded by
(continued...)
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“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.”129 The main concern of proponents seems to have been
Congress’s ability to impose adequate punishments for contempts that occur near the
end of a session, especially in the House, where the prevailing view was that the
Court’s opinion in Anderson v. Dunn130 prohibited terms of incarceration that
extended beyond the adjournment of a session.131 With respect to the arguments
surrounding the Fourth and Fifth Amendments, supporters asserted that the bill
provided the protection of the judiciary, via a judicial trial, for the potential
contumacious witnesses. Moreover, supporters argued that the bill removed such
witnesses “from the passions and excitement of the Hall – where partisans may
frequently, in political questions, carry into the measures of punishment their party
hostilities.”132
The bill was ultimately passed by both the House133 and the Senate.134
According to one commentator, the bill was adopted for three reasons:
[F]irst, to increase the power of either House of Congress to punish for contempt
in cases of contumacy of witnesses, ... second, to compel criminating testimony.
A third reason, although undoubtedly a minor one, was that the effect of the
enactment of this legislation would be to remove the trial of cases of contempt
of either House of Congress from their respective bars to the courts, where
passion and partisanship would not influence the decision against the prisoner
and where he would have a trial by jury and all the other constitutional
safeguards of court proceedings.135
Under 2 U.S.C. § 192, a person who has been “summoned as a witness” by
either House or a committee thereof to testify or to produce documents and who fails
to do so, or who appears but refuses to respond to questions, is guilty of a
misdemeanor, punishable by a fine of up to $100,000 and imprisonment for up to one
year. 2 U.S.C. § 194 establishes the procedure to be followed by the House or Senate
if it chooses to refer a recalcitrant witness to the courts for criminal prosecution
128
(...continued)
all ....”)
129
Eberling, supra note 88 at 306; see also 42 CONG. GLOBE, 34th Cong., 3d Sess., 405
(1857) (statement of Mr. Orr).
130
See supra notes 45-59 and accompanying text.
131
42 CONG. GLOBE, 34th Cong., 3d Sess., 404 (1857) (statement of Mr. Orr) (stating
“[s]uppose that two days before the adjournment of this Congress there is a gross attempt
on the privileges of this House by corrupt means of any description; then the power of this
House extends only to those two days. Is that an adequate punishment? Ought we not then,
to pass a law which will make the authority of the House respected; ....”).
132
Eberling, supra note 88 at 313 (citing 42 CONG. GLOBE, 34th Cong. 3d Sess., 427 (1857)
(statement of Mr. Davis).
133
42 CONG. GLOBE, 34th Cong., 3d Sess., 433 (1857).
134
Id. at 445.
135
Eberling, supra note 88 at 316.
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rather than try him at the bar of the House or Senate. Under the procedure outlined
in section 194,136 “the following steps precede judicial proceedings under [the
statute]: (1) approval by committee;137 (2) calling up and reading the committee
report on the floor; (3) either (if Congress is in session) House approval of a
resolution authorizing the Speaker to certify the report to the U.S. Attorney for
prosecution, or (if Congress is not in session) an independent determination by the
Speaker to certify the report;138 [and] (4) certification by the Speaker to the
appropriate U.S. Attorney for prosecution.139
The criminal contempt statute and corresponding procedure are punitive in
nature. It is used when the House or Senate wants to punish a recalcitrant witness
and, by doing so, to deter others from similar contumacious conduct.140 The criminal
sanction is not coercive because the witness generally will not be able to purge
himself by testifying or supplying subpoenaed documents after he has been voted in
contempt by the committee and the House or Senate. Consequently, once a witness
has been voted in contempt, he lacks an incentive for cooperating with the
committee. However, although the courts have rejected arguments that defendants
had purged themselves,141 in a few instances the House has certified to the U.S.
Attorney that further proceedings concerning contempts were not necessary where
compliance with subpoenas occurred after contempt citations had been voted but
before referral of the cases to grand juries.142
Under the statute, after a contempt has been certified by the President of the
Senate or the Speaker, it is the “duty” of the United States Attorney “to bring the
136
The language of § 194 does not provide a complete picture of the process. For a more
detailed explanation of the workings of the procedure, reference should be made to the
actual practice in the House and Senate. See 4 Deschler’s Precedents, supra note 87, at §§
17-22.
137
In case of a defiance of a subcommittee subpoena, subcommittee approval of the
contempt citation precedes committee action on the matter.
138
See Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966).
139
4 Deschler’s Precedents, supra note 87, at p. 141. While the quoted description is from
the compilation of House precedents, the same procedure is employed in the Senate, but
with the President of the Senate performing the functions that are the responsibility of the
Speaker in cases of contempt of the House.
140
See, e.g., S.Rept. No. 95-170, 95th Cong., 1st Sess., 97 (1977).
141
United States v. Costello, 198 F.2d 200 (2d Cir. 1952), cert. denied, 344 U.S. 874 (1952);
United States v. Brewester, 154 F. Supp. 126 (D.D.C. 1957), rev’d on other grounds, 255
F.2d 899 (D.C. Cir. 1958), cert. denied, 358 U.S. 842 (1958). However, the defendant’s
sentence may be suspended where he complies with the committee’s demand following his
conviction. See United States v. Tobin, 195 F. Supp. 588, 617 (D.D.C. 1961).
142
See 4 Deschler’s Precedents, supra note 87, ch. 15, 521 (witness before the House
Committee on Un-American Activities voluntarily purged himself of his contempt); see also
H.Res. 180, 98th Cong. (resolution stating that prosecution of Anne Gorsuch Burford,
Administrator of the Environmental Protection Agency, was not required following
implementation of an agreement granting the House access to documents which had been
withheld under a claim of executive privilege).
CRS-25
matter before the grand jury for its action.”143 It remains unclear whether the “duty”
of the U.S. Attorney to present the contempt to the grand jury is mandatory or
discretionary. The case law that is most relevant to the question provides conflicting
guidance. In Ex parte Frankfeld,144 the District Court for the District of Columbia
granted petitions for writs of habeas corpus sought by two witnesses before the
House Committee on Un-American Activities. The witnesses were charged with
violating 2 U.S.C. § 192, and were being held on a warrant based on the affidavit of
a committee staff member.145 The court ordered the witnesses released since the
procedure, described as “mandatory” by the court,146 had not been followed. The
court, in dicta, not central to the holding of the case, observed that Congress
prescribed that
when a committee such as this was confronted with an obdurate witness, a willful
witness, perhaps, the committee would report the fact to the House, if it be a
House committee, or to the Senate, if it be a Senate committee, and that the
Speaker of the House or the President of the Senate should then certify the facts
to the district attorney.
It seems quite apparent that Congress intended to leave no measure of
discretion to either the Speaker of the House or the President of the Senate, under
such circumstances, but made the certification of facts to the district attorney a
mandatory proceeding, and it left no discretion with the district attorney as to
what he should do about it. He is required, under the language of the statute, to
submit the facts to the grand jury.147
Similarly, in United States v. United States House of Representatives,148 a case that
involved the applicability of the section 192 contempt procedure to an executive
branch official, the same district court observed, again in dicta, that after the
contempt citation is delivered to the U.S. Attorney, he “is then required to bring the
matter before the grand jury.”149
Conversely, in Wilson v. United States,150 the United States Court of Appeals for
the District of Columbia Circuit concluded, based in part on the legislative history
of the contempt statute and congressional practice under the law, that the “duty” of
143
2 U.S.C. § 194 (2000).
144
32 F.Supp 915 (D.D.C. 1940).
145
Id. at 916.
146
Id.
147
Id. (emphasis added).
148
United States v. United States House of Representatives, 556 F. Supp. 150, 151 (D.D.C.
1983).
149
But see Ansara v. Eastland, 442 F.2d 751, 754, n.6 (D.C. Cir. 1971) (suggesting that “the
Executive Branch ... may decide not to present ... [a contempt citation] to the grand jury...”).
The court in Ansara did not expressly consider the nature of the prosecutor’s duty under 2
U.S.C. § 194, nor did it provide any basis for its statement to the effect that the prosecutor
may exercise discretion in determining whether to seek an indictment.
150
369 F.2d 198 (D.C. Cir. 1966).
CRS-26
the Speaker when certifying contempt citations to the United States Attorney during
adjournments is a discretionary, not a mandatory, one.151 The court reasoned that
despite its mandatory language, the statute had been implemented in a manner that
made clear Congress’s view that, when it is in session, a committee’s contempt
resolution can be referred to the U.S. Attorney only after approval by the parent body.
When Congress is not in session, review of a committee’s contempt citation is
provided by the Speaker or President of the Senate, rather than by the full House or
Senate.152 This review of a committee’s contempt citation, according to the court,
may be inherently discretionary in nature, whereas the prosecutor is simply carrying
out Congress’s directions in seeking a grand jury indictment.153 In Wilson, the
defendants’ convictions were reversed because the Speaker had certified the
contempt citations without exercising his discretion.154 From this holding it may be
possible to argue that because the statute uses similar language when discussing the
Speaker’s “duty” and the “duty” of the U.S. Attorney, that the U.S. Attorney’s
function is discretionary as well, and not mandatory as other courts have concluded.
Alternatively, despite the similarity in the statutory language, there is an
argument that the functions of the Speaker and the President of the Senate are so
different in nature under the statutory scheme from those of the U.S. Attorney that
to conclude that the function of the prosecutor was intended to be discretionary
simply because that is the interpretation given to the function of the presiding officers
is contrary to the understanding and intent of the 1857 Congress that drafted the
language.155 Nevertheless, it should be noted that the courts have generally afforded
United States Attorneys broad prosecutorial discretion, even where a statute uses
mandatory language.156 Moreover, prosecutorial discretion was the basis of the
decision of the U.S. Attorney not to present to the grand jury the contempt citation
of Environmental Protection Agency Administration Anne Gorsuch Burford.157
151
Id. at 201-03.
152
Id. at 203-04.
153
See id.
154
Id. at 205.
155
See id. at 201-02.
156
See Confiscation Cases, 74 U.S. (7 Wall.) 454 (1868); see also United States v. Nixon,
418 U.S. 683, 694 (1974); Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d
376 (2d Cir. 1973); Moses v. Kennedy, 219 F. Supp. 762, 765 (D.D.C. 1963), aff ‘d sub.
nom., Moses v . Katzenbach, 342 F.2d 931 (D.C. Cir. 1965).
157
See Examining and Reviewing the Procedures That Were Taken by the 0ffice of the U.S.
Attorney for the District of Columbia in Their Implementation of a Contempt Citation that
Was Voted by the Full House of Representatives against the Then-Administrator of the
Environmental Protection Agency, Anne Gorsuch Burford, Hearing before the House
Committee on Public Works and Transportatlon, 98th Cong., 1st Sess., 30 (1983)
[hereinafter Burford Contempt Prosecution Hearing]. The U.S. Attorney also suggested that
it would have been inappropriate for him to institute a criminal suit against Burford while
a related civil action brought by the Justice Department against the House was pending).
See Letter, from U.S. Attorney Stanley Harris to Speaker Thomas P. O’Neill of Dec. 27,
1982, reprinted in, H.Rept. 98-323, 98th Cong., 1st Sess., 48-49 (1983). Of course, as a
(continued...)
CRS-27
While upholding the validity of 2 U.S.C. §§ 192 and 194, the courts have
recognized that they are criminal provisions and have reversed convictions for
contempt where limitations dictated by the language of the statute itself or the
Constitution have been exceeded.158
The Position of the Department of Justice on the Use of
Inherent and/or Criminal Contempt of Congress Against the
Executive Branch
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 procedures159 against an executive
branch official acting on instructions by the President to assert executive privilege
in response to a congressional subpoena. This view is most fully articulated in two
opinions by the DOJ’s Office of Legal Counsel (OLC) from the mid-1980s,160 and
has been the basis of several recent claims with respect to pending congressional
investigations.161
The position of the DOJ was prompted by the outcome of an investigation by
two House committees into the Environmental Protection Agency’s (EPA)
implementation of provisions of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (Superfund). Subpoenas were issued by
both committees seeking documents contained in EPA’s litigation files.162 At the
157
(...continued)
practical matter, even if the United States Attorney is required to refer a contempt under 2
U.S.C. §§ 192, 194 to the grand jury, there is no apparent requirement that the United States
Attorney concur in the prosecution of any subsequent indictment. See FED. R. CRIM. PRO.
7(c); see also United States v. Cox, 342 F.2d 167 (5th Cir. 1965).
158
See infra notes 279-325 and accompanying text.
159
2 U.S.C. §§ 192, 194 (2000).
160
See Prosecution for the Contempt of Congress of an Executive Branch Official Who Has
Asserted a Claim of Executive Privilege, 8 U.S. Op. Off. Legal Counsel 101 (1984)
[hereinafter Olson Memo]; see also Response to Congressional Requests for Information
Regarding Decisions Made Under the Independent Counsel Act, 10 U.S. Op. Off. Legal
Counsel 68 (1986) [hereinafter Cooper Memo].
161
See, e.g., Memorandum for the Counsel to the President, Fred. F. Fielding, from Stephen
G. Bradbury, Principal Deputy Attorney General, Office of Legal Counsel, Immunity of
Former Counsel to the President from Compelled Congressional Testimony, July 10, 2007;
Letter to George T. Manning, Counsel for Ms. Harriet Miers, from Fred F. Fielding, Counsel
to the President, July 10, 2007 (directing Ms. Miers not to appear before the House Judiciary
Committee in response to a subpoena); Letter to House Judiciary Committee Chairman John
Conyers, Jr. from George T. Manning, Counsel for Ms. Harriet Miers, July 17, 2007
(explaining legal basis for Ms. Miers’s refusal to appear).
162
See generally, Congressional Proceedings Against Anne M. Gorsuch, Administrator, U.S.
Environmental Protection Agency, for Withholding Subpoenaed Documents Relating to the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, H.Rept.
(continued...)
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direction of President Reagan, EPA Administrator Burford claimed executive
privilege over the documents and refused to disclose them to the committees on the
grounds that they were “enforcement sensitive.”163 A subcommittee and ultimately
the full House Committee on Public Works and Transportation, approved a criminal
contempt of Congress citation and forwarded it to the full House for its
consideration.164 On December 16, 1982, the full House of Representatives voted,
259-105, to adopt the contempt citation.165 Before the Speaker of the House could
transmit the citation to the United States Attorney for the District of Columbia for
presentation to a grand jury, the DOJ filed a lawsuit seeking to enjoin the
transmission of the citation and to have the House’s action declared unconstitutional
as an intrusion into the President’s authority to withhold such information from the
Congress. According to the DOJ, the House’s action imposed an “unwarranted
burden on executive privilege” and “interferes with the executive’s ability to carry
out the laws.”166
The District Court for the District of Columbia dismissed the DOJ’s suit on the
grounds that judicial intervention in executive-legislative disputes “should be delayed
until all possibilities for settlement have been exhausted.”167 In addition, the court
noted that ultimate judicial resolution of the validity of the President’s claim of
executive privilege could only occur during the course of the trial for contempt of
Congress.168 The DOJ did not appeal the court’s ruling, opting instead to resume
negotiations, which resulted in full disclosure and release of the all the subpoenaed
documents to the Congress.169 Throughout the litigation and subsequent negotiations,
however, the U.S. Attorney refused to present the contempt citation to a grand jury
for its consideration on the grounds that, notwithstanding the mandatory language of
the criminal contempt statute,170 he had discretion with respect to whether to make
the presentation. The issue was never resolved because the ultimate settlement
agreement included a withdrawal of the House’s contempt citation.
162
(...continued)
97-968, 97th Cong. (1982) [hereinafter Gorsuch Contempt Report].
163
Id. at 42-43.
164
Id. at 57, 70.
165
128 CONG. REC. 31,776 (1982).
166
See generally, United States v. United States House of Representatives, 556 F. Supp. 150
(D.D.C. 1983).
167
Id. at 152.
168
Id. (stating that “[c]onstitutional claims and other objections to congressional
investigations may be raised as defenses in a criminal prosecution”).
169
See LOUIS FISHER, THE POLITICS OF EXECUTIVE PRIVILEGE, 126-130 (Carolina Academic
Press., 2004) [hereinafter Fisher].
170
2 U.S.C. § 194 (1982) (stating that “[the Speaker of the House or President of the Senate]
shall so certify, ... to the appropriate United States attorney, whose duty it shall be to bring
the matter before the grand jury for its action.”) (emphasis added).
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In its initial 1984 opinion, OLC revisited the statutory, legal, and constitutional
issues that were not judicially resolved by the Superfund dispute. The opinion
concluded that, as a function of prosecutorial discretion, a U.S. Attorney is not
required to refer a contempt citation to a grand jury or otherwise to prosecute an
executive branch official who is carrying out the President’s direction to assert
executive privilege.171 Next, the OLC opinion determined that a review of the
legislative history of the 1857 enactment of the criminal contempt statute and its
subsequent implementation demonstrates that Congress did not intend the statute to
apply to executive officials who carry out a presidential directive to assert executive
privilege.172 Finally, as a matter of constitutional law, the opinion concludes that
simply the threat of criminal contempt would unduly chill the President’s ability to
effectively protect presumptively privileged executive branch deliberations.173
According to the OLC opinion:
The President’s exercise of this privilege, particularly when based upon the
written legal advice of the Attorney General, is presumptively valid. Because
many of the documents over which the President may wish to assert a privilege
are in the custody of a department head, a claim of privilege over those
documents can be perfected only with the assistance of that official. If one House
of Congress could make it a crime simply to assert the President’s presumptively
valid claim, even if a court subsequently were to agree that the privilege claim
were valid, the exercise of the privilege would be so burdened as to be nullified.
Because Congress has other methods available to test the validity of a privilege
claim and to obtain the documents that it seeks, even the threat of a criminal
prosecution for asserting the claim is an unreasonable, unwarranted, and
therefore intolerable burden on the exercise by the President of his functions
under the Constitution.174
The 1984 opinion focuses almost exclusively on the criminal contempt statute,
as that was the authority invoked by Congress in the Superfund dispute. In a brief
footnote, however, the opinion contains a discussion of Congress’s inherent contempt
power, summarily concluding that the same rationale that makes the criminal
contempt statute inapplicable and unconstitutional as applied to executive branch
officials apply to the inherent contempt authority:
We believe that this same conclusion would apply to any attempt by Congress
to utilize its inherent “civil” contempt powers to arrest, bring to trial, and punish
an executive official who asserted a Presidential claim of executive privilege.
The legislative history of the criminal contempt statute indicates that the reach
of the statute was intended to be coextensive with Congress’ inherent civil
contempt powers (except with respect to the penalties imposed). Therefore, the
same reasoning that suggests that the statute could not constitutionally be applied
171
See Olson Memo, supra note 160 at 102, 114-15, & 118-28.
172
Id. at 129-134 (stating that “[t]he Executive’s exclusive authority to prosecute violations
of the law gives rise to the corollary that neither the Judicial nor Legislative Branches may
directly interfere with the prosecutorial discretion of the Executive by directing the
Executive Branch to prosecute particular individuals.”).
173
See id. at 102, 135-142.
174
Id. at 102.
CRS-30
against a Presidential assertion of privilege applies to Congress’ inherent
contempt powers as well.175
The 1986 OLC opinion reiterates the 1984 reasoning adding the observation that the
power had not been used since 1935 (at that time over 50 years), and that “it seems
unlikely that Congress would dispatch the Sergeant-at-Arms to arrest and imprison
an executive branch official who claimed executive privilege.”176 The 1986 OLC
opinion also suggests that then current Supreme Court opinions indicated that it was
“more wary of Congress exercising judicial authority” and, therefore, might revisit
the question of the continued constitutional validity of the inherent contempt
power.177
Factual, legal, and constitutional aspects of these OLC opinions are open to
question and potentially limitations. For example, with respect to the argument that
a U.S. Attorney cannot be statutorily required to submit a contempt citation to a
grand jury, despite the plain language of the law, such a statement appears to be
analogous to a grant of so-called “pocket immunity” by the President to anyone who
asserts executive privilege on his behalf.178 The courts have concluded that the
government, or in this case the President, may informally grant immunity from
prosecution, which is in the nature of a contract and, therefore, its effect is strongly
influenced by contract law principles.179 Moreover, principles of due process require
that the government adhere to the terms of any immunity agreement it makes.180 It
appears that a President has implicitly immunized executive branch officials from
violations of congressional enactments at least once – in 1996, during a dispute over
the constitutionality of a statute that made it a requirement for all public printing to
be done by the Government Printing Office.181 At the time, the DOJ, in an opinion
175
Id. at 140, n. 42 (internal citation omitted).
176
Cooper Memo, supra note 160 at 86.
177
Id. (citing INS v. Chadha, 462 U.S. 919, 962-66 (1983); Buckely v. Valeo, 424 U.S. 1
(1976); United States v. Brown, 381 U.S. 437 (1965); United States v. Levett, 328 U.S. 303,
317 (1940)). It is important to note that the 1984 OLC opinion pre-dates the Supreme
Court’s decisions in Morrison v. Olson, 487 U.S. 654 (1988) and Mistretta v. United States,
488 U.S. 361 (1989), both of which appear to undercut portions of the OLC’s reasoning.
178
See, e.g., United States v. Hogan, 862 F.2d 386, 388 (1st Cir.1988); United States v.
Brown, 801 F.2d 352, 354 (8th Cir.1986); United States v. Harvey, 791 F.2d 294, 300-01
(4th Cir.1986); United States v. Irvine, 756 F.2d 708, 710-11 (9th Cir.1985).
179
Id.
180
See Mabry v. Johnson, 467 U.S. 504, 509 (1984); Santobello v. New York, 404 U.S. 257,
262 (1971) (“when a plea rests in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement or consideration, such promise
must be fulfilled”); United States v. (Jerry) Harvey, 869 F.2d 1439, 1443-44 (11th
Cir.1989); Innes v. Dalsheim, 864 F.2d 974, 978 (2d Cir.1988), cert. denied, 493 U.S. 809
(1989); In re Arnett, 804 F.2d 1200, 1202-03 (11th Cir.1986).
181
See Legislative Branch Appropriations Act of 1993, P.L. 102-392 § 207(a), 106 Stat.
1703, 1719 (1992) (codified at 44 U.S.C. § 501 note); see also Legislative Branch
Appropriations Act of 1995, P.L. 103-283 § 207(2), 108 Stat. 1423, 1440 (1994) (amending
(continued...)
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from OLC, argued that the requirement was unconstitutional on its face, directed the
executive branch departments not to comply with the statute as passed by Congress,
and noted that executive branch officials who are involved in making decisions that
violate the statute face little to no litigation risk, including, it appears, no risk of
prosecution under the Anti-Deficiency Act,182 for which the DOJ is solely
responsible.183 Such a claim of immunization in the contempt context, whether
express or implicit, would raise significant constitutional questions. 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 a congressional inherent
contempt proceeding. Arguably, an inherent contempt proceeding takes place wholly
outside the criminal code, is not subject to executive execution of the laws and
prosecutorial discretion, and thus, appears completely beyond the reach of the
executive branch. Furthermore, as previously indicated, inherent contempt, unlike
criminal contempt, is not intended to punish, but rather to coerce compliance with a
congressional directive.184 Thus, a finding of inherent contempt against an executive
branch officials, does not appear to be subject to the President’s Pardon power185 –
as an inherent contempt arguably is not an “offense against the United States,” but
rather is an offense against a House of Congress. Likewise, it appears that the same
arguments would be applicable to a potential civil contempt by Congress.
The assertion that the legislative history of the 1857 statute establishing the
criminal contempt process demonstrates that it was not intended to be used against
executive branch official is not supported by the historical record. The floor debates
leading to the enactment of the statute make it clear that the legislation was intended
as an alternative to, not a substitute for, the inherent contempt authority.186 This
understanding has been reflected in numerous Supreme Court opinions upholding the
use of the criminal contempt statute.187 A close review of the floor debate indicates
that Representative H. Marshall expressly pointed out that the broad language of the
bill “proposes to punish equally the Cabinet officer and the culprit who may have
insulted the dignity of this House by an attempt to corrupt a Representative of the
people.”188
Moreover, language from the floor debate indicates that Congress was aware of
the effect that this language would have on the ability of persons to claim privileges
181
(...continued)
section 207(a) of the 1993 Act).
182
See 31 U.S.C. § 1341 (2000).
183
See Memorandum for Emily C. Hewitt, General Counsel, GSA, Involvement of the
Government Printing Office in Executive Branch Printing and Duplicating, May 31, 1996.
184
See supra at 12-14.
185
U.S. CONST. Art. II, § 2 (stating that the President “shall have the Power to grant
Reprieves and Pardons for Offenses Against the United States.”).
186
See supra at 19-22.
187
See, e.g., Journey v. McCracken, 294 U.S. 125 (1935); McGrain v. Daugherty, 273 U.S.
135 (1927); In re Chapman, 166 U.S. 661 (1897).
188
42 CONG. GLOBE 429 (1857).
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before Congress. Specifically, the sponsor of the bill, Representative Orr, was asked
about the potential instances in which the proposed legislation might interfere with
recognized common law and other governmental privileges, such as the attorneyclient privilege,189 to support an investigation such as one that probed “the propriety
of a secret service fund to be used upon the discretion of the executive
department,”190 or to support inquires about “diplomatic matters.”191 Representative
Orr responded that the House has and would continue to follow the practice of the
British Parliament, which “does not exempt a witness from testifying upon any such
ground. He is not excused from testifying there. That is the common law of
Parliament.”192 Later in the same debate, a proposed amendment to expressly
recognize the attorney-client privilege in the statute was overwhelmingly defeated.193
With respect to the secret service fund, Representative Orr explained “that this
House has already exercised the power and authority of forcing a disclosure as to
what disposition had been made for the secret-service fund. And it is right and
proper that is should be so. Under our Government – under our system of laws –
under our Constitution – I should protest against the use of any money by an
executive authority, where the House had not the right to know how every dollar had
been expended, and for what purpose.”194 Representative Orr’s reference was to a
contentious investigation in 1846, regarding charges that Daniel Webster, while
Secretary of State, had improperly disbursed monies from a secret contingency fund
used by the President for clandestine foreign operations. The charges led the
committee to issue subpoenas to former Presidents John Quincy Adams and John
Tyler. President Polk sent the House a list of the amounts in the contingent fund for
the relevant period, which was prior to his term, but refused to furnish documentation
of the uses that had been made of the expenditures on the grounds that a sitting
President should not publically reveal the confidences of his predecessors.195
President Polk’s refusal to provide the information was mooted by the actions of the
two investigatory committees established by the House. Former President Tyler
testified196 and former President Adams filed a deposition197 detailing the uses of the
189
Id. at 431 (statement of Rep. Dunn) (asking that “if the committee considered, and if they
did so consider, what is their judgment in reference to the effect of this bill upon
communications by the universal law regarded as privileged, to attorneys and counselors at
law? Are they required to divulge things communicated to them in confidence, and for wise
and high purposes of public purpose by their clients?”).
190
Id.
191
Id.
192
Id. (statement of Rep. Orr).
193
Id. at 441-43.
194
Id. at 431.
195
See RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW:
SUBSTANCE AND PROCEDURE, 949 (4th ed. 2007) (citing 16 CONG. GLOBE 698 (April 20,
1846)).
196
Id. (citing H.Rept. 684, 29th Cong., 1st Sess., 8-11 (1846)).
197
Id. (citing H.Rept. 686, 29th Cong., 1st Sess., 22-25 (1846)).
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fund during their Administrations. In addition, President Polk’s Secretary of State,
James Buchanan, was subpoenaed and testified.198 Ultimately, Mr. Webster was
found innocent of any wrongdoing. From these references, it appears that the House
was, in 1857, sensitive to and cognizant about its oversight and investigative
prerogatives vis-a-vis the executive branch. It therefore appears arguable that in the
context of the debate, the contempt statute was not intended to preclude the House’s
ability to engage in oversight of the executive branch.
Finally, OLC’s contention that the criminal contempt statute has only been used
once, in the Burford/Superfund dispute, appears to be based on the fact that the
contempt of Anne Burford was the only contempt voted on by the full House of
Representatives. Significantly, prior to the Superfund dispute, committees and
subcommittees of the House of Representatives199 had voted contempt citations
against Secretary of State Henry Kissinger (1975); Secretary of Commerce Rogers
C. B. Morton (1975); Secretary of Health, Education, and Welfare Joseph A.
Califano, Jr. (1978); Secretary of Energy Charles Duncan (1980); Secretary of Energy
James B. Edwards (1981); Secretary of the Interior James Watt (1982), and Attorney
General William French Smith (1983). Since the Superfund dispute, contempt
citations have been voted against White House Counsel John M. Quinn (1996),
Attorney General Janet Reno (1998), and White House Chief of Staff Joshua Bolten
(2007).200 In every instance, save for John M. Quinn,201 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.202
Civil Contempt
Civil Contempt in the Senate. As an alternative to both the inherent
contempt power of each House and the criminal contempt statutes,203 in 1978
198
Id. (citing H.Rept. 686, 29th Cong., 1st Sess., 4-7 (1846)).
199
We have been unable to locate any record of a vote by a Senate committee or
subcommittee of a contempt citation against an executive branch official.
200
In 2007, the House Judiciary Committee also held former White House Counsel Harriet
Miers in contempt marking the first time that a former Executive Branch official has ever
been so held.
201
Mr. Quinn was directed by President Clinton to assert a “protective claim of privilege,”
which was abandoned and never “formalized” when a floor vote for contempt was scheduled
and the documents in question were released.
202
203
See Fisher, supra note 169 at 111-34.
The inadequacies of the inherent and criminal contempt procedures had been recognized
by the Congress itself, the courts, and by students of the subject. See, e.g., Representation
of Congress and Congressional Interests In Court, Hearings before the Senate Judiciary
Subcommittee on Separation of Powers, 94th Cong, 2d Sess., 556-68 (1976); United States
v. Fort, 443 F.2d 670, 677-78 (D.C. Cir. 1970), cert. denied, 403 U.S. 932 (1971); Tobin v.
United States, 306 F.2d 270, 275-76 (D .C. Cir. 1962), cert. denied, 371 U.S. 902 (1962);
Sky, supra note 77.
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Congress enacted a civil contempt procedure,204 which is applicable only to the
Senate.205 The statute gives 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. Generally
such a suit will be brought by the Senate Legal Counsel, on behalf of the Senate or
a Senate committee or subcommittee.206
Pursuant to the statute, the Senate may “ask a court to directly order compliance
with [a] subpoena or order, or they may merely seek a declaration concerning the
validity of [the] subpoena or order. By first seeking a declaration, [the Senate would
give] the party an opportunity to comply before actually [being] ordered to do so by
a court.”207 It is solely within the discretion of the Senate whether or not to use such
a two-step enforcement process.208
Regardless of whether the Senate seeks the enforcement of, or a declaratory
judgement concerning a subpoena, the court will first review the subpoena’s
validity.209 If the court finds that the subpoena “does not meet applicable legal
standards for enforcement,” it does not have jurisdiction to enjoin the congressional
proceeding. Because of the limited scope of the jurisdictional statute and because of
Speech or Debate Clause immunity for congressional investigations,210 “when the
court is petitioned solely to enforce a congressional subpoena, the court’s jurisdiction
is limited to the matter Congress brings before it, that is whether or not to aid
Congress in enforcing the subpoena.211 If the individual still refuses to comply, he
204
Ethics in Government Act of 1978, P.L. 95-521, §§ 703, 705, 92 Stat. 1877-80 (1978)
(codified as amended at 2 U.S.C. §§ 288b(b) 288d, and 28 U.S.C. § 1364 (2000)).
205
The conference report accompanying the legislation which established the procedure
explained that the relevant House connuittees had not yet considered the proposal for
judicial enforcement of House subpoenas. H.Rept. 95-1756, 95th Cong., 2d Sess., 80 (1978).
206
Although the Senate or the committee may be represented by any attorney designated by
the Senate, in most cases such an action will be brought by the Senate Legal Counsel after
an authorizing resolution has been adopted by the Senate. 2 U.S.C. § 288b(b) (2000). See
28 U.S.C. § 1364(d) (2000). A resolution directing the Senate Legal Counsel to bring an
action to enforce a committee or subcommittee subpoena must be reported by a majority of
the members voting, a majority being present, of the full committee. The report filed by the
committee must contain a statement of (a) the procedure employed in issuing the subpoena;
(b) any privileges or objections raised by the recipient of the subpoena; (c) the extent to
which the party has already complied with the subpoena; and (d) the comparative
effectiveness of the criminal and civil statutory contempt procedures and a trial at the bar
of the Senate. 2 U.S.C. § 288(c) (2000).
207
S.Rept. No. 95-170, 95th Cong., 1st Sess., 89 (1977).
208
Id. at 90.
209
Id. at 4.
210
See U.S. CONST. Art. 1, § 6, cl. 3.
211
S.Rept. No. 95-170, 95th Cong., 1st Sess., 94 (1977).
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may be tried by the court in summary proceedings for contempt of court,212 with
sanctions being imposed to coerce their compliance.213
Without affecting the right of the Senate to institute criminal contempt
proceedings or to try an individua1 for contempt at the bar of the Senate,214 this
procedure gives the Senate the option of a civil action to enforce a subpoena.215 Civil
contempt might be employed when the Senate is more concerned with securing
compliance with the subpoena or with clarifying legal issues than with punishing the
contemnor. Unlike criminal contempt, in a civil contempt, sanctions (imprisonment
and/or a fine) can be imposed until the subpoenaed party agrees to comply thereby
212
As the statute makes clear, a party refusing to obey the court’s order will be in contempt
of the court, not of Congress itself. 28 U.S.C. § 1364(b) (2000); see also S.Rept. No. 95-170,
95th Cong., 1st Sess., 41, 92. It is also worth noting that the Senate has in place a standing
order, adopted in 1928, that appears to provide the authority, independent of the civil
contempt statute, for a committee to seek a court order to enforce its subpoenas. The
standing order states that
Resolved, That hereafter any committee of the Senate is hereby authorized to bring
suit on behalf of and in the name of the United States in any court of competent
jurisdiction if the committee is of the opinion that the suit is necessary to the
adequate performance of the powers vested in it or the duties imposed upon it by
the Constitution, resolution of the Senate, or other law. Such suit may be brought
and prosecuted to final determination irrespective of whether or not the Senate is
in session at the time the suit is brought or thereafter. The committee may be
represented in the suit either by such attorneys as it may designate or by such
officers of the Department of Justice as the Attorney General may designate upon
the request of the committee. No expenditures shall be made in connection with any
such suit in excess of the amount of funds available to the said committee. As used
in this resolution, the term "committee'' means any standing or special committee
of the Senate, or any duly authorized subcommittee thereof, or the Senate members
of any joint committee.
See S. Jour. 572, 70-1, May 28, 1928. It is unclear what effect, if any, the passage of the
civil contempt procedure in 1978 has had on this Standing Order. The Standing Order
appears to have never been invoked and, therefore, its validity remains an open question.
213
28 U.S.C. § 1364(b) (2000).
214
Not only do the inherent and criminal contempt procedures remain available as an
alternative to the civil contempt mechanism, but the legislative history indicates that the
civil and criminal statutes could both be employed in the same case. “Once a committee
investigation has terminated, a criminal contempt of Congress citation under 2 U.S.C. § 192
might still be referred to the Justice Department if the Congress finds this appropriate. Such
prosecution for criminal contempt would present no double jeopardy problem.” S.Rept. No.
95-170, 95th Cong., 1st Sess., 95 (citations omitted); see also Hearings Before the Senate
Committee on Governmental Affairs on S. 555, 95th Cong., 1st Sess., 798-800 (1977)
[hereinafter Civil Contempt Hearing].
215
For a more detailed analysis of the civil contempt procedure and a comparison with the
other options available to the Senate when faced with a contempt, See S.Rept. No. 95-170,
95th Cong., 1st Sess., 16-21, 40-41, 88-97; see also Civil Contempt Hearing, supra note 212,
at 59-62, 69 et seq. (statement of Senator Abourezk and attachments); 123 CONG. REC.
20,956-21,019 (June 27, 1977).
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creating an incentive for compliance; namely, the termination of punishment.216
Since the statute’s enactment in 1979, the Senate has authorized the Office of Senate
Legal Counsel to seek civil enforcement of a subpoena for documents or testimony
at least 6 times, the last in 1995. None has been against executive branch officials.
The civil contempt process is arguably more expeditious than a criminal
proceeding, where a court may more closely scrutinize congressional procedures and
give greater weight to the defendant’s constitutional rights. The civil contempt
procedure also provides an element of flexibility, allowing the subpoenaed party to
raise possible constitutional and other defenses (e.g., the privilege against selfincrimination, lack of compliance with congressional procedures, or an inability to
comply with the subpoena)217 without risking a criminal prosecution.
Civil contempt, however, has limitations. Most notable is that 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.218 Enacted as part of the Ethics in Government Act
of 1978, early drafts of the civil contempt statute did not include an exception for
federal government officers and employees acting within the scope of their duties.
It appears that the section was drafted primarily in response to the District Court’s
dismissal, for lack of jurisdiction, of an Ervin Committee’s request for a declaratory
judgment regarding the lawfulness of its subpoena of President Nixon’s tape
216
The act specifies that “an action, contempt proceeding, or sanction .... shall not abate
upon adjournment sine die by the Senate at the end of a Congress if the Senate or the
committee or subcommittee ... certifies to the court that it maintains its interest in securing
the documents, answers, or testimony during such adjournment.” 28 U.S.C. § 1364(b)
(2000). In the first case brought under the new procedure, the witness unsuccessfully argued
that the possibility of “indefinite incarceration” violated the due process and equal
protection provisions of the Constitution, and allowed for cruel and unusual punishment.
Application of the U.S. Senate Permanent Subcommittee on Investigations, 655 F.2d 1232
(D.C. Cir.), cert. denied, 454 U.S. 1084 (1981).
217
S.Rept. No. 95-170, 95th Cong., 1st Sess., 93.
218
28 U.S.C. § 1364(a) (2000). The statutory exception was explained in the Senate’s
Report as follows:
This jurisdictional statute applies to a subpoena directed to any natural person
or entity acting under color of state or local authority. By the specific terms of
the jurisdictional statute, it does not apply to a subpoena directed to an officer or
employee of the Federal Government acting within his official capacity. In the
last Congress there was pending in the Committee on Government Operations
legislation directly addressing the problems associated with obtaining
information from the executive branch. (See S. 2170, “The Congressional Right
to Information Act”). This exception in the statute is not intended to be a
congressional finding that the federal courts do not now have the authority to
hear a civil action to enforce a subpoena against an officer or employee of the
federal government. However, if the federal courts do not now have this
authority, this statute does not confer it.
S.Rept. No. 95-170, 95th Cong., 1st Sess., 91-92
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recordings.219 Thus, one of the purposes of the statute was to expressly confer
jurisdiction upon courts to determine the validity of congressional requests for
information.
During the course of the debates regarding this legislation, the executive branch
strongly opposed conferring jurisdiction upon the federal courts to decide such
sensitive issues between Congress and the executive branch. Testifying before a
subcommittee of the Senate Committee on Governmental Operations, then-Assistant
Attorney General Antonin Scalia argued 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.”220 In response,
Congress amended the proposed legislation excluding from its scope federal officers
and employees acting in their official capacity. However, as noted in a report from
the House Judiciary Committee in 1988, the exclusion was to apply only in cases in
which the President had directed the recipient of the subpoena not to comply with its
terms.221
Civil Contempt in the House of Representatives. While the House of
Representatives cannot pursue actions under the Senate’s civil contempt statute
discussed above, there are numerous examples of the House, by resolution, affording
special investigatory committees authority not ordinarily available to its standing
committees. Such special panels have often been vested with staff deposition
authority, and given the particular circumstances, special panels have also been
vested with the authority to obtain tax information, as well as the authority to seek
international assistance in information gathering efforts abroad.222 In addition,
several special panels have been specifically granted the authority to seek judicial
orders and participate in judicial proceedings.223
For example, in 1987, the House authorized the creation of a select committee
to investigate the covert arms transactions with Iran (Iran-Contra). As part of this
resolution, the House provided the following authorization:
(3) The select committee is authorized ... to require by subpoena or otherwise the
attendance and testimony of such witnesses ... as it deems necessary, including
all intelligence materials however classified, White House materials, ... and to
obtain evidence in other appropriate countries with the cooperation of their
governments. ... (8) The select committee shall be authorized to respond to any
219
See Senate Select Committee on Presidential Campaign Activities v. Nixon, 366 F. Supp.
51 (D.D.C. 1973).
220
Executive Privilege - Secrecy in Government: Hearings Before the Subcomm. on
Intergovernmental Relations of the Senate Comm. on Government Operations, 94th Cong.,
1st Sess., 117 (1975).
221
Clarifying the Investigatory Powers of the United States Congress, H.Rept. 100-1040,
100th Cong. 2d Sess., 2 (1988).
222
See supra note 19; see also infra notes 228-232 and accompanying text.
223
Id.
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judicial or other process, or to make any applications to court, upon consultation
with the Speaker consistent with [House] rule L.224
The combination of broad subpoena authority, that expressly encompassed the White
House, and the ability to make “any applications to court,” arguably suggests that the
House contemplated the possibility that a civil suit seeking enforcement of a
subpoena against a White House official was possible. By virtue of the resolution’s
language, it appears reasonable to conclude that the House decided to leave the
decision in the hands of the select committee, consistent with House Rule L (now
House Rule VIII governing subpoenas).225 It may be noted, then, that while the
House select committee did not attempt to seek judicial enforcement of any of its
subpoenas, the authorization resolution did not preclude the possibility.
Among the more prominent attempts at utilizing the authority to make
applications in court granted by a House of Congress to a select committee occurred
during the investigation into the Iran-Contra affair. In 1987, the Senate Select
Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition
issued an order requiring that former Major Richard V. Secord execute a consent
directive authorizing the release of his offshore bank records and accounts to the
Committee.226 When Mr. Secord refused to sign the consent directive, the Committee
sought to obtain a court order directing him to comply.227 While the Committee did
not prevail in the Secord litigation, the matter was not disposed of on jurisdictional
grounds. Specifically, the district court noted its jurisdiction pursuant to 28 U.S.C.
§ 1364, as Mr. Secord was a private citizen. Moreover, there is no mention or
indication of any challenge to the Committee’s ability to seek such an order. Rather,
the case was decided on Fifth Amendment grounds, with the court holding that there
was a testimonial aspect to requiring the signing of the consent directive.228 Thus, the
court concluded that the Committee’s order was a violation of Mr. Secord’s Fifth
Amendment right against self-incrimination.229
A review of modern House precedents indicates at least 5 other special or select
committees that have been granted, via House resolution, both subpoena authority as
well as the ability to seek and participate in judicial actions. These include The
224
See H.Res. 12, 100th Cong., 1st Sess., §§ 3, 8 (1987) (emphasis added).
225
This resolution was initially added to the House Rules as Rule L by the 97th Congress.
See H.RES. 5, 97th Cong. (1981). The 106th Congress re-codified the rules and this provision
became House Rule VIII, which is where it remains today as amended. See H.RES. 5, 106th
Cong. (1999).
226
Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan
Opposition v. Secord, 664 F.Supp. 562, 563 (D.D.C. 1987).
227
Id.
228
Id. at 564-65.
229
Id. at 566. The ruling was not appealed because of the time strictures imposed on the
House and Senate Select Committee’s inquiry. It may be noted that in 1988 the Supreme
Court adopted the Senate’s argument in a different case, holding that such a directive is not
testimonial in nature. See Doe v. United States, 487 U.S. 201 (1988).
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October Surprise Investigation;230 The White House Travel Office Inquiry;231 The
House Campaign Finance Investigation;232 The Select Committee on National
Security Commercial Concerns;233 and The Teamsters Election Investigation.234
Again, while there is no record to indicate that any of these committees utilized their
authority to participate in judicial proceedings to bring a civil subpoena enforcement
action, the resolution language appears to indicate that such a suit was authorized by
the full House.
A potential hurdle to a resolution by the House of Representatives authorizing
the pursuit of a civil court order is the jurisdiction of the federal courts. Such
jurisdiction, specifically federal district court jurisdiction, where a civil action for
enforcement of a congressional subpoena would be brought, is derived from both
Article III of the Constitution and federal statute. Article III of the Constitution
states, in relevant part, that “[t]he Judicial Power shall extend to all Cases, in Law
and Equity, arising under this Constitution, the Laws of the United States ....”235 The
Supreme Court has interpreted the language “arising under” broadly, essentially
permitting federal jurisdiction to be found whenever federal law “is a potentially
important ingredient of a case.”236 Conversely, the federal-question jurisdiction
statute, first enacted in 1875,237 while containing almost identical language to Article
III, has been interpreted by the Court to be much narrower in scope. As the Court
explained in Verlinden B.V. v. Central Bank of Nigeria:
Although the language of 1331 parallels that of the “Arising Under” Clause of
Art. III, this Court never has held that statutory “arising under” jurisdiction is
identical to Art. III “arising under” jurisdiction. Quite the contrary is true. ...
[T]he many limitations which have been placed on jurisdiction under 1331 are
not limitations on the constitutional power of Congress to confer jurisdiction on
the federal courts ... Art. III “arising under” jurisdiction is broader than
federal-question jurisdiction under 1331 ....”238
The fact that the statutory jurisdiction provided by Congress is narrower than the
Constitution’s grant of judicial power may give rise to an argument that the statutory
grant of jurisdiction cannot be used by the House should it merely adopt a resolution
230
See H.Res. 258, 102d Cong., 1st Sess., (1991).
231
See H.Res. 369, 104th Cong., 2d Sess., (1996).
232
See H.Res. 167, 105th Cong., 1st Sess., (1997).
233
See H.Res. 463, 105th Cong., 2d Sess., (1998).
234
See H.Res. 507, 105th Cong., 2d Sess., (1998).
235
U.S. CONST., Art. III, § 2, cl. 1.
236
See ERWIN CHEMERINSKY, FEDERAL JURISDICTION, 264 (3d Ed. 1999) (citing Osborn v.
Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824)).
237
See Act of Mar. 3, 1875, ch. 137, 18 Stat. 470 (codified as amended at 28 U.S.C. § 1331
(2000) (stating that “[t]he district courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States.”).
238
Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 494-95 (1983) (internal
quotation marks and citations omitted).
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authorizing a subpoena enforcement proceeding to be brought in court. Following
this argument to its conclusion might suggest that both Houses of Congress must pass
a law, signed by the President, which authorizes a civil enforcement action to be
brought in federal district court because a mere one-House resolution will not suffice
to provide such jurisdiction.
We have found no court or commentator that has expressly adopted this
argument. It therefore remains unclear whether the existing statutory language for
jurisdiction can be definitively said to be inadequate. Rather, the limited Supreme
Court and other federal court precedent that exists may be read to suggest that the
current statutory basis is sufficient to establish jurisdiction for a civil action of the
type contemplated here if the representative of the congressional committee is
specifically authorized by a House of Congress to act.
In 1928, the Supreme Court decided Reed v. The County Commissioners of
Delaware County, Pennsylvania,239 which involved a special committee of the United
States Senate charged, by Senate resolution, with investigating the means used to
influence the nomination of candidates for the Senate.240 The special committee was
authorized to “require by subpoena or otherwise the attendance of witnesses, the
production of books, papers, and documents, and to do such other acts as may be
necessary in the matter of said investigation.”241 During the course of its
investigation into the disputed election of William B. Wilson of Pennsylvania to the
Senate, the committee sought to obtain the “boxes, ballots, and other things used in
connection with the election.”242 The County Commissioners, who were the legal
custodians of said materials, refused to provide them to the committee, thus
necessitating the lawsuit. The Supreme Court, after affirming the powers of the
Senate to “obtain evidence related to matter committed to it by the Constitution”243
and having “passed laws calculated to facilitate such investigations,”244 nevertheless
held that it was without jurisdiction to decide the case. The Senate had relied on the
resolution’s phrase “such other acts as may be necessary” to justify its authority to
bring such a suit. According to the Court, however, that phrase “may not be taken
to include everything that under any circumstances might be covered by its words.”245
As a result, the Court held that “the Senate did not intend to authorize the committee,
or anticipate that there might be need, to invoke the power of the Judicial
Department. Petitioners are not ‘authorized by law to sue.’”246 The Court in Reed
made no mention of the jurisdictional statute that existed at the time. Rather, the
Court appears to have relied on the fact that the Senate did not specifically authorize
the committee to sue; therefore, absent particular language granting the power to sue
239
277 U.S. 376 (1928).
240
Id. at 378 (citing S. Res 195, 69th Cong., 1st Sess. (1926)).
241
Id. at 378-79.
242
Id. at 387.
243
Id. at 388 (citing McGrain v. Daugherty, 273 U.S. 135, 160-174 (1927)).
244
Id. (citing R.S. §§ 101-104, (codified as amended at 2 U.S.C. §§ 192, 194 (2000))).
245
Id. at 389.
246
Id.
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in court, there can be no basis for judicial jurisdiction over such a suit.247 Read in this
manner, Reed appears to suggest that had the Senate resolution specifically
mentioned the power to sue, the Court may have accepted jurisdiction and decided
the case on its merits. Such a reading of Reed is supported by a recent district court
ruling involving the question of whether Congress authorized judicial enforcement
of Member demands for information from executive branch agencies.
In Waxman v. Thompson, a 2006 opinion of the District Court for the Central
District of California,248 the plaintiffs, all minority members of the House
Government Reform Committee, sought a court order pursuant to 5 U.S.C. §§ 2954
and 7211 – often times referred to as the “rule of seven” – granting them access to
Department of Health and Human Services records related to the anticipated costs of
the Medicare Prescription Drug Implementation and Modernization Act of 2003.249
The court, in dismissing the case for lack of jurisdiction, addressed the argument
made by the plaintiffs that 5 U.S.C. § 2954, which requires that “[a]n Executive
agency, on request of the Committee on Government Operations of the House of
Representatives, or of any seven members thereof ... shall submit any information
requested of it relating to any matter within the jurisdiction of the committee,”250
implicitly delegated to Members to right to sue to enforce their informational
demands.251 The court, in rejecting this argument, relied on the Supreme Court’s
holding in Reed v. County Commissioners.252 Specifically, the court noted that
Reed’s holding “put Congress on notice that it was necessary to make authorization
to sue to enforce investigatory demands explicit if it wished to ensure that such
power existed.”253 According to the court, like the Senate resolution at issue in Reed,
because § 2954 is silent with respect to civil enforcement it stands to reason that the
Congress never intended to provide the Members with the power to seek civil judicial
orders to enforce their document demands.
The argument that a mere one-house resolution is not sufficient to provide
jurisdiction also derives support from the ruling in Senate Select Committee on
Presidential Campaign Activities v. Nixon,254 a 1973 decision by the District Court
for the District of Columbia. In Senate Select Committee, the court held that there
was no jurisdictional statute available that authorizes the court to hear and decide the
merits of the Committee’s request for a declaratory judgment, mandatory injunction,
and writ of mandamus arising from President Nixon’s refusal to produce tape
recording and other documents sought by the Committee pursuant to a subpoena
247
It appears that the Court’s decision in Reed prompted the Senate to adopt its Standing
Order. See supra note 209.
248
Waxman v. Thompson, No. 04-3467, slip op. (C.D. Cal. July 24, 2006).
249
Id. at 2.
250
5 U.S.C. § 2954 (2000) (emphasis added).
251
Waxman v. Thompson, No. 04-3467, slip op. at 21 (C.D. Cal. July 24, 2006).
252
Id. at 21, n. 42.
253
Id.
254
366 F. Supp. 51 (D.D.C. 1973).
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duces tecum.255 In reaching its conclusion, the court addressed several potential bases
for jurisdiction: 28 U.S.C. § 1345, United States as a Plaintiff; 28 U.S.C. § 1361,
Action to Compel an Officer of the United States to Perform His Duty; 5 U.S.C. §§
701-706, the Administrative Procedure Act; and, of particular relevance here, 28
U.S.C. § 1331, the federal question jurisdiction statute.256
Focusing on 28 U.S.C. § 1331, the court noted that the statute at the time
contained a minimum “amount in controversy” requirement of “$10,000 exclusive
of interest and costs.”257 The court stated that “[t]he satisfaction of a minimum
amount-in-controversy is not a technicality; it is a requirement imposed by Congress
which the courts may not dispense with at their pleasure.”258 Because the Select
Committee could not establish a theory under which the amount in controversy
requirement was satisfied, the court dismissed the case for lack of subject matter
jurisdiction.259
Senate Select Committee may still be cited for the proposition that, absent a
specific congressional enactment, Congress may not seek to enforce a subpoena in
federal court. It is important to note, however, that not only have subsequent cases
held that “[w]here fundamental constitutional rights are involved, this court has been
willing to find satisfaction of the jurisdictional amount requirement for federal
question jurisdiction,”260 but also that Congress specifically removed the amount in
controversy requirement for federal question jurisdiction in 1980.261 Given these
developments, combined with the reading of Reed v. County Commissioners
suggested above, it appears possible to argue that a specifically authorized
congressional committee may bring a civil action to enforce a subpoena using 28
U.S.C. § 1331 as a basis for federal question jurisdiction. Such an argument has been
suggested by the district court in Waxman v. Thompson, the “rule-of-seven” case
discussed above. According to the court in Waxman, the holdings of Reed, Senate
Select Committee and United States v. AT&T262 – a case involving the intervention
by a House committee chairman into a lawsuit by the Department of Justice, which
was attempting to enjoin compliance with a committee subpoena by AT&T – suggest
that “legislative branch suits to enforce requests for information from the executive
255
Id. at 61.
256
Id. at 55-61.
257
28 U.S.C. § 1331 (1970).
258
Senate Select Committee, 366 F. Supp. at 59 (citing Holt v. Indiana Mfg. Co., 176 U.S.
68 (1900); United States v. Sayward, 160 U.S. 493 (1895)) (emphasis in original).
259
Id. at 61 (stating that “[e]ach of plaintiffs’ assertions ... regarding the
amount-in-controversy are legally inadequate, and finding no possible valuation of the
matter which satisfies the $10,000 minimum, the Court cannot assert jurisdiction by virtue
of § 1331.”).
260
United States v. American Telephone & Telegraph Co., 551 F.2d 384, 389 (D.C. Cir.
1976) (citing Committee for GI Rights v. Callaway, 518 F.2d 466, 472-73 (1975)); see also
Greer v. Spock, 424 U.S. 828 (1976)
261
See P.L. 96-486 § 2(a), 94 Stat. 2369 (1980).
262
567 F.2d 121
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branch are justiciable if authorized by one or both Houses of Congress.”263 While we
have found no instance where a committee of either the House or Senate has
attempted to use this argument to enforce a subpoena, it appears to be consistent with
both the plain meaning of the statute and a reasonable interpretation of the existing
case law.
Although, as indicated, prior to the 110th Congress, there have been no previous
attempts by a House of Congress to seek civil enforcement of subpoenas in federal
court authorized solely by resolution of a single House,264 there have been situations
that appear to be closely analogous. On several occasions the House of
Representatives has authorized, via House Resolution, the intervention by counsel
representing a House Committee into civil litigation involving congressional
subpoenas.
In June of 1976, subpoenas were issued to the American Telephone and
Telegraph Company (AT&T) by the Subcommittee on Oversight and Investigations
of the House Committee on Interstate and Foreign Commerce. The Subcommittee
was seeking copies of “all national security request letters sent to AT&T and its
subsidiaries by the FBI as well as records of such taps prior to the time when the
practice of sending such letters was initiated.”265 Before AT&T could comply with
the request, the Department of Justice (DOJ) and the Subcommittee’s chairman,
Representative John Moss, entered into negotiations seeking to reach an alternate
agreement which would prevent AT&T from having to turn over all its records.266
When these negotiations broke down, the DOJ sought an injunction in the District
Court for the District of Columbia prohibiting AT&T from complying with the
Subcommittee’s subpoenas.
The House of Representatives responded to the litigation by authorizing
Representative Moss to intervene in the suit on behalf of the Committee on Interstate
and Foreign Commerce and the House of Representatives.267 Specifically, the
authorization for intervention was accomplished by House Resolution, which
provided that Chairman Moss was to represent the Committee and the full House “to
secure information relating to the privacy of telephone communications now in the
possession of [AT&T] for the use of the Committee and the full House.”268 In
addition, the resolution authorized Chairman Moss to hire a special counsel, use not
263
Waxman v. Thompson, No. 04-3467, slip op. at 29 (C.D. Cal. July 24, 2006) (emphasis
added).
264
The recent litigation filed during the 110th Congress by the House Judiciary Committee
represents the first such attempt at civil enforcement. See infra notes 405-416 and
accompanying text.
265
United States v. American Telephone & Telegraph, 551 F.2d 384, 385 (D.C. Cir. 1976).
266
Id. at 386. The precise details of the delicate negotiations between the DOJ and the
Subcommittee are explained by the court, see id. at 386-88, and, therefore, will not be
recounted here.
267
See H.Res. 1420, 94th Cong. 2d Sess. (1976); see also H.Rept. 94-1422, 94th Cong. 2d
Sess. (1976).
268
Id.
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more than $50,000 from the contingent fund of the Committee to cover expenses, and
to report to the full House on matters related as soon as practicable.269 The resolution
was adopted by the House by a vote of 180-108 on August 26, 1976.270
Chairman Moss’s intervention into the proceedings was noted by the district
court, and does not appear to have been contested by either AT&T or the DOJ.271
Chairman Moss remained an intervener pursuant to the House Resolution through the
district court proceeding and two appeals to the Court of Appeals for the District of
Columbia Circuit until an agreement was reached with respect to the disclosure of
the documents sought.
A second intervention authorization, involving litigation between Ashland Oil
and the Federal Trade Commission (FTC), also occurred in 1976. This case arose
when Ashland Oil sought to enjoin the FTC from transferring its information to the
Subcommittee on Oversight and Investigations of the Committee on Interstate and
Foreign Commerce at the request of Subcommittee Chairman Moss. When Ashland
Oil obtained a temporary restraining order, the subcommittee promptly authorized
a subpoena for the documents and Chairman Moss filed a resolution for
authorization from the House to allow him to intervene with special counsel in the
suit that Ashland Oil had filed seeking to enjoin the FTC from transferring the
documents to the subcommittee.272 The district court granted Chairman Moss’s
motion to intervene and ultimately refused to grant the injunction.273 The Court of
Appeals affirmed on the grounds that “no substantial showing was made that the
materials in the possession of the FTC will necessarily be ‘made public’ if turned
over to Congress.”274
While AT&T and Ashland Oil represent affirmative authorizations for
intervention by a house of Congress, In Re Beef Industry Antitrust Litigation,275
provides an example of what may occur should a house of Congress not provide
express authorization to be represented in court. In In Re Beef, the chairmen of two
subcommittees of the House of Representatives276 sought to intervene in a pending
269
Id.
270
See 122 CONG. REC. 27,865-866 (Aug. 26, 1976).
271
See United States v. American Telephone & Telegraph, 419 F.Supp. 454, 458 (stating that
“[t]he effect of any injunction entered by this Court enjoining the release of materials by
AT&T to the Subcommittee would have the same effect as if this Court were to quash the
Subcommittee's subpoena. In this sense the action is one against the power of the
Subcommittee and should be treated as such, assuming that Representative Moss has
authority to speak for the Subcommittee.”).
272
See generally, Ashland Oil, Inc. v. FTC, 548 F.2d 977 (D.C. Cir. 1976); see also H.Res.
899, 94th Cong., 1st Sess. (1975); 121 CONG. REC. 41,707 (1976).
273
Ashland Oil, Inc. v. FTC, 409 F.Supp. 297, 301 (D.D.C. 1976).
274
Ashland Oil, 548 F.2d at 979.
275
589 F.2d 786 (5th Cir. 1979).
276
The Subcommittee on Oversight and Investigations of the Committee on Interstate and
(continued...)
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antitrust dispute for the purpose of obtaining access to documents subpoenaed by
subcommittees from a party to the litigation. The subpoenaed documents had been
obtained through litigation discovery and were thus subject to a standing court
protective order. The district court refused to modify its protective order allowing
the party to comply with the subpoena.277 The subcommittee chairmen appealed to
the United States Court of Appeals for the Fifth Circuit.
On appeal, the Fifth Circuit entertained a motion to dismiss by one of the
plaintiffs on the grounds that the chairmen had not obtained authorization from the
full House of Representatives before filing their initial motion before the district
court. The plaintiffs relied on what was then Rule XI, cl. 2(m)(2)(B) of the Rules of
the House of Representatives, which provided that “[c]ompliance with any subpoena
[sic] issued by a committee or subcommittee ... may be enforced only as authorized
or directed by the House.”278 The committee chairmen responded by arguing that the
rule was not applicable as they were not seeking to enforce their subpoenas, but
rather were seeking a modification of the district court’s protective order.279
Therefore, according to the chairmen, they did not require authorization from the full
House of Representatives to appear in court.280
The Fifth Circuit rejected the chairmen’s arguments, noting specifically that the
House Rules “require[] House authorization not only for direct enforcement of a
subpoena but also in any instance when a House committee seeks to institute or to
intervene in litigation and, of course, to appeal from a court decision, particularly
when the purpose is, as here, to obtain the effectuation of a subpoena.”281 The court
also extensively relied on the Ashland Oil precedent noting that similar to this case,
the chairman in Ashland Oil was not seeking to enforce a subpoena, rather merely
attempting to prevent an injunction from being issued. 282 The failure of the chairmen
to obtain an authorization resolution from the full House in this case necessitated the
dismissal of their appeal without any decision on the merits.283
As neither AT&T, Ashland Oil, nor In Re Beef raised any questions regarding
the jurisdiction of the federal courts, it appears possible to argue that all that is legally
276
(...continued)
Foreign Commerce, and the Subcommittee on SBA and SBIC Authority and General Small
Business Problems of the Committee on Small Business. See id. at 788.
277
See In re Beef Industry Antitrust Litigation, 457 F.Supp. 210, 212 (C.D. Tex. 1978)
(stating that “the persons whom the Subcommittees have subpoenaed would not have
possession of the subpoenaed documents but for the discovery rules of the Federal Courts.
Congress by subpoenaing these documents is interfering with the processes of a Federal
Court in an individual case.”).
278
In Re Beef, 589 F.2d at 789.
279
Id.
280
Id.
281
Id. at 790-91.
282
Id. at 790.
283
Id. at 791.
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required for committees, the House General Counsel, or a House-retained private
counsel to seek civil enforcement of subpoenas or other orders is that authorization
be granted by resolution of the full House. Absent such authorization, it appears that
the courts will not entertain civil motions of any kind on behalf of Congress or its
committees. While some may still argue that a law passed by both Houses and
signed by the President conferring jurisdiction is required, it may be plausibly argued
that taken together, the combination of Reed’s requirement that congressional
authorization to sue be by express language, the willingness of federal courts to
accept properly authorized interventions, and the fact that the federal question
jurisdiction statute no longer contains an amount in controversy requirement, suggest
that if an authorization resolution by the House can be obtained there is a likelihood
that a reviewing court will find no legal impediment to seeking civil enforcement of
subpoenas or other committee orders.284
Non-Constitutional Limitations
Authorization and Jurisdiction. Although the courts have upheld the
authority of Congress to investigate and to cite a witness for contempt, they have also
established limits, rooted both in the language of the criminal contempt statute and
in the Constitution, on the investigatory and contempt powers. Recognizing that 2
U.S.C. § 192 is a criminal statute, the courts have accorded defendants the same
safeguards as defendants in other criminal proceedings.285
The criminal contempt statute is applicable to contempts committed by a person
“summoned as a witness by the authority of either House of Congress ... .”286 The
statute applies regardless of whether a subpoena has been issued by a committee or
by the full House or Senate.287 Although the statute specifically makes the contempt
284
Relatedly, the Department of Justice has, on numerous occasions, including most recently
in 1996, suggested that committees of Congress resolve inter-branch disputes involving the
enforcement of subpoenas by civil proceeding in federal court. See, e.g., H.Rept. 104-598,
104th Cong., 2d Sess., 63 (1996) (additional views of Hon. William F. Clinger, Jr.) (stating
that “I am astonished at hearing this recommendation by a Democrat President when the
contemnor is a Democrat after knowing that the concept of a civil remedy has been so
resoundingly rejected by previous Democrat Congresses when the contemnor was a
Republican.”); 10 Op. Off. Legal Counsel, 68, 87-89 (1986) (suggesting that “the courts may
be willing to entertain a civil suit brought by the House to avoid any question about the
possible applicability of the criminal contempt provisions of [2 U.S.C.] §§ 192 and 194.”);
8 Op. Off. Legal Counsel, 101, 139, n.40 (1984) (stating that “[t]he use of criminal contempt
is especially inappropriate ... because Congress has the clearly available alternative of civil
enforcement proceedings.”).
285
Russell v. United States, 369 U.S. 749 (1962); see also Sinclair v. United States, 279
U.S. 263 (1929). While most of the case law in this section of the report involves decisions
under the statutory criminal contempt procedure, many of the holdings would be applicable
to exercises of the new civil contempt statute and the inherent contempt power. See
S.Rept. No. 95-170, 95th Cong., 1st Sess., 41, 94.
286
287
2 U.S.C. § 192 (2000) (emphasis added).
McGrain v. Daughtery, 2 73 U.S. 135 (1927); see also Sinclair v. United States, 279
U.S. 263, 296 (1929).
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sanction applicable to a witness who has been “summoned,” the law applies whether
the individual is subpoenaed or appears voluntarily and then refuses to testify.288
A contempt conviction will not be upheld if the committee’s investigation has
not been clearly authorized by the full House or Senate.289 The investigation, and the
questions posed, must be within the scope of the committee’s jurisdiction.290 A
committee cannot issue a subpoena for a subject outside the scope of its jurisdiction.
Authorization from the parent body may take the form of a statute,291 a resolution,292
or a standing rule of the House or Senate.293 In the case of a subcommittee
investigation, the subject matter must fall within the scope of authority granted to the
subcommittee by the full committee.294 Investigations may be conducted, and
subpoenas issued, pursuant to a committee’s legislative or oversight jurisdiction.295
288
Sinclair, 279 U.S. at 296.
289
United States v. Rumely, 343 U.S. 41 (1953); Tobin v. United States, 306 F.2d 270 (D.C.
Cir.), cert. denied, 371 U.S. 902 (1962); United States v. Patterson, 206 F.2d 433 (D.C. Cir.
1953).
290
See United States v. Rumely, 343 U.S. 41 (1953); see also United States v. Patterson, 206
F.2d 433 (D.C. Cir. 1953).
291
26 U.S.C. § 8021, 8022 (2000) (Joint Committee on Taxation).
292
Resolutions are generally used to establish select or special committees and to delineate
their authority. and jurisdiction. See 4 Deschler’s Precedents, supra note 87, ch. 17, 56;
see also e.g., S.Res. 23, 100th Cong. (Iran-Contra); Sen. Res. 495, 96th Cong. (Billy
Carter/Libya).
293
This mode is the most common today. Both the House and the Senate authorize standing
committees to make investigations within their jurisdiction, and permit such committees and
their subcommittees to issue subpoenas. See House Rules Manual, H.R. Doc. No. 108-241,
108th Cong. 2d Sess., Rule XI , cl. l (b) and cl. 2 (m) (2005); Senate Manual, S. Doc. No.
98-1, 98th Cong., 2d Sess., Rule XXVI, cl. 1 (1984).
294
Gojack v. United States, 384 U.S. 702, 706 (1966). The case involved a rule of the
former House Committee on Un-American Activities, which stated that “no major
investigations shall be initiated without the approval of a majority of the committee.” The
court reversed the contempt conviction in Gojack because the subcommittee’s investigation,
which resulted in the contempt citation, had not been approved by the committee as its rules
required.
Despite the provision of Senate Rule XXVI, cl.1, authorizing subcommittee subpoenas,
the rules of at least one committee expressly prohibit subcommittee subpoenas (Committee
on Small Business, Rule 3(c)), while another committee requires approval by the full
committee of any subcommittee subpoenas (Committee on Labor and Human Resources,
Rule 17 ).
295
A leading study of Senate committee jurisdiction noted that “oversight jurisdiction
necessarily flows from specific legislative enactments, but it also emanates from broader and
more vaguely defined jurisdiction which committees may exercise in particular subject
matter areas.” First Staff Report to the Temporary Select Committee to Study the Senate
Committee System, 94th Cong., 2d Sess., 104 (1976); see also United States v. Kamin, 136
F. Supp. 791, 801 (D. Mass. 1956) (providing a judicial application of oversight jurisdiction
in the investigatory context).
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In construing the scope of a committee’s authorizing rule or resolution, the
Supreme Court has adopted a mode of analysis not unlike that ordinarily followed in
determining the meaning of a statute: it looks first to the words of the resolution
itself, and then, if necessary, to the usual sources of legislative history, including
floor statements, reports, and past committee practice. As explained by the Court in
Barenblatt v. United States,296 “[j]ust as legislation is often given meaning by the
gloss of legislative reports, administrative interpretation, and long usage, so the
proper meaning of an authorization to a congressional committee is not to be derived
alone from its abstract terms unrelated to the definite content furnished them by the
course of congressional actions.”297 It appears that the clear articulation of committee
jurisdiction in both the House and Senate rules combined with the express
authorization of special committees by resolution has effectively eliminated the use
of jurisdiction as a defense to contempt proceedings.
Legislative Purpose. A committee’s investigation must have a legislative
purpose or be conducted pursuant to some other constitutional power of the
Congress, such as the authority of each House to discipline its own Members, judge
the returns of the their elections, and to conduct impeachment proceedings.298
Although the early case of Kilbourn v. Thompson299 held that the investigation in that
case was an improper probe into the private affairs of individuals, the courts today
generally will presume that there is a legislative purpose for an investigation, and the
House or Senate rule or resolution authorizing the investigation does not have to
specifically state the committee’s legislative purpose.300 In In re Chapman, 301 the
Court upheld the validity of a resolution authorizing an inquiry into charges of
corruption against certain Senators despite the fact that it was silent as to what might
be done when the investigation was completed. The Court stated:
The questions were undoubtedly pertinent to the subject matter of the
inquiry. The resolutions directed the committee to inquire “whether any Senator
has been, or is, speculating in what are known as sugar stocks during the
consideration of the tariff bill now before the Senate.” What the Senate might or
might not do upon the facts when ascertained, we cannot say nor are we called
upon to inquire whether such ventures might be defensible, as contended in
argument, but it is plain that negative answers would have cleared that body of
what the Senate regarded as offensive imputations, while affirmative answers
might have led to further action on the part of the Senate within its constitutional
powers.
296
360 U.S. 109, 117 (1959).
297
See Watkins v. United States, 354 U.S. 178, 209-215 (1957).
298
See, e.g., McGrain v. Daugherty, 273 U.S. 135 (1927); see also In Re Chapman, 166 U.S.
661 (1897).
299
103 U.S. 168 (1881).
300
McGrain v. Daugherty, 273 U.S. 135 (1927); see also Townsend v. United States, 95 F.2d
352 (D.C. Cir. 1938); LEADING CASES ON CONGRESSIONAL INVESTIGATORY POWER, 7
(Comm. Print 1976) [hereinafter cited as Leading Cases]. For a different assessment of
recent case law concerning the requirement of a legislative purpose, See Moreland, supra
note 57, at 232.
301
166 U.S. 661, 669 (1897).
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Nor will it do to hold that the Senate had no jurisdiction to pursue the
particular inquiry because the preamble and resolutions did not specify that the
proceedings were taken for the purpose of censure or expulsion, if certain facts
were disclosed by the investigation. The matter was within the range of the
constitutional powers of the Senate. The resolutions adequately indicated that
the transactions referred to were deemed by the Senate reprehensible and
deserving of condemnation and punishment. The right to expel extends to all
cases where the offense is such as in the judgment of the Senate is inconsistent
with the trust and duty of a member.
We cannot assume on this record that the action of the Senate was without
a legitimate object, and so encroach upon the province of that body. Indeed, we
think it affirmatively appears that the Senate was acting within its right, and it
was certainly not necessary that the resolutions should declare in advance what
the Senate meditated doing when the investigation was concluded.302
In McGrain v. Daugherty,303 the original resolution that authorized the Senate
investigation into the Teapot Dome Affair made no mention of a legislative purpose.
A subsequent resolution for the attachment of a contumacious witness declared that
his testimony was sought for the purpose of obtaining “information necessary as a
basis for such legislative and other action as the Senate may deem necessary and
proper.” The Court found that the investigation was ordered for a legitimate object.
It wrote:
The only legitimate object the Senate could have in ordering the
investigation was to aid it in legislating, and we think the subject matter was such
that the presumption should be indulged that this was the real object. An express
avowal of the object would have been better; but in view of the particular
subject-matter was not indispensable. ***
The second resolution–the one directing the witness be attached–declares
that this testimony is sought with the purpose of obtaining “information
necessary as a basis for such legislative and other action as the Senate may deem
necessary and proper.” This avowal of contemplated legislation is in accord with
what we think is the right interpretation of the earlier resolution directing the
investigation. The suggested possibility of “other action” if deemed “necessary
or proper” is of course open to criticism in that there is no other action in the
matter which would be within the power of the Senate. But we do not assent to
the view that this indefinite and untenable suggestion invalidates the entire
proceeding. The right view in our opinion is that it takes nothing from the lawful
object avowed in the same resolution and is rightly inferable from the earlier one.
It is not as if an inadmissible or unlawful object were affirmatively and definitely
avowed.304
Moreover, when the purpose asserted is supported by reference to specific
problems which in the past have been, or in the future may be, the subject of
appropriate legislation, it has been held that a court cannot say that a committee of
302
In re Chapman, 166 U.S. at 699.
303
273 U.S. 135 (1927).
304
Id. at 179-180.
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the Congress exceeds its power when it seeks information in such areas.305 In the
past, the types of legislative activity which have justified the exercise of the power
to investigate have included the primary functions of legislating and appropriating;306
the function of deciding whether or not legislation is appropriate;307 oversight of the
administration of the laws by the executive branch;308 and the essential congressional
function of informing itself in matters of national concern.309 In addition, Congress’s
power to investigate such diverse matters as foreign and domestic subversive
activities,310 labor union corruption,311 and organizations that violate the civil rights
of others312 — have all been upheld by the Supreme Court.313
Despite the Court’s broad interpretation of legislative purpose, Congress’s
authority is not unlimited. Courts have held that a committee lacks legislative
purpose if it appears to be conducting a legislative trial rather than an investigation
to assist in performing its legislative function.314 Furthermore, although “there is no
congressional power to expose for the sake of exposure,”315 “so long as Congress acts
in pursuance of its constitutional power, the Judiciary lacks authority to intervene on
the basis of the motives which spurred the exercise of that power.”316
Pertinency. Two different issues of pertinency arise in regard to a contempt
prosecution.317 First, a witness’s refusal to answer questions or provide subpoenaed
documents will be punished as a contempt only if the questions posed (or documents
requested) by the committee are, in the language of the statute, “pertinent to the
305
Shelton v. United States, 404 F.2d 1292, 1297 (D.C. Cir. 1968), cert denied, 393 U.S.
1024 (1969).
306
Barenblatt v. United States, 360 U.S. 109 (1959).
307
Quinn v. United States, 349 U.S. 155, 161 (1955).
308
McGrain, 273 U.S. at 295.
309
United States v. Rumely, 345 U.S. 4, 43-45 (1953); see also Watkins, 354 U.S. at 200 n.
3.
310
See, e.g., Barrenblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States,
354 U.S. 178 (1957); McPhaul v. United States, 364 U.S. 372 (1960).
311
Hutcheson v. United States, 369 U.S. 599 (1962).
312
Shelton v. United States, 404 F.2d 1292 (D.C. Cir. 1968), cert. denied, 393 U.S. 1024
(1969).
313
For an indication of the likely breadth of Congress’s power to investigate, see supra note
5-19 and accompanying text.
314
See United States v. Icardi, 140 F. Supp. 383 (D.D.C. 1956); United States v. Cross, 170
F. Supp. 303 (D.D.C. 1959).
315
Watkins v. United States, 354 U.S. 178, 200 (1957). However, Chief Justice Warren,
writing for the majority, made it clear that he was not referring to the “power of the
Congress to inquire into and publicize corruption, mal-administration or inefficiency in
agencies of the Government.” Id.
316
Barenblatt, 360 U.S. at 132.
317
Deutch v. United States, 367 U.S. 456, 467-68 (1961).
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question under inquiry.”318 In determining general questions of the pertinency of
inquiries, the courts have required only that the specific inquiries be reasonably
related to the subject matter under investigation.319 Given the breadth of
congressional investigations, the courts have long recognized that pertinency in the
legislative context is broader than in the judicial context, which relies primarily on
the law of evidence’s standard of relevance. For example, the D.C. Circuit has stated
that
A legislative inquiry may be as broad, as searching, and as exhaustive as is
necessary to make effective the constitutional powers of Congress. ... A judicial
inquiry relates to a case, and the evidence to be admissible must be measured by
the narrow limits of the pleadings. A legislative inquiry anticipates all possible
cases which may arise thereunder and the evidence admissible must be
responsive to the scope of the inquiry which generally is very broad.320
The second pertinency issue concerns the Fifth Amendment’s Due Process
Clause. According to the Supreme Court in Deutch v. United States, the pertinency
of a “committee’s inquiry must be brought home to the witness at the time the
questions are put to him.”321 The Court in Watkins stated that
[u]nless the subject matter has been made to appear with undisputable clarity, it
is the duty of the investigative body, upon objection of the witness on grounds
of pertinency, to state for the record the subject under inquiry at that time and the
manner in which the propounded questions are pertinent thereto. To be
meaningful, the explanation must describe what the topic under inquiry is and the
connective reasoning whereby the precise questions asked relate to it.322
In addition, according to commentators, a witness is entitled “to understand the
specific aspect of the committee’s jurisdiction under its authorizing resolution [or
House or Senate rule] to which the question relates.”323 Finally, it appears that the
committee must specifically rule on a pertinency objection and, if the objection is
overruled, inform the witness of that fact before again directing him to answer the
question.
The Court has also observed that a witness might resort to several sources in
determining the subject matter of an investigation. These include, but are likely not
limited to: (a) the House or Senate resolution authorizing the committee inquiry; (b)
the committee’s resolution authorizing the subcommittee investigation; (c) the
introductory statement of the chairman or other committee Members; (d) the nature
318
2 U.S.C. § 192 (2000); see also Barenblatt, 360 U.S. at 123; Watkins, 354 U.S. at 208
319
Sinclair v. United States, 279 U.S. 263, 279 (1929); Ashland Oil, Inc. v. FTC, 409 F.
Supp. 287, 305 (D.D.C. 1976).
320
Townsend v. United States, 95 F.2d 352, 361 (D.C. Cir. 1938), cert. denied, 303 U.S. 664
(1938) (internal citation omitted) (emphasis in original).
321
Deutch, 367 U.S. at 467-68.
322
Watkins, 354 U.S. at 214-15.
323
See James Hamilton, THE POWER TO PROBE: A STUDY OF CONGRESSIONAL
INVESTIGATIONS, 241 (1977) [hereinafter Hamilton].
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of the proceedings; and (e) the chairman’s response to a witness’s objections on the
grounds of lack of pertinency.324
Willfulness. A conviction for statutory criminal contempt cannot be sustained
unless the failure to appear before the committee, to produce documents, or to
respond to questions is a willful, intentional act.325 However, an evil motive does not
have to be established.326 Because of the willfulness requirement, and to satisfy
constitutional due process standards, when a witness objects to a question or
otherwise refuses to answer, the chairman or presiding member should rule on any
objection and, if the objection is overruled, the witness should be clearly directed to
answer.327 It has been observed that “there is no talismanic formula which [a]
committee must use in directing [a] witness to answer,” but he should be clearly
informed “and not left to the risk of guessing upon pain of criminal penalties,
whether the grounds for his objection to answering [are] accepted or rejected,” and
“if they are rejected, he should be given another chance to answer.”328 The procedure
to be followed in responding to a witness’s objections to questions has been
described as follows:
If a witness refuses to answer a question, the committee must ascertain the
grounds relied upon by the witness. It must clearly rule on the witness’s
objection, and if it overrules the witness’s objection and requires the witness to
answer, it must instruct the witness that his continued refusal to answer will
make him liable to prosecution for contempt of Congress. By failing adequately
to apprise the witness that an answer is required notwithstanding his objection
the element of deliberateness necessary for conviction for contempt under 2
U.S.C. § 192 is lacking, and such a conviction cannot stand.329
Other Procedural Requirements. A contempt conviction can be reversed
on other non-constitutional grounds. The cases make clear that committees must
closely follow their own rules and the rules of their parent body in authorizing
324
Watkins, 354 U.S. at 209-14.
325
Quinn v. United States, 349 U.S. 155, 165 (1955); see also United States v. Bryan, 339
U.S. 323 (1950); United States v. Josephson, 165 F.2d 82 (2d Cir. 1948), cert. denied, 333
U.S. 838 (1948); Deutch v. United States, 235 F.2d 853 (D.C. Cir. 1956), rev’d on other
grounds, 367 U.S. 456 (1961).
326
See generally, Allen B. Moreland, Congressional Investigations and Private Persons, 40
SO. CAL. L. REV. 189, 239-42 (1967).
327
See, e.g., Deutch v. United States, 367 U.S. 456 (1961); Watkins v. United States, 354
U.S. 178 (1957); Quinn v. United States, 349 U.S. 155 (1955); Emspak v. United States, 349
U.S. 190 (1955); Bart v. United States, 349 U.S. 219 (1955); Braden v. United States, 272
F.2d 653, 661 (5th Cir. 1959), aff’d, 365 U.S. 961 (1961).
328
Quinn v. United States, 203 F.2d 30, 33 (D.C. Cir. 1952), aff’d, 349 U.S. 155 (1955).
329
See Leading Cases, supra note 297 at 69.
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subpoenas330 and conducting investigations and hearings.331 It appears that a witness
can be convicted of criminal contempt,332 but not of perjury, where a quorum of the
committee was not present.333
Attorney-Client Privilege. In practice, the exercise of committee discretion
whether to accept a claim of attorney-client privilege has turned on a “weighing [of]
the legislative need for disclosure against any possible resulting injury.”334 More
particularly, the process of committee resolution of claims of attorney-client privilege
has traditionally been informed by weighing considerations of legislative need, public
policy, and the statutory duty of congressional committees to engage in continuous
oversight of the application, administration, and execution of laws that fall within
their jurisdiction,335 against any possible injury to the witness. In the particular
circumstances of any situation, a committee may consider and evaluate the strength
of a claimant’s assertion in light of the pertinency of the documents or information
sought to the subject of the investigation, the practical unavailability of the
documents or information from any other source, the possible unavailability of the
privilege to the claimant if it were to be raised in a judicial forum, and the
committee’s assessment of the cooperation of the witness in the matter, among other
considerations. A valid claim of attorney-client privilege, free of any taint of waiver,
exception or other mitigating circumstance, would merit substantial weight. Any
serious doubt, however, as to the validity of the asserted claim would diminish its
compelling character.336 Moreover, the conclusion that recognition of non330
Shelton v. United States, 327 F.2d 601 (D.C. Cir. 1963); see also Liveright v. United
States, 347 F.2d 473 (D.C. Cir. 1965).
331
Yellin v. United States, 374 U.S. 109 (1963); Gojack v. United States, 384 U.S. 702
(1966).
332
United States v. Bryan, 339 U.S. 323 (1950).
333
The Court held in Christoffel v. United States, 338 U.S. 84 (1949), that a quorum of the
committee must be present at the time that the perjurious testimony is given. It is not
sufficient that a quorum is present at the start of the hearing. The difference in regard to the
quorum requirement between the contempt statute (2 U.S.C. § 192) and the perjury statute
(18 U.S.C. § 1621) is the provision in the latter that the statement must have been made
before a “competent tribunal,” and a quorum has been considered necessary for the tribunal
to be competent. The Court in Christoffel recognized the constitutional power of each
House t o determine the rules of its proceedings and pursuant to t h i s power, the Senate has
authorized its committees to adopt rules under which one member of a committee can
constitute a quorum for the receipt of sworn testimony. See Senate Rule XXVI , cl. 7(a)(2).
The House allows committees to adopt rules providing for receipt of testimony by as few
as two members. See House Rule X I , c l. 2(h).
334
Hearings, “International Uranium Cartel”, Subcomm. on Oversight and Investigations,
House Comm. on Interstate and Foreign Commerce, 95th Cong., 1st Sess., Vol. 1, 123
(1977).
335
336
See 2 U.S.C. 190d (1994).
See, e.g., Contempt of Congress Against Franklin L. Haney, H.Rept. 105-792, 105th
Cong., 2d Sess., 11-15 (1998); Proceedings Against John M. Quinn, David Watkins, and
Matthew Moore (Pursuant to Title 2, United States Code, Sections 192 and 194), H.Rept.
104-598, 104th Cong., 2d Sess., 40-54 (1996); Refusal of William H. Kennedy, III, To
(continued...)
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constitutionally based privileges, such as attorney-client privilege, is a matter of
congressional discretion is consistent with both traditional British parliamentary and
the Congress’s historical practice.337
Although there is limited case law with respect to attorney-client privilege
claims before congressional committees,338 appellate court rulings on the privilege
in cases involving other investigative contexts (e.g., grand jury) have raised questions
as to whether executive branch officials may claim attorney-client, work product, or
deliberative process privileges in the face of investigative demands.339 These rulings
may lead to additional arguments in support of the long-standing congressional
practice.
336
(...continued)
Produce Notes Subpoenaed by the Special Committee to Investigate Whitewater
Development Corporation and Related Matters, S.Rept. 104-191, 104th Cong. 1st Sess., 9-19
(1995); Proceedings Against Ralph Bernstein and Joseph Bernstein, H.Rept. 99-462, 99th
Cong. 2d Sess., 13, 14 (1986); Hearings, International Uranium Control, before the
Subcommittee on Oversight and Investigations, House Committee on Interstate and Foreign
Commerce, 95th Cong., 1st Sess., 60, 123 (1977).
337
See, CRS Report 95-464, Investigative Oversight: An Introduction to the Law Practice
and Procedure of Congressional Inquiry, pp. 43-55 (April 7, 1995); see also, Glenn A.
Beard, Congress v. the Attorney-Client Privilege: A “Full and Frank Discussion”, 35 Amer.
CRIM. L. REV. 119 122-127 (1997) (“[C]ongressional witnesses are not legally entitled to
the protection of the attorney-client privilege, and investigating committees therefore have
discretionary authority to respect or overrule such claims as they see fit.”); Thomas Millett,
The Applicability of Evidentiary Privileges for Confidential Communications Before
Congress, 21 JOHN MARSHALL L. REV. 309 (1988).
338
See In the Matter of Provident Life and Accident Co., E.D. Tenn., S.D., CIV-1-90-219,
June 13, 1990 (noting that the court’s earlier ruling on an attorney-client privilege claim was
“not of constitutional dimensions, and is certainly not binding on the Congress of the United
States.”).
339
In re Grand Jury Subpoena Duces Tecum, 112 F. 3d 910 (8th Cir. 1997), cert. denied
sub. nom., Office of the President v. Office of the Independent Counsel, 521 U.S. 1105
(1997) (rejecting claims by the First Lady of attorney-client and work-product privilege with
respect notes taken by White House Counsel Office attorneys); In re Bruce R. Lindsey
(Grand Jury Testimony), 158 F. 3d 1263 (D.C. Cir. 1998), cert. denied, 525 U.S. 996 (1998)
(holding that a White House attorney may not invoke attorney-client privilege in response
to grand jury subpoena seeking information on possible commission of federal crimes); In
re Sealed Case (Espy), 121 F.3d 729 (D.C. Cir. 1997) (deciding that the deliberative process
privilege is a common law agency privilege which can be overcome by a showing of need
by an investigating body); In re: A Witness Before the Special Grand Jury, 288 F.3d 289
(7th Cir. 2002) (holding that the attorney-client privilege is not applicable to
communications between state government counsel and state office holder); But see In re
Grand Jury Investigation, 399 F.3d 527 (2d Cir. 2005) (upholding a claim of attorney-client
privilege with respect to communications between a former chief legal counsel to the
governor of Connecticut who was under grand jury investigation. It is worth noting that the
Second Circuit recognized its apparent conflict with the afore-cited cases, however, the
ruling is arguably distinguishable on its facts. See Kerri R. Blumenauer, Privileged or Not?
How the Current Application of the Government Attorney-Client Privilege Leaves the
Government Feeling Unprivileged, 75 FORDHAM L. REV. 75 (2006)).
CRS-55
The legal basis for Congress’s practice in this area is based upon its inherent
constitutional prerogative to investigate which has been long recognized by the
Supreme Court as extremely broad and encompassing, and which is at its peak when
the subject is fraud, abuse, or maladministration within a government department.340
The attorney-client privilege is, on the other hand, not a constitutionally based
privilege, rather it is a judge-made exception to the normal principle of full disclosure
in the adversary process which is to be narrowly construed and has been confined to
the judicial forum.341
While no court has recognized the inapplicability of the attorney-client privilege
in congressional proceedings in a decision directly addressing the issue,342 an opinion
issued by the Legal Ethics Committee of the District of Columbia Bar in February
1999, clearly acknowledges the longstanding congressional practice.343 The occasion
for the ruling arose as a result of an investigation of a Subcommittee of the House
Commerce Committee into the circumstances surrounding the planned relocation of
the Federal Communications Commission to the Portals office complex.344 During
the course of the inquiry, the Subcommittee sought certain documents from the
Portals developer, Mr. Franklin L. Haney. Mr. Haney’s refusal to comply resulted
in subpoenas for those documents to him and the law firm representing him during
the relocation efforts. Both Mr. Haney and the law firm asserted attorney-client
privilege in their continued refusal to comply. In addition, the law firm sought an
opinion from the D.C. Bar’s Ethics Committee as to its obligations in the face of the
subpoena and a possible contempt citation. The Bar Committee notified the firm that
the question was novel and that no advice could be given until the matter was
considered in a plenary session of the Committee.345 The firm continued its refusal
to comply until the Subcommittee cited it for contempt, at which time the firm
340
McGrain v. Daugherty, 272 U.S. 135, 177 (1926); Watkins v. United States, 354 U.S.
178, 187 (1957); Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 504 n.15
(1975).
341
Westinghouse Electric Corporation v. Republic of the Philippines, 951 F.2d 1414, 1423
(3d Cir. 1991).
342
The Supreme Court has recognized that “only infrequently have witnesses . . . [in
congressional hearings] been afforded the procedural rights normally associated with an
adjudicative proceeding.” Hannah v. Larche, 363 U.S. 420, 425 (1960); see also, United
States v. Fort, 443 F. 2d 670 (D.C. Cir. 1970), cert. denied, 403 U.S. 932 (1971) (rejecting
the contention that the constitutional right to cross-examine witnesses applied to a
congressional investigation); In the Matter of Provident Life and Accident Co., E.D. Tenn.,
S.D., CIV-1-90-219, June 13, 1990 (noting that the court’s earlier ruling on an attorneyclient privilege claim was “not of constitutional dimensions, and is certainly not binding on
the Congress of the United States.”).
343
Opinion No. 288, Compliance With Subpoena from Congressional Committee to Produce
Lawyers’ Files Containing Client Confidences or Secrets, Legal Ethics Committee, District
of Columbia Bar, February 16, 1999. (D.C Ethics Committee Opinion).
344
345
See H. Rep. No. 105-792, 105th Cong., 1st Sess., 1-6, 7-8, 15-16 (1997).
See Meeting on Portal Investigation (Authorization of Subpoenas; Receipt of Subpoenaed
Documents and Consideration of Objections); and Contempt of Congress Proceedings
Against Franklin L. Haney, H. Comm. On Commerce, 105th Cong., 2d Sess., 48-50 (1998).
CRS-56
proposed to turn over the documents if the contempt citation was withdrawn. The
Subcommittee agreed to the proposal.346
Subsequently, on February 16, 1999, the D.C. Bar’s Ethics Committee issued
an opinion vindicating the action taken by the firm. The Ethics Committee,
interpreting D.C. Bar Rule of Professional conduct 1.6(d)(2)(A),347 held that an
attorney faced with a congressional subpoena that would reveal client confidences
or secrets
has a professional responsibility to seek to quash or limit the subpoena on all
available, legitimate grounds to protect confidential documents and client secrets.
If, thereafter, the Congressional subcommittee overrules these objections, orders
production of the documents and threatens to hold the lawyer in contempt absent
compliance with the subpoena, then, in the absence of a judicial order forbidding
the production, the lawyer is permitted, but not required, by the D.C. Rules of
Professional Conduct to produce the subpoenaed documents. A directive of a
Congressional subcommittee accompanied by a threat of fines and imprisonment
pursuant to federal criminal law satisfies the standard of “required by law” as
that phrase is used in D.C. Rule of Professional conduct 1.6(d)(2)(A).
The D.C. Bar opinion urges attorneys to press every appropriate objection to the
subpoena until no further avenues of appeal are available, and even suggests that
clients might be advised to retain other counsel to institute a third-party action to
enjoin compliance,348 but allows the attorney to relent at the earliest point when he
is put in legal jeopardy. The opinion represents the first, and thus far the only, bar
in the nation to directly and definitively address the merits of the issue.
In the end, of course, it is the congressional committee alone that determines
whether to accept a claim of attorney-client privilege.
Work Product Immunity and Other Common Law Testimonial
Privileges. Common law rules of evidence as well as statutory enactments
recognize a testimonial privilege for witnesses in a judicial proceeding so that they
need not reveal confidential communications between doctor and patient, husband
and wife, or clergyman and parishioner.349 Although there is no court case directly on
346
Id. at 101-105.
347
Under Rule 1.6(d)(2)(A) a lawyer may reveal client confidences or secrets only when
expressly permitted by the D.C. Bar rules or when “required by law or court order.”
348
A direct suit to enjoin a committee from enforcing a subpoena has been foreclosed by the
Supreme Court’s decision in Eastland v. United States Servicemen’s Fund, 421 U.S. 491,
501 (1975), but that ruling does not appear to foreclose an action against a “third party,”
such as the client’s attorney, to test the validity of the subpoena or the power of a committee
to refuse to recognize the privilege. See, e.g., United States v. AT&T, 567 F. 2d 121
(D.C.Cir. 1977) (entertaining an action by the Justice Department to enjoin AT&T from
complying with a subpoena to provide telephone records that might compromise national
security matters).
349
See generally, 8 Wigmore, EVIDENCE § 2285 (McNaughton ed. 1961); see also FED. R.
EVID. 501. For an analysis of the attorney client privilege, See infra notes 331-344 and
(continued...)
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point, it appears that, like the privilege between attorney and client, congressional
committees are not legally required to allow a witness to decline to testify on the
basis of other similar testimonial privileges.350 It should be noted, however, that the
courts have denied claims by the White House Counsel’s office of attorney work
product immunity in the face of grand jury subpoenas that have been grounded on the
assertion that the materials sought were prepared in anticipation of possible
congressional hearings.351 In addition, court decisions indicate that various rules of
procedure generally applicable to judicial proceedings, such as the right to
cross-examine and call other witnesses, need not be accorded to a witness in a
congressional hearing.352 The basis for these determinations is rooted in Congress’s
Article I section 5 rulemaking powers,353 under which each House is the exclusive
determiner of the rules of its own proceedings. This rulemaking authority, as well
as general separation of powers considerations, suggest that Congress and its
committees are not obliged to abide by rules established by the courts to govern their
own proceedings.354
Though congressional committees may not be legally obligated to recognize the
privilege for confidential communications, they may do so at their discretion.
Historical precedent suggests that committees often have recognized such
privileges.355 The decision as to whether or not to allow such claims of privilege
turns on a “weighing [of] the legislative need for disclosure against any possible
resulting injury.”356
349
(...continued)
accompanying text.
350
Compare Attorney-Client Privilege: Memoranda Opinions of the American Law Division,
Library of Congress, Comm. Print of the Subcommittee on Oversight and Investigations of
the House Committee on Energy and Commerce, 98th Cong., 1st Sess., 926 (1983)
[hereinafter Attorney-Client Privilege Comm. Print], with Id. at 41, 44 et. seq; see also
generally, Moreland, supra note 5 at 265-67.
351
See e.g., In re Grand Jury Subpoena Duces Tecum, 112 F.3d 907, 924-25 (8th Cir. 1997);
In re Grand Jury Proceedings, 5 F.Supp.2d 21, 39 (D.D.C. 1998).
352
United States v. Fort, 443 F.2d 670 (D.C. Cir. 1970), cert. denied, 403 U.S. 932 (1971),
(citing Hannah v. Larche, 363 U.S. 420 (1960)).
353
U.S. CONST. Art. 1, § 5, cl. 2
354
See generally, Telford Taylor, GRAND INQUEST: THE STORY OF CONGRESSIONAL
INVESTIGATIONS 227-28 (1974).
355
See Hamilton, supra note 320, at 244; see also S.Rept. No. 2, 84th Cong., 1st Sess.,
(1955). Hamilton notes that John Dean, the former counsel to the President, testified before
the Senate Watergate Committee after Nixon had “waived any attorney-client privilege he
might have had because of their relationship.” Id.
356
Attorney-Client Privilege Comm. Print, supra note 346, at 27 (citing Hearings on an
International Uranium Cartel before the Subcommittee on Oversight and Investigations,
House Committee on Interstate and Foreign Commerce, 95th Cong., 1st Sess., 60, 123
(1977)).
CRS-58
Constitutional Limitations
The Supreme Court has observed that “Congress, in common with all branches
of the Government, must exercise its powers subject to the limitations placed by the
Constitution on governmental action, more particularly in the context of this case, the
relevant limitations of the Bill of Rights.”357 There are constitutional limits not only
on Congress’s legislative powers, but also on its investigative powers.
First Amendment. Although the First Amendment, by its terms, is expressly
applicable only to legislation that abridges freedom of speech, press, or assembly, the
Court has held that the amendment also restricts Congress in conducting
investigations.358 In the leading case involving the application of First Amendment
rights in a congressional investigation, Barenblatt v. United States,359 the Court held
that “where First Amendment rights are asserted to bar government interrogation
resolution of the issue always involves a balancing by the courts of the competing
private and public interests at stake in the particular circumstances shown.” Thus,
unlike the Fifth Amendment privilege against self-incrimination, the First
Amendment does not give a witness an absolute right to refuse to respond to
congressional demands for information.360
The Court has held that in balancing the personal interest in privacy against the
congressional need for information, “the critical element is the existence of, and the
weight to be ascribed to, the interest of the Congress in demanding disclosure from
an unwilling witness.” 361 To protect the rights of witnesses, in cases involving the
First Amendment, the courts have emphasized the requirements discussed above
concerning authorization for the investigation, delegation of power to investigate to
the committee involved, and the existence of a legislative purpose.362
357
Barenblatt v. United States, 360 U.S. 109, 112 (1959). Not all of the provisions of the
Bill of Rights are applicable to congressional hearings. For example, the sixth amendment
right of a criminal defendant to cross-examine witnesses and to call witnesses in his behalf
has been held not applicable to a congressional hearing. United States v. Fort, 443 F.2d 670
(D.C. Cir. 1970), cert. denied, 403 U.S. 932 (1971).
358
Watkins v. United States, 354 U.S. 178, 197 (1957).
359
360 U.S. 109, 126 (1959).
360
Id.
361
Watkins, 354 U.S. at 198. A balancing test was also used in Branzburg v. Hayes, which
involved the issue of the claimed privilege of newsmen not t o respond t o demands of a
grand jury for information. See 408 U.S. 665 (1972). In its 5-4 decision, the Court
concluded that the need of the grand jury for the information outweighed First Amendment
considerations, but there are indications in the opinion that “the infringement of protected
First Amendment rights must be no broader than necessary to achieve a permissible
governmental purpose,” and that “a State’s interest must be ‘compelling’ or ‘paramount’ to
justify even an indirect burden on First Amendment rights.” Id. at 699-700; see also Gibson
v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963) (applying the
compelling interest test in a legislative investigation).
362
See, e.g., Barenblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States, 354
U.S. 178 (1957); United States v. Rumely, 345 U.S. 41 (1953); see also 4 Deschler’s
(continued...)
CRS-59
While the Court has recognized the application of the First Amendment to
congressional investigations, and although the amendment has frequently been
asserted by witnesses as grounds for not complying with congressional demands f or
information, the Court has never relied on the First Amendment as grounds for
reversing a criminal contempt of Congress conviction.363 However, the Court has
narrowly construed the scope of a committee’s authority so as to avoid reaching a
First Amendment issue.364 In addition, the Court has ruled in favor of a witness who
invoked his First Amendment rights in response to questioning by a state legislative
committee.365
In a 1976 investigation of the unauthorized publication in the press of the report
of the House Select Committee on Intelligence, the Committee on Standards of
Official Conduct subpoenaed four news media representatives, including Daniel
Schorr.366 The Standards of Official Conduct Committee concluded that Mr. Schorr
had obtained a copy of the Select Committee’s report and had made it available for
publication. Although the ethics committee found that “Mr Schorr’s role in
publishing the report was a defiant act in disregard of the expressed will of the House
of Representatives to preclude publication of highly classified national security
information,” it declined to cite him for contempt for his refusal to disclose his
362
(...continued)
Precedents, supra note 87, ch. 15, § 10, n. 15 and accompanying text.
363
Leading Cases, supra note 297, at 42; Hamilton, supra note 320, at 234. Although it was
not in the criminal contempt context, one court of appeals has upheld a witness’s First
Amendment claim. In Stamler v. Willis, the Seventh Circuit Court of Appeals ordered to
trial a witness’s suit for declaratory relief against the House Un-American Activities
Committee in which it was alleged that the committee’s authorizing resolution had a
“chilling effect” on plaintiff’s First Amendment rights. See 415 F.2d 1365 (7th Cir. 1969),
cert. denied, 399 U.S. 929 (1970). In other cases for declaratory and injunctive relief
brought against committees on First Amendment grounds, relief has been denied although
the courts indicated that relief could be granted if the circumstances were more compelling.
See, e.g., Sanders v. McClellan, 463 F.2d 894 (D.C. Cir. 1972); Davis v. Chord, 442 F. 2d
1207 (D.C. Cir. 1970); Ansara v. Eastland, 442 F.2d 751 (D.C. Cir. 1971). However, in
Eastland v. United States Servicemen’s Fund, the Supreme Court held that the
Constitution’s Speech or Debate Clause (Art. I, sec. 6, cl. 1) generally bars suits challenging
the validity of congressional subpoenas on First Amendment or other grounds. Thus, a
witness generally cannot raise his constitutional defenses until a subsequent criminal
prosecution for contempt unless, in the case of a Senate committee, the statutory civil
contempt procedure is employed. 421 U.S. 491 (1975); see also United States v. House of
Representatives, 556 F. Supp. 150 (D.D.C. 1983).
364
United States v. Rumely, 345 U.S. 41 (1953).
365
Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963). In the
majority opinion, Justice Goldberg observed that “an essential prerequisite to the validity
of an investigation which intrudes into the area of constitutionally protected rights of
speech, press, association and petition [is] that the State convincingly show a substantial
relation [or nexus] between the information sought and a subject of overriding and
compelling state interest. Id. a t 546.
366
H.Rept. 94-1754, 94th Cong. 2d Sess., 6 (1976).
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source.367 The desire to avoid a clash over First Amendment rights apparently was
a major factor in the committee’s decision on the contempt matter.368
In another First Amendment dispute, the Special Subcommittee on
Investigations of the House Committee on Interstate and Foreign Commerce, in the
course of its probe of allegations that deceptive editing practices were employed in
the production of the television news documentary program The Selling of the
Pentagon, subpoenaed Frank Stanton the president of CBS, directing him to deliver
to the subcommittee the “outtakes” relating to the program.369 When, on First
Amendment grounds, Stanton declined to provide the subpoenaed materials, the
subcommittee unanimously voted a contempt citation, and the full committee by a
vote of 25-13 recommended to the House that Stanton be held in contempt.370 After
extensive debate, the House failed to adopt the committee report, voting instead to
recommit the matter to the committee.371 During the debate, several Members
expressed concern that approval of the contempt citation would have a “chilling
effect” on the press and would unconstitutionally involve the government in the
regulation of the press. 372
Fourth Amendment. Several opinions of the Supreme Court indicate that the
Fourth Amendment’s prohibition against unreasonable searches and seizures is
applicable to congressional committees; however, there has not been an opinion
directly addressing the issue.373 It appears that there must be a legitimate legislative
or oversight-related basis for the issuance of a congressional subpoena.374 The Fourth
Amendment protects a congressional witness against a subpoena which is
367
Id. at 42-43.
368
Id. at 47-48 (additional views of Representatives Spence, Teague, Hutchinson, and Flynt).
369
The outtakes were portions of the CBS film clips that were not actually broadcast. The
subcommittee wanted to compare the outtakes with the tape of the broadcast to determine
if improper editing techniques had been used.
370
H.Rept. 92-349, 92d Cong., 1st Sess. (1971). The legal argument of CBS was based in
part on the claim that Congress could not constitutionally legislate on the subject of editing
techniques and, therefore, the subcommittee lacked a valid legislative purpose for the
investigation. Id. at 9.
371
372
See 117 CONG. REC. 23922-926, 24603-59, 24720-53 (1971).
Id. at 24731-732.
373
Watkins v. United States, 354 U.S. 178, 188 (1957); see also McPhaul v. United States,
364 U.S. 372 (1960).
374
A congressional subpoena may not be used in a mere “fishing expedition.” See Hearst
v. Black, 87 F.2d 68, 71 (D .C. Cir. 1936) (quoting, Federal Trade Commission v. American
Tobacco Co., 264 U.S. 298, 306 (1924) (stating that “[i]t is contrary to the first principles
of justice to allow a search through all the records, relevant or irrelevant, in the hope that
something will turn up.”))); see also United States v. Groves, 188 F. Supp. 314 (W.D. Pa.
1937) (dicta); But see Eastland v. United States Servicemen's Fund, 421 U.S. 491, 509
(1975), (recognizing that an investigation may lead “up some ‘blind alleys’ and into
nonproductive enterprises. To be a valid legislative inquiry there need be no predictable end
result.”).
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unreasonably broad or burdensome.375 The Court has outlined the standard to be used
in judging the reasonableness of a congressional subpoena:
Petitioner contends that the subpoena was so broad as to constitute an
unreasonable search and seizure in violation of the Fourth Amendment ....
‘Adequacy or excess in the breath of the subpoena are matters variable in relation
to the nature, purposes, and scope of the inquiry’ .... The subcommittee’ s inquiry
here was a relative1y broad one ... and the permissible scope of materials that
could reasonably be sought was necessarily equally broad. It was not reasonable
to suppose that the subcommittee knew precisely what books and records were
kept by the Civil Rights Congress, and therefore the subpoena could only ‘
specify ... with reasonable particularity, the subjects to which the documents ...
relate .... ‘The call of the subpoena for ‘all records, correspondence and
memoranda’ of the Civil Rights Congress relating to the specified subject
describes them 'with all of the particularity the nature of the inquiry and the
[subcommittee’s] situation would permit .... ‘The description contained in the
subpoena was sufficient to enable [petitioner] to know what particular documents
were required and to select them adequately.376
If a witness has a legal objection to a subpoena duces tecum or is for some
reason unable to comply with a demand for documents, he must give the grounds for
his noncompliance upon the return of the subpoena. As the D.C. Circuit stated:
If [the witness] felt he could refuse compliance because he considered the
subpoena so broad as to constitute an unreasonable search and seizure within the
prohibition of the fourth amendment, then to avoid contempt for complete
noncompliance he was under [an] obligation to inform the subcommittee of his
position. The subcommittee would then have had the choice of adhering to the
subpoena as formulated or of meeting the objection in light of any pertinent
representations made by [the witness].377
Similarly, if a subpoenaed party is in doubt as to what records are required by a
subpoena or believes that it calls for documents not related to the investigation, he
must inform the committee. Where a witness is unable to produce documents he will
not be held in contempt “unless he is responsible for their unavailability ... or is
impeding justice by not explaining what happened to them.”378
The application of the exclusionary rule to congressional committee
investigation is in some doubt and appears to depend on the precise facts of the
situation. It seems that documents which were unlawfully seized at the direction of
a congressional investigating committee may not be admitted into evidence in a
subsequent unrelated criminal prosecution because of the command of the
375
McPhaul v. United States, 364 U.S. 372 (1960); see also Shelton v. United States, 404
F.2d 1292 (D.C. Cir. 1968), cert. denied, 393 U.S. 1024 (1969).
376
McPhaul, 364 U.S. at 832.
377
Shelton, 404 F.2d at 1299-1300; see also Leading Cases, supra note 297, at 49.
378
McPhaul, 364 U.S. at 382.
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exclusionary rule.379 In the absence of a Supreme Court ruling, it remains unclear
whether the exclusionary rule bars the admission into evidence in a contempt
prosecution of a congressional subpoena which was issued on the basis of documents
obtained by the committee following their unlawful seizure by another investigating
body (such as a state prosecutor).380
Fifth Amendment Privilege Against Self-Incrimination. Although it has
never been necessary for the Supreme Court to decide the issue, in dicta it has been
indicated that the privilege against self-incrimination afforded by the Fifth
Amendment is available to a witness in a congressional investigation.381 The privilege
is personal in nature,382 and may not be invoked on behalf of a corporation,383 small
379
Nelson v. United States, 208 F.2d 505 (D.C. Cir.), cert. denied, 346 U.S. 827 (1953).
380
In United States v. McSurely, 473 F.2d 1178, 1194 (D.C. Cir. 1972), the court of appeals
reversed contempt convictions where the subcommittee subpoenas were based on
information “derived by the subcommittee through a previous unconstitutional search and
seizure by [state] officials and the subcommittee’s own investigator.” The decision of the
court of appeals in the contempt case was rendered in December, 1972. In a civil case
brought by the criminal defendants, Alan and Margaret McSurely, against Senator
McClellan and the subcommittee staff for alleged violations of their constitutional rights by
the transportation and use of the seized documents, the federal district court in June, 1973,
denied the motion of the defendants for summary judgment. While the appeal from the
decision of the district court in the civil case was pending before the court of appeals, the
Supreme Court held, in Calandra v. United States, 414 U.S. 338 (1974), that a grand jury
is not precluded by the Fourth Amendment’s exclusionary rule from questioning a witness
on the basis of evidence that had been illegally seized. A divided court of appeals
subsequently held in McSurely v. McClellan, 521 F.2d 1024, 1047 (D.C. Cir. 1975), that
under Calandra “a congressional committee has the right in its investigatory capacity to use
the product of a past unlawful search and seizure.”
The decision of the three-judge panel in the civil case was vacated and on rehearing
by the full District of Columbia Circuit, five judges were of the view that Calandra was
applicable to the legislative sphere and another five judges found it unnecessary to decide
whether Calandra applies to committees but indicated that, even if it does not apply to the
legislative branch, the exclusionary rule may restrict a committee’s use of unlawfully seized
documents if it does not make mere “derivative use” of them but commits an independent
fourth amendment violation in obtaining them. McSurely v. McClellan, 553 F.2d 1277,
1293-94, 1317-25 (D.C. Cir. 1976) (en banc). The Supreme Court granted certiorari in the
case, 434 U.S. 888 (1977), but subsequently dismissed certiorari as improvidently granted,
with no explanation for this disposition of the case. See McAdams v. McSurely, 438 U.S.
189 (1978). Jury verdicts were eventually returned against the Senate defendants, but were
reversed in part on appeal. See 753 F.2d 88 (D.C. Cir. 1985), cert. denied, 54 U.S.L.W. 3372
(Dee. 3, 1985).
381
Watkins v. United States, 354 U.S. 178 (1957); Quinn v. United States, 349 U.S. 155
(1955).
382
See McPhaul v. United States, 364 U.S. 372 (1960); see also McCormick, EVIDENCE §
120 (Cleary ed. 1984) [hereinafter McCormick].
383
Hale v . Henkel, 201 U.S. 43 (1906).
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partnership,384 labor union,385 or other “artificial” organizations.386 The privilege
protects a witness against being compelled to testify but generally not against a
subpoena for existing documentary evidence.387 However, where compliance with
a subpoena duces tecum would constitute implicit testimonial authentication of the
documents produced, the privilege may apply.388
There is no required verbal formula for invoking the privilege, nor does there
appear to be necessary a warning by the committee.389 A committee should recognize
any reasonable indication, such as "the fifth amendment," that the witness is asserting
his privilege.390 Where a committee is uncertain whether the witness is in fact
invoking the privilege against self-incrimination or is claiming some other basis for
declining to answer, the committee should direct the witness to specify his privilege
or objection.391
The committee can review the assertion of the privilege by a witness to
determine its validity, but the witness is not required to articulate the precise hazard
that he fears. In regard to the assertion of the privilege in judicial proceedings, the
Supreme Court has advised:
To sustain the privilege, it need only be evident, from the implications of the
question, in the setting in which it is asked, that a responsive answer to the
question or an explanation of why it cannot be answered might be dangerous
because injurious disclosure could result .... To reject a claim, it should be
‘perfectly clear, from a careful consideration of all the circumstances of the case,
that the witness is mistaken, and that the answers cannot possibly have a
tendency’ to incriminate.392
The basis for asserting the privilege was elaborated upon in a lower court decision:
384
Bellis v. United States, 417 U.S. 85 (1974).
385
See United States v. White, 322 U.S. 694 (1944).
386
Bellis, 417 U.S. at 90; see also Rogers v. United States, 340 U.S. 367 (1951) (Communist
Party).
387
Fisher v. United States, 425 U.S. 391, 409 (1976); Andresen v. Maryland, 427 U.S. 463
(1976). The cases concerned business records and there may be some protection available
in the case of a subpoena for personal papers. See McCormick, supra note378 at §§ 126,
127.
388
United States v. Coe, 465 U.S. 605 (1984); Fisher v. United States, 425 U.S. 391 (1976).
see also Curcio v. United States, 354 U.S. 118 (1957); McCormick, supra note 378 at § 126.
389
Although there is no case law on point, it seems unlikely that Miranda warnings are
required. That requirement flows from judicial concern as to the validity of confessions
evoked in an environment of a police station, isolated from public scrutiny, with the possible
threat of physical and prosecutorial jeopardy; an environment clearly distinguishable from
a congressional context. See Miranda v. Arizona, 384 U.S. 436 (1966).
390
Quinn v. Unlted States, 349 U.S. 155 (1955).
391
Emspak v. United States, 349 U.S. 190 (1955); see also Leading Cases, supra note 297
at 63.
392
Hoffman v. United States, 341 U.S. 479, 486-87 (1951).
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The privilege may only be asserted when there is reasonable apprehension on the
part of the witness that his answer would furnish some evidence upon which he
could be convicted of a criminal offense ... or which would reveal sources from
which evidence could be obtained that would lead to such conviction or to
prosecution therefore ... .Once it has become apparent that the answers to a
question would expose a witness to the danger of conviction or prosecution,
wider latitude is permitted the witness in refusing to answer other questions.393
The privilege against self-incrimination may be waived by declining to assert
it, specifically disclaiming it, or testifying on the same matters as to which the
privilege is later asserted. However, because of the importance of the privilege, a
court will not construe an ambiguous statement of a witness before a committee as
a waiver.394
Where a witness asserts the privilege, the full House or the committee
conducting the investigation may seek a court order which (a) directs the witness to
testify and (b) grants him immunity against the use of his testimony, or other
evidence derived from his testimony, in a subsequent criminal prosecution.395 The
immunity that is granted is “use” immunity, not “transactional” immunity. Neither
the immunized testimony that the witness gives, nor evidence derived therefrom, may
be used against him in a subsequent criminal prosecution, except one for perjury or
contempt relating to his testimony. However, he may be convicted of the crime (the
“transaction”) on the basis of other evidence.396
The application for the judicial immunity order must be approved by a majority
of the House or Senate or by a two-thirds vote of the full committee seeking the
order.397 The Attorney General must be notified at least ten days prior to the request
for the order, and he can request a delay of twenty days in issuing the order.398
393
United States v. Jaffee, 98 F. Supp. 191, 193-94 (D.D.C. 1951); see also Simpson v.
United States, 241 F.2d 222 (9th Cir. 1957) (privilege inapplicable to questions seeking
basic identifying information, such as the witness’s name and address).
394
Emspak v. United States, 349 U.S. 190 (1955); see also Johnson v. Zerbst, 304 U.S. 458,
464 (1938).
395
18 U.S.C. §§ 6002, 6005 (2000).
396
The constitutionality of granting a witness only use immunity rather than transactional
immunity, was upheld in Kastigar v. United States, 406 U.S. 441 (1972). In United States
v. Romano, 583 F.2d 1 (1st Cir. 1978), the defendant appealed from his conviction of several
offenses on the ground, inter alia, that the prosecution’s evidence had been derived, in part,
from immunized testimony that he had given before a Senate subcommittee. Although the
conviction was affirmed, the case illustrates the difficulty that the prosecutor may have in
establishing that its evidence was not “tainted,” but rather was derived from independent
sources, especially in a case where there was some cooperation in the investigation between
a committee and the Justice Department prior to the grant of immunity to testify before the
committee. See Kastigar, 406 U.S. at 461-621.
397
398
18 U.S.C. § 6005(a) (2000).
However, the Justice Department may waive the notice requirement. Application of the
Senate Permeant Subcommittee on Investigations, 655 F.2d 1232, 1236 (D.C. Cir. 1980),
(continued...)
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Although the order to testify may be issued before the witness’s appearance,399 it does
not become legally effective until the witness has been asked the question, invoked
his privilege, and been presented with the court order.400 The role of the court in
issuing the order has been held to be ministerial and, thus, if the procedural
requirements under the immunity statute have been met, the court may not refuse to
issue the order or impose conditions on the grant of immunity.401
Fifth Amendment Due Process Rights. The due process clause of the
Fifth Amendment requires that “the pertinency of the interrogation to the topic under
the ... committee’s inquiry must be brought home to the witness at the time the
questions are put to him.”402 “Unless the subject matter has been made to appear
with undisputable clarity, it is the duty of the investigative body, upon objection of
the witness on grounds of pertinency, to state for the record the subject under inquiry
at that time and the manner in which the propounded questions are pertinent
thereto.”403 Additionally, to satisfy both the requirement of due process as well as the
statutory requirement that a refusal to answer be “willful,” a witness should be
informed of the committee’s ruling on any objections he raises or privileges which
he asserts.404
Recent Developments
An investigation into the resignations of nine United States Attorneys by the
House Judiciary Committee and its Subcommittee on Commercial and
Administrative Law (“the Committee”) has resulted in the first legal confrontation
over Congress’s contempt authority since the early 1980s and the first civil lawsuit
filed by a House of Congress in an attempt to enforce its prerogatives.
After an extensive investigation, which involved numerous witness interviews
and several congressional hearings, the Committee ultimately sought information
relating to the resignations directly from the White House.405 After several attempts
398
(...continued)
cert. denied, 454 U.S. 1084 (1981).
399
400
Application of the Senate Permeant Subcommittee on Investigations, 655 F.2d at 1257
See In re McElreath, 248 F.2d 612 (D.C. Cir. 1957) (en banc).
401
Application of the U.S. Senate Select Committee on Presidential Campaign Activities ,
361 F. Supp. 1270 (D.D.C. 1973). In dicta, however, the court referred to the legislative
history of the statutory procedure, which suggests that although a court lacks power to
review the advisability of granting immunity, a court may consider the jurisdiction of
Congress and the committee over the subject area and the relevance of the information that
is sought to the committee’s inquiry. See id. at 1278-79.
402
Deutch v. United States, 367 U.S. 456, 467-68 (1961). As the court explained in that
case, there is a separate statutory requirement of pertinency.
403
Watkins v. United States, 354 U.S. 178, 214-15 (1957).
404
Deutch v. United States, 367 U.S. 456, 467-68 (1961).
405
See generally, H.Rept. 110-423 (2007), available at, [http://judiciary.house.gov/Media/
(continued...)
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to obtain the information sought informally, on June 13, 2007, the Committee issued
and served subpoenas on Ms. Harriet Miers, the former White House Counsel and
Mr. Joshua Bolten, the White House Chief of Staff and custodian of White House
records.406 Ms. Miers’s subpoena was for both documents and testimony about her
role, if any, in the resignations; while Mr. Bolten’s subpoena was only for White
House records and documents related to the resignations.
In response to the Committee’s action, the White House, via its Counsel Fred
F. Fielding, notified the Committee that it did not intend to comply with the
subpoena to Mr. Bolten on the grounds of executive privilege. As a result, the White
House has not produced any documents in response to Mr. Bolten’s subpoena and
has also not yet provided a privilege log or any information describing the contents
of the documents being withheld.
With respect to the subpoena to Ms. Miers, Mr. Fielding first sent a letter to Ms.
Miers’s private attorney containing notice of the President’s assertion of executive
privilege over information related to this investigation, and suggested that Ms. Miers
refrain from producing any documents pursuant to her subpoena.407 Several days
later Mr. Fielding sent a second letter to Ms Miers’s attorney that indicated that she
was “not to provide ... testimony” pursuant to the subpoena, on the grounds that any
such testimony would also be covered by the President’s assertion of executive
privilege.408 Subsequently, Ms. Miers’s attorney notified the Committee that, as a
result of the President’s claim of executive privilege, Ms. Miers would not appear at
the scheduled hearing.409
On July 25, 2007, the Committee voted to hold Ms. Miers and Mr. Bolten in
contempt of Congress for failure to comply with the duly issued subpoenas.410 The
full House of Representatives voted to hold Ms. Miers and Mr. Bolten in criminal
contempt of Congress on February 14, 2008, for their failure to comply with the
Committee’s subpoenas.411 In addition to invoking the criminal contempt statutes,
the resolutions adopted by the House of Representatives expressly authorized the
filing of a civil lawsuit in the event that the Department of Justice would not pursue
the criminal contempt actions.412 On February 28, 2008, pursuant to 2 U.S.C. § 194,
the Speaker of the House certified the report to the U.S. Attorney for the District of
405
(...continued)
PDFS/ContemptReport071105.pdf]; see also H. Jud. Comm. Mot. Summ. J. at 11 (copy on
file with authors).
406
H. Jud. Comm. Mot. Summ. J. at 12.
407
See Id.
408
Id.
409
Id.
410
See H.Rept. 110-423, 60 (2007).
411
See H.Res. 979, 980, 982, 110th Cong. (2008),
412
See H.Res. 982, 110th Cong. (2008).
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Columbia for presentation to the grand jury.413 The next day, the Attorney General
sent a letter to the Speaker, stating that the Department of Justice “will not bring the
congressional contempt citations before a grand jury or take any other action to
prosecute Mr. Bolten or Ms. Miers.”414 On March 10, 2008, pursuant to the
resolution adopted by the House of Representatives, a civil suit was filed in the
United States District Court for the District of Columbia “seek[ing] [a] declaratory
judgment[]” and other “appropriate relief, including injunctive relief” to enforce the
Committee’s subpoenas.415
Pursuant to the Federal Rules of Civil Procedure, on April 10, 2008, the
Committee requested partial summary judgment on the grounds that there are no
genuine issues regarding any material facts and, therefore, the Committee argued that
it is entitled to judgment as a matter of law.416 The Department of Justice’s
opposition and any cross-motions are due no later than May 9, 2008, and a hearing
on the Committee’s motion is currently scheduled for June 23, 2008.
413
H. Jud. Comm. Mot. Summ. J. at 13.
414
Id. at 13-14.
415
Id.
416
See FED. R. CIV. P. 56. constitute a contempt, in
recent times the contempt power has most often been employed in response to non-compliance
with a duly issued congressional subpoena—whether in the form of a refusal to appear before a
committee for purposes of providing testimony, or a refusal to produce requested documents.
Congress has three formal methods by which it can combat non-compliance with a duly issued
subpoena. Each of these methods invokes the authority of a separate branch of government. First,
the long dormant inherent contempt power permits Congress to rely on its own constitutional
authority to detain and imprison a contemnor until the individual complies with congressional
demands. Second, the criminal contempt statute permits Congress to certify a contempt citation to
the executive branch for the criminal prosecution of the contemnor. Finally, Congress may rely on
the judicial branch to enforce a congressional subpoena. Under this procedure, Congress may
seek a civil judgment from a federal court declaring that the individual in question is legally
obligated to comply with the congressional subpoena.
A number of obstacles face Congress in any attempt to enforce a subpoena issued against an
executive branch official. Although the courts have reaffirmed Congress’s constitutional authority
to issue and enforce subpoenas, efforts to punish an executive branch official for non-compliance
with a subpoena through criminal contempt will likely prove unavailing in many, if not most,
circumstances. Where the official refuses to disclose information pursuant to the President’s
decision that such information is protected under executive privilege, past practice suggests that
the Department of Justice (DOJ) will not pursue a prosecution for criminal contempt. In addition,
although it appears that Congress may be able to enforce its own subpoenas through a declaratory
civil action, relying on this mechanism to enforce a subpoena directed at an executive official
may prove an inadequate means of protecting congressional prerogatives due to the time required
to achieve a final, enforceable ruling in the case. Although subject to practical limitations,
Congress retains the ability to exercise its own constitutionally based authorities to enforce a
subpoena through inherent contempt.
This report examines the source of the contempt power, reviews the historical development of the
early case law, outlines the statutory and common law basis for Congress’s contempt power, and
analyzes the procedures associated with inherent contempt, criminal contempt, and the civil
enforcement of subpoenas. In addition, the report discusses both non-constitutional and
constitutionally based limitations on the power. Finally, the report includes a discussion of the
significance of the House Judiciary Committee dispute with the White House over the dismissal
of several U.S. Attorneys that resulted in votes for criminal contempt of Congress and the United
States District Court opinion in Committee on the Judiciary v. Miers.
Congressional Research Service
Congress’s Contempt Power and the Enforcement of Congressional Subpoenas
Contents
Introduction...................................................................................................................................... 1
Congress’s Power to Investigate ...................................................................................................... 2
Early History of Congressional Contempt....................................................................................... 4
Inherent Contempt ......................................................................................................................... 11
Inherent Contempt Proceedings By Committees of Congress ................................................ 13
Statutory Criminal Contempt......................................................................................................... 18
Civil Enforcement of Subpoenas ................................................................................................... 23
Civil Enforcement in the Senate.............................................................................................. 23
Civil Enforcement in the House of Representatives................................................................ 26
Special Investigatory Committees..................................................................................... 30
Committee Intervention in Subpoena Related Litigation.................................................. 32
Implementation of a Contempt Resolution or a Civil Enforcement Action Against an
Executive Branch Official .......................................................................................................... 34
Committee on the Judiciary v. Miers ....................................................................................... 40
Practical Limitations of Congressional Reliance on Criminal Contempt................................ 44
Non-Constitutional Limitations ..................................................................................................... 46
Authorization and Jurisdiction................................................................................................. 46
Legislative Purpose ................................................................................................................. 47
Pertinency................................................................................................................................ 50
Willfulness............................................................................................................................... 51
Other Procedural Requirements............................................................................................... 51
Attorney-Client Privilege ........................................................................................................ 52
Work Product Immunity and Other Common Law Testimonial Privileges............................. 55
Constitutional Limitations ............................................................................................................. 56
First Amendment ..................................................................................................................... 56
Fourth Amendment.................................................................................................................. 58
Fifth Amendment Privilege Against Self-Incrimination.......................................................... 59
Fifth Amendment Due Process Rights..................................................................................... 62
Tables
Table A-1. Floor Votes on Contempt Resolutions in the House of Representatives, 1980Present ........................................................................................................................................ 63
Table A-2. Other Committee Actions on Contempt Resolutions in the
House of Representatives, 1980-Present .................................................................................... 65
Table A-3. Floor Votes on Civil Enforcement Resolutions in the Senate, 1980-Present ............... 70
Table A-4. Other Committee Actions on Contempt Resolutions in the Senate,
1980-Present ............................................................................................................................... 72
Congressional Research Service
Congress’s Contempt Power and the Enforcement of Congressional Subpoenas
Appendixes
Appendix. Congressional Contempt Resolutions, 1980-Present ................................................... 63
Contacts
Author Contact Information........................................................................................................... 74
Acknowledgments ......................................................................................................................... 74
Congressional Research Service
Congress’s Contempt Power and the Enforcement of Congressional Subpoenas
Introduction
Congress’s contempt power is the means by which Congress responds to certain acts that in its
view obstruct the legislative process. Contempt may be used either to coerce compliance, punish
the contemnor, and/or to remove the obstruction.1 Although any action that directly obstructs the
effort of Congress to exercise its constitutional powers may arguably constitute a contempt,2 in
recent decades the contempt power has most often been employed in response to the refusal of a
witness to comply with a congressional subpoena—whether in the form of a refusal to provide
testimony, or a refusal to produce requested documents.3
Congress has three formal methods by which it can combat non-compliance with a duly issued
subpoena.4 Each of these methods invokes the authority of a separate branch of government.
First, the long dormant inherent contempt power permits Congress to rely on its own
constitutional authority to detain and imprison a contemnor until the individual complies with
congressional demands.5 Because the contemnor is generally released once the terms of the
subpoena are met, inherent contempt serves the purposes of encouraging compliance with a
congressional directive. Second, the criminal contempt statute6 permits Congress to certify a
contempt citation to the executive branch for the criminal prosecution of the contemnor.7
Criminal contempt serves as punishment for non-compliance with a congressional subpoena, but
does not necessarily encourage subsequent acquiescence. Once convicted, the contemnor is not
excused from criminal liability if he later chooses to comply with the subpoena. Finally, Congress
may rely on the judicial branch to enforce a congressional subpoena.8 Under this procedure,
Congress may seek a civil judgment from a federal court declaring that the individual in question
is legally obligated to comply with the congressional subpoena. If the court finds that the party is
legally obligated to comply, continued non-compliance may result in the party being held in
contempt of court. Where the target of the subpoena is an executive branch official, civil
1
See generally, RONALD L. GOLDFARB, THE CONTEMPT POWER (2d ed., Anchor Books 1971).
Compare Jurney v. MacCracken, 294 U.S. 125 (destruction of documentary evidence which had been subpoenaed by
a committee of Congress can constitute contempt) with Marshall v. Gordon, 243 U.S. 521 (1917) (publication by U.S.
Attorney of letter critical of Congress could not constitute contempt because it did not directly obstruct the legislative
process). The Jurney decision also upheld the use of the inherent contempt power to punish a past contempt, even
where removal of the obstruction to the legislative process was no longer possible. See Jurney, 294 U.S. at 147-48, 150.
3
However, in two cases, defendants entered pleas of nolo contendere to the statutory offense of contempt, a
misdemeanor, rather than stand trial for perjury, a felony. United States v. Helms, Cr. No. 77-650 (D.D.C. 1977);
United States v. Kleindienst, Cr. No. 74-256 (D.D.C. 1974); see also Prosecution of Contempt of Congress, Hearing
before the Subcommittee on Administrative Law and Governmental Relations of the House Judiciary Committee on
H.R. 2684 and H.R. 3456, 98th Cong., 1st Sess., 29 (1983) (prepared statement of Stanley Brand, former Counsel to the
Clerk of the House). It should also be noted that a witness who refuses to testify before a committee, or who provides a
committee with false or misleading testimony, can potentially be prosecuted under other criminal provisions, including
18 U.S.C. §1001 (false statements), 18 U.S.C. §1621 (perjury), and 18 U.S.C. §1505 (obstruction of committee
proceedings). A detailed discussion of those offenses, however, is beyond the scope of this report. See generally, JAMES
HAMILTON, THE POWER TO PROBE: A STUDY OF CONGRESSIONAL INVESTIGATIONS, 78 (1976).
4
With respect to subpoenas issued against the executive branch, Congress may utilize other powers, including the
imposition of funding restrictions, to coerce compliance.
5
See, “Inherent Contempt” infra.
6
2 U.S.C. §§192, 194.
7
See, “Statutory Criminal Contempt” infra.
8
See, “Civil Enforcement of Subpoenas” infra.
2
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enforcement may be the only practical means by which Congress can effectively ensure
compliance with its own subpoena.9
This report examines the source of the contempt power, reviews the historical development of the
early case law, outlines the statutory, common law, and constitutional limitations on the contempt
power, and analyzes the procedures associated with inherent contempt, criminal contempt, and
the civil enforcement of congressional subpoenas.
Congress’s Power to Investigate
The power of Congress to punish for contempt is inextricably related to the power of Congress to
investigate.10 Generally speaking, Congress’s authority to investigate and obtain information,
including but not limited to confidential information, is extremely broad. While there is no
express provision of the Constitution or specific statute authorizing the conduct of congressional
oversight or investigations, the Supreme Court has firmly established that such power is essential
to the legislative function as to be implied from the general vesting of legislative powers in
Congress.11 The broad legislative authority to seek and enforce informational demands was
unequivocally established in two Supreme Court rulings arising out of the 1920’s Teapot Dome
scandal.
In McGrain v. Daugherty,12 which arose out of the exercise of the Senate’s inherent contempt
power, the Supreme Court described the power of inquiry, with the accompanying process to
enforce it, as “an essential and appropriate auxiliary to the legislative function.” The Court
explained:
A legislative body cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect or change; and where the
legislative body does not itself possess the requisite information—which not infrequently is
true—recourse must be had to others who possess it. Experience has taught that mere
requests for such information often are unavailing, and also that information which is
volunteered is not always accurate or complete; so some means of compulsion are essential
to obtain that which is needed. All this was true before and when the Constitution was
framed and adopted. In that period the power of inquiry—with enforcing process—was
regarded and employed as a necessary and appropriate attribute of the power to legislate—
indeed, was treated as inhering in it. Thus there is ample warrant for thinking, as we do, that
the constitutional provisions which commit the legislative function to the two houses are
intended to include this attribute to the end that the function may be effectively exercised.13
9
See, “Implementation of a Contempt Resolution or a Civil Enforcement Action Against an Executive Branch Official”
infra.
10
See generally, Allen B. Moreland, Congressional Investigations and Private Persons, 40 SO. CAL. L. REV. 189
(1967).
11
See, e.g., Nixon v. Administrator of General Services, 433 U.S. 435 (1977); Eastland v. United States Servicemen’s
Fund, 421 U.S. 491 (1975); Barenblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States, 354 U.S. 178
(1957); McGrain v. Daugherty, 273 U.S. 135 (1927); Committee on the Judiciary v. Miers, 558 F. Supp. 2d 53, 84
(D.D.C. July 31, 2008) (“In short, there can be no question that Congress has a right—derived from its Article I
legislative function—to issue and enforce subpoenas, and a corresponding right to the information that is the subject of
such subpoenas. Several Supreme Court decisions have confirmed that fact.”).
12
273 U.S. 135, 174-75 (1927).
13
Id.
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In Sinclair v. United States,14 a different witness at the congressional hearings refused to provide
answers, and was prosecuted for contempt of Congress. The witness had noted that a lawsuit had
been commenced between the government and the Mammoth Oil Company, and declared, “I shall
reserve any evidence I may be able to give for those courts ... and shall respectfully decline to
answer any questions propounded by your committee.”15 The Supreme Court upheld the witness’s
conviction for contempt of Congress. The Court considered and rejected in unequivocal terms the
witness’s contention that the pendency of lawsuits provided an excuse for withholding
information. Neither the laws directing that such lawsuits be instituted, nor the lawsuits
themselves, “operated to divest the Senate, or the committee, of power further to investigate the
actual administration of the land laws.”16 The Court further explained that
[i]t may be conceded that Congress is without authority to compel disclosure for the purpose
of aiding the prosecution of pending suits; but the authority of that body, directly or through
its committees to require pertinent disclosures in aid of its own constitutional power is not
abridged because the information sought to be elicited may also be of use in such suits.17
Subsequent Supreme Court rulings have consistently reiterated and reinforced the breadth of
Congress’s investigative authority. For example, in Eastland v. United States Servicemen’s Fund,
the Court explained that “[t]he scope of [Congress’s] power of inquiry ... is as penetrating and farreaching as the potential power to enact and appropriate under the Constitution.”18 In addition, the
Court in Watkins v. United States, described the breadth of the power of inquiry. According to the
Court, Congress’s power “to conduct investigations is inherent in the legislative process. That
power is broad. It encompasses inquiries concerning the administration of existing laws as well as
proposed or possibly needed statutes.”19 The Court did not limit the power of congressional
inquiry to cases of “wrongdoing.” It emphasized, however, that Congress’s investigative power is
at its peak when the subject is alleged waste, fraud, abuse, or maladministration within a
government department. The investigative power, the Court stated, “comprehends probes into
departments of the Federal Government to expose corruption, inefficiency, or waste.”20 “[T]he
first Congresses,” held “inquiries dealing with suspected corruption or mismanagement by
government officials”21 and subsequently, in a series of decisions, “[t]he Court recognized the
danger to effective and honest conduct of the Government if the legislative power to probe
corruption in the Executive Branch were unduly hampered.”22 Accordingly, the Court now clearly
recognizes “the power of the Congress to inquire into and publicize corruption,
maladministration, or inefficiencies in the agencies of Government.”23
14
279 U.S. 263 (1929).
Id. at 290.
16
Id. at 295.
17
Id.
18
421 U.S. 491, 504, n. 15 (1975) (quoting Barenblatt v. United States, 360 U.S. 109, 111 (1960)).
19
354 U.S. 178, 187 (1957).
20
Id.
21
Id. at 182.
22
Id. at 194-95
23
Id. at 200 n. 33; see also Morrison v. Olson, 487 U.S. 654, 694 (1988) (noting that Congress’s role under the
Independent Counsel Act “of receiving reports or other information and oversight of the independent counsel’s
activities ... [are] functions we have recognized as being incidental to the legislative function of Congress”) (citing
McGrain v. Daugherty, 273 U.S. 135 (1927)).
15
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The inherent contempt power is not specified in a statute or constitutional provision, but has been
deemed implicit in the Constitution’s grant to Congress of all legislative powers. In an inherent
contempt proceeding, the offender is tried at the bar of the House or Senate and can be held in
custody until such time as the contemnor provides the testimony or documents sought, or until the
end of the session. Inherent contempt was most often used as a means of coercion, not
punishment. A statutory criminal contempt provision was first enacted by Congress in 1857, in
part because of the inadequacies of proceedings under the inherent power. In cases of criminal
contempt, the offender is cited by the subcommittee, the committee, and the full House or Senate,
with subsequent indictment by a grand jury and prosecution by the U.S. Attorney. Criminal
contempt, unlike inherent contempt, is intended as a means of punishing the contemnor for noncompliance rather than to obtain the information sought. A statutory civil enforcement procedure,
applicable only to the Senate, was enacted in 1978. Under that procedure, a witness, who refuses
to testify before a Senate committee or provide documents sought by the committee can, after
being served with a court order, be held in contempt of court and incarcerated until he agrees to
testify. Moreover, the House and Senate have authorized standing or special committees to seek
civil enforcement of subpoenas.24
Early History of Congressional Contempt
While the contempt power was exercised both by the English Parliament25 and by the American
colonial assemblies,26 Congress’s first assertion of its contempt authority occurred in 1795,
shortly after the ratification of the Constitution. At the time, three Members of the House of
Representatives reported that they had been offered what they interpreted to be a bribe by men
named Robert Randall and Charles Whitney.27 The House of Representatives interpreted these
allegations as sufficient evidence of an attempt to corrupt its proceedings and reported a
resolution ordering their arrest and detention by the Sergeant-at-Arms, pending further action by
the House.28 The matter was then referred to a special Committee on Privileges which reported
out a resolution recommending that formal proceedings be instituted against Messrs. Randall and
Whitney at the bar of the House.29 In addition, the resolution provided that the accused be
questioned by written interrogatories submitted by the Speaker of the House with both the
24
See, e.g., S.Res. 60 & S.Res. 194, 93d Cong., (1973) (Senate Select Committees on Watergate); H.Res. 60, 97th
Cong., (1981) (ABSCAM); H.Res. 12, 100th Cong. (1987) (House Iran–Contra); S.Res. 23, 100th Cong. (1987) (Senate
Iran–Contra); H.Res. 463, 105th Cong., (1998) (Select Committee on National Security Commercial Concerns); see
also H.Res. 1420, 94th Cong. 2d Sess. (1976) (authorizing the chairman of the House Interstate and Foreign Commerce
Subcommittee on Oversight and Investigations to intervene in United States v. American Telephone & Telegraph, 419
F. Supp. 454 (D.D.C. 1976)); H.Res. 899, 121 CONG. REC. 918-19 (1975) (authorizing the chairman of the House
Interstate and Foreign Commerce Subcommittee on Oversight and Investigations to intervene in Ashland Oil Inc., v.
FTC, 409 F. Supp. 297, 307 (D.D.C. 1976)); H.Res. 980, 110th Cong. (2008) (authorizing the chairman of the House
Committee on the Judiciary to initiate judicial proceedings affirming the authority of a congressional subpoena.).
25
MAY’S TREATISE ON THE LAW, PRIVILEGES, PROCEEDINGS AND USAGE OF PARLIAMENT, 141-42 (17th ed . 1964).
26
MARY PATTERSON CLARKE, PARLIAMENTARY PRIVILEGE IN THE AMERICAN COLONIES (1971); see also CARL BECK,
CONTEMPT OF CONGRESS: A STUDY OF THE PROSECUTIONS INITIATED BY THE COMMITTEE ON UN-AMERICAN ACTIVITIES,
1945-1957 (1959) [hereinafter Beck].
27
2 ASHER C. HINDS, PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, §1599 (1907) [hereinafter Hinds’s Precedents].
According to the records, Messrs. Randall and Whitney allegedly offered three Members emoluments and money in
exchange for the passage of a law granting Randall and his associates some 18-20 million acres of land bordering Lake
Erie. See id.
28
Id.
29
Id. at §1600.
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questions and the answers entered into the House minutes.30 The resolution also provided that
individual Members could submit written questions to the accused.31
Upon adopting the resolution and after considerable debate, the House determined that the
following procedures be adhered to: First, the complaining Members were to submit a written
signed information to the accused and for publication in the House Journal. In addition, the
accused were to be provided counsel, the right to call witnesses on their behalf, the right to crossexamination of the complaining Members through written questions submitted to the Speaker,
and adequate time to prepare a defense.32 A proceeding was held at the bar of the House, and on
January 4, 1796, the House, by a vote of 78-17, adopted a resolution finding Mr. Randall guilty of
“a contempt to, and a breach of the privileges of, this House by attempting to corrupt the integrity
of its Members in the manner laid to his charge.”33 The House ordered Mr. Randall to be brought
to the bar, reprimanded by the Speaker, and held in custody until further resolution of the
House.34 Mr. Randall was detained until January 13, 1796, when he was discharged by House
resolution. Mr. Whitney, on the other hand, was absolved of any wrongdoing as the House
determined that his actions were against a “member-elect,” and had taken place “away from the
seat of government.”35
Of additional significance is the fact that the records indicate that almost no question was raised
with respect to the power of Congress to punish a non-Member for contempt. According to one
commentator, who noted that many of the Members of the early Congress were also members of
the Constitutional Convention and, thus, fully aware of the legislative practices of the time, it was
“substantially agreed that the grant of the legislative power to Congress carried with it by
implication the power to punish for contempt.”36
Four years later, the Senate exercised its contempt power against William Duane, who, as editor
of the Aurora newspaper, was charged with the publication of a libelous article concerning the
Senate and one of its committees. Mr. Duane was ordered by Senate resolution to appear before
the bar of the Senate and “make any proper defense for his conduct in publishing the aforesaid
false, defamatory, scandalous, and malicious assertions and pretended information.”37 At his
initial appearance before the Senate, Mr. Duane requested, and was granted, the assistance of
counsel and ordered to appear again two days later.38 Instead of appearing before the Senate as
ordered, Mr. Duane submitted a letter indicating he did not believe he could receive a fair trial
before the Senate.39 Mr. Duane was subsequently held in contempt of the Senate for his failure to
appear, not for his alleged libelous and defamatory publications.40 As a result, he was held in the
30
Id.
Id.
32
Id. at §§1601-1602. The proceedings appear to have been delayed from December 30, 1795 to January 4, 1796, at the
request of Randall and his counsel. Id.
33
Id. at §1603.
34
Id.
35
Id.
36
C.S. Potts, Power of Legislative Bodies to Punish for Contempt, 74 U. PENN. L. REV. 691, 720 (1926).
37
2 Hinds’s Precedents, supra note 26 at §1604.
38
Id.
39
Id.
40
Id. The Senate voted 16-11 to hold Mr. Duane in contempt. Id.
31
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custody of the Senate for several weeks before the Senate, by resolution, instructed that he be
released and tried by the courts.41
The Senate’s contempt of Mr. Duane generated considerably more debate concerning Congress’s
contempt authority. A majority of Senators argued that the Senate’s contempt power was an
inherent right of legislative bodies, derived not specifically from the Constitution, but rather from
“the principle of self-preservation, which results to every public body from necessity and from
the nature of the case.”42 Moreover, Senators supportive of this position argued that their
reasoning was firmly supported by English and colonial practices, as well as the practice of the
state legislatures. Finally, the majority asserted that if Congress did not possess a contempt power
it would be vulnerable to the disruption of its proceedings by outside intruders.43
While the Senate’s exercise of its contempt power was not without precedent, many Senators
disputed these claims, arguing that all powers sought to be exercised by Congress must be
specifically derived from the Constitution; that because the contempt power is not among the
enumerated powers given to Congress, the power is reserved to the states and the people. In
addition, the minority argued that Congress, unlike the English Parliament or state legislatures,
was intentionally not granted the plenary powers of sovereignty by the Constitution and, thus,
could not claim any inherent right to self-preservation.44 As an alternative, the minority proposed
that Congress, which has the power to “make all laws which shall be necessary and proper for
carrying into execution the foregoing powers”45 had sufficient authority to enact a statute that
would protect the integrity of its proceedings.46 Moreover, the minority argued that disruptions of
congressional proceedings would continue to be subject to the criminal laws.47
After Mr. Duane’s contempt by the Senate, it appeared that the subject of the Congress’s inherent
contempt power was settled. The authority, however, was not used again for another 12 years. In
1812, the House issued a contempt resolution against Mr. Nathaniel Rounsavell, who had refused
to answer a select committee’s questions concerning which Representative had given him
information regarding secret sessions.48 However, before Mr. Rounsavell was brought before the
bar of the House a Member admitted his indiscretion and the matter was not pursued.49
Congress’s inherent contempt power was not used again until 1818, where it eventually made its
way to the Supreme Court for adjudication.
41
Id. The records indicate that Mr. Duane was held in contempt of the Senate on March 27, 1800, and released by
resolution adopted on May 14, 1800, the last day of the session, by a vote of 13-4. Id.
42
Senate Proceedings, 6th Cong. 1799-1801 86 (March 5, 1800); see also Constitution, Jefferson’s Manual, and the
Rules of the House of Representatives, H.R. Doc. 108-241, 108th Cong., 2d Sess., §§297-299 (2005) [hereinafter
Jefferson’s Manual]
43
See id.
44
Id. at §298
45
U.S. CONST. Art. 1, §8, cl.18.
46
Jefferson’s Manual, supra note 41 at §298.
47
See id.
48
See Beck, supra note 25 at 192.
49
Id.
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Anderson v. Dunn
In 1821, the Supreme Court was faced with interpreting the scope of Congress’s contempt
power.50 The case arose when Representative Louis Williams of North Carolina introduced a
letter before the House from a John Anderson, which Representative Williams interpreted as an
attempt to bribe him.51 Following its 1795 precedent, the House adopted a resolution ordering the
Sergeant-at-Arms to arrest Mr. Anderson bring him before the bar of the House. Upon Mr.
Anderson’s arrest, however, a debate erupted on the floor of the House as the motion for referral
to the Committee on Privileges to adopt procedures was considered. Several Members objected to
the House’s assertion of an inherent contempt power. They argued, as the minority Senators had
in Mr. Duane’s contempt, that neither the Constitution nor the general laws afforded the Congress
such an inherent power to punish for actions that occurred elsewhere.52 Relying on the 1795
precedent and examples from the British Parliament and state legislatures, the Committee was
formed and it adopted a resolution requiring Mr. Anderson to be brought before the bar of the
House for questioning by the Speaker.53 At his appearance, Mr. Anderson, like Mr. Randall and
Mr. Whitney before him, was afforded counsel and permitted to present the testimony of eleven
witnesses. Ultimately, Mr. Anderson was found in contempt of Congress and was ordered to be
reprimanded by the Speaker for the “outrage he committed” and discharged into the custody of
the Sergeant-at-Arms.54
Mr. Anderson subsequently filed suit against Mr. Thomas Dunn, the Sergeant-at-Arms of the
House, alleging assault, battery, and false imprisonment. Mr. Dunn responded by asserting that he
was carrying out the lawful orders of the House of Representatives. The Supreme Court heard the
case in February of 1821 and concluded that the Congress possessed the inherent authority to
punish for contempt and dismissed the charges against Mr. Dunn.55 The Court noted that while
the Constitution does not explicitly grant either House of Congress the authority to punish for
contempt, except in situations involving its own Members, such a power is necessary for
Congress to protect itself. The Court asserted that if the House of Representatives did not possess
the power of contempt it would “be exposed to every indignity and interruption, that rudeness,
caprice, or even conspiracy, may meditate against it.”56
The Court’s decision in Anderson does not define the specific actions that would constitute
contempt; rather, it adopted a deferential posture, noting that
it is only necessary to observe that there is nothing on the facts of the record from which it
can appear on what evidence the warrant was issued and we do not presume that the House
of Representatives would have issued it without fully establishing the facts charged on the
individual.57
50
Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821).
See 2 Hinds’s Precedents, supra note 26 at §1606. The letter offered Representative Williams $500 as “part pay for
extra trouble” with respect to furthering the claims of Mr. Anderson with respect to the River Raisin. Id.
52
Id.
53
Id.
54
Id.
55
Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821).
56
Id. at 228.
57
Id. at 234.
51
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The Anderson decision indicates that Congress’s contempt power is centered on those actions
committed in its presence that obstruct its deliberative proceedings. The Court noted that
Congress could supplement this power to punish for contempt committed in its presence by
enacting a statute, which would prohibit “all other insults which there is any necessity for
providing.”58
The Court in Anderson also endorsed the existing parliamentary practice that the contemnor could
not be held beyond the end of the legislative session.59 According to the Court,
[s]ince the existence of the power that imprisons is indispensable to its continuance, and
although the legislative power continues perpetual, the legislative body ceases to exist, on
the moment of its adjournment or periodical dissolution. It follows, that imprisonment must
terminate with that adjournment.60
Since Anderson was decided there has been an unresolved question as to whether this rule would
apply with equal force to a contempt by the Senate, since it is considered a “continuing body.”61
The Senate, it appears, has only addressed this issue once, in 1871, regarding the contempt of two
recalcitrant witnesses, Z.L. White and H.J. Ramsdell.62 During these contempt proceedings, the
Senate found itself near the end of a session and the question arose as to whether the Senate’s
acquiescence to the Anderson rule would provide adequate punishment. After vigorous debate,
the Senate instructed the Sergeant-at-Arms to release the prisoners immediately upon the final
adjournment of the Congress.63 The House, however, has imprisoned a contemnor for a period
that extended beyond the adjournment of a Congress. Patrick Wood was sentenced by the House
to a three-month term in jail for assaulting Representative Charles H. Porter.64 Although there is
no doubt that Mr. Woods’s period of incarceration extended beyond the date of adjournment, it
was not challenged and, therefore, there is no judicial opinion addressing the issue.
Kilbourn v. Thompson
In 1876, the House established a select committee to investigate the collapse of Jay Cooke &
Company, a real estate pool in which the United States had suffered losses as a creditor.65 The
58
Id. at 228.
See 2 Hinds’s Precedents, supra note 26 at §1604 (noting that Mr. Duane, who had been held in contempt by the
Senate, was released from custody on the last day of the legislative session).
60
Anderson, 19 U.S. (6 Wheat.) at 231.
61
Unlike the House, whose entire membership stands for election every two years, only one-third of the Senate is
elected each Congress.
62
Allen B. Moreland, Congressional Investigations and Private Persons, 40 SO. CAL. L. REV. 189, 199, n. 31 (1967)
[hereinafter Moreland].
63
Id.
64
See 2 Hinds’s Precedents, supra note 26 at §§1628-629.
65
See 2 Hinds’s Precedents, supra note 26 at §1609. It should also be noted that the Speaker also reported Mr.
Kilbourn’s contempt to the District Attorney for the District of Columbia pursuant to the 1857 criminal contempt
statute. According to records, the District Attorney presented the case to a grand jury and received an indictment for
five counts of contempt. The District Attorney requested the Mr. Kilbourn be turned over to his custody for trial. The
House, however, after considerable debate, adopted a resolution instructing the Sergeant-at-Arms not to release Mr.
Kilbourn. See 4 CONG. REC. 2483-2500, 2513-2532 (April 15-16 1876). Although the Supreme Court later indicated, in
the case of In re Chapman, 166 U.S. 661, 672 (1897), that the double jeopardy clause of the Constitution would not
prohibit a criminal prosecution of a witness for contempt of Congress after he had been tried at the bar of the House
under the inherent contempt power, subsequent developments in the interpretation of the double jeopardy clause
(continued...)
59
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committee was, by resolution, given the power to subpoena both persons and records pursuant to
its investigation. Acting under its authority, the committee issued a subpoena duces tecum to one
Hallet Kilbourn, the manager of the real estate pool. When Mr. Kilbourn refused to produce
certain papers or answer questions before the committee he was arrested and tried under the
House’s inherent contempt power. The House adjudged Mr. Kilbourn in contempt and ordered
him detained by the Sergeant-at-Arms until he purged himself of contempt by releasing the
requested documents and answering the committee’s questions.66
Mr. Kilbourn filed a suit against the Speaker, the members of the committee, and the Sergeant-atArms for false arrest. The lower court held in favor of the defendant dismissing the suit. Mr.
Kilbourn appealed, and the Supreme Court reversed, holding that Congress did not have a general
power to punish for contempt.67 While the Court appeared to recognize that Congress possessed
an inherent contempt power, it declined to follow Anderson v. Dunn’s expansive view of
Congress’s authority. Moreover, the Court rejected any reliance on the English and colonial
precedents establishing the source and extent of Congress’s contempt power. The Court stated
that
[w]e are of opinion that the right of the House of Representatives to punish the citizen for a
contempt of its authority or a breach of its privileges can derive no support from the
precedents and practices of the two Houses of the English Parliament, nor from the adjudged
cases in which the English courts have upheld these practices. Nor, taking what has fallen
from the English judges, and especially the later cases on which we have just commented, is
much aid given to the doctrine, that this power exists as one necessary to enable either House
of Congress to exercise successfully their function of legislation.68
The Court held that the investigation into the real estate pool was not undertaken by the
committee pursuant to one of Congress’s constitutional responsibilities, but rather was an attempt
to pry into the personal finances of private individuals, a subject that could not conceivably result
in the enactment of valid legislation. According to the Court, because Congress was acting
beyond its constitutional responsibilities, Mr. Kilbourn was not legally required to answer the
questions asked of him. In short, the Court held that
no person can be punished for contumacy as a witness before either House, unless his
testimony is required in a matter into which that House has jurisdiction to inquire, and we
feel equally sure that neither of these bodies possesses the general power of making inquiry
into the private affairs of the citizen.69
(...continued)
suggest that this aspect of the Chapman decision is no longer good law. See Grafton v. United States, 206 U.S. 333
(1907); Waller v. Florida, 397 U.S. 387 (1970); Columbo v. New York, 405 U.S. 9 (1972). However, it appears that
where the sanction imposed pursuant to the inherent contempt power is intended to be purely coercive and not punitive,
a subsequent criminal prosecution would be permissible since the double jeopardy clause bars only dual criminal
prosecutions. See S.Rept. No. 95-170, 95th Cong., 1st Sess., 89 (1977) (stating that “[o]nce a committee investigation
has terminated, a criminal contempt of Congress citation under 2 U.S.C. §192 might still be referred to the Justice
Department if the Congress finds this appropriate. Such prosecution for criminal contempt would present no double
jeopardy problem.”); see also Hearings Before the Senate Committee on Governmental Affairs on S. 555, 95th Cong.,
1st Sess., 798-800 (1977).
66
See 2 Hinds’s Precedents, supra note 26 at §1609.
67
Kilbourn v. Thompson, 103 U.S. 168, 189-90 (1881).
68
Id. at 189.
69
Id.
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In addition, the Court indicated that the investigation violated the doctrine of separation of
powers because judicial bankruptcy proceedings were pending relating to the collapse of the real
estate pool and, therefore, it might be improper for Congress to conduct an investigation that
could interfere with the judicial proceedings.70 The Court specifically challenged Congress’s
assertion that there were no other viable remedies available to the government to retrieve the lost
funds.71 Thus, the Court concluded that
the resolution of the House of Representatives authorizing the investigation was in excess of
the power conferred on that body by the Constitution; that the committee, therefore, had no
lawful authority to require Kilbourn to testify as a witness beyond what he voluntarily chose
to tell; that the orders and resolutions of the House, and the warrant of the speaker, under
which Kilbourn was imprisoned, are, in like manner, void for want of jurisdiction in that
body, and that his imprisonment was without any lawful authority.72
Finally, in dicta, the Court indicated that the contempt power might be upheld where Congress
was acting pursuant to certain specific constitutional prerogatives, such as disciplining its
Members, judging their elections, or conducting impeachment proceedings.
Although the precedential value of Kilbourn has been significantly limited by subsequent case
law, the case continues to be cited for the proposition that the House has no power to probe into
private affairs, such as the personal finances of an individual, on which legislation could not be
enacted. The doubts raised by Kilbourn about the scope of Congress’s contempt power have
essentially been removed by later cases sanctioning the use of the power in investigations
conducted pursuant to Congress’s authority to discipline its Members,73 to judge the elections of
its Members,74 and, most importantly, to probe the business and conduct of individuals to the
extent that the matters are subject to congressional regulation.75 For example, in McGrain v.
Daugherty, which involved a Senate investigation into the claimed failure of the Attorney General
to prosecute certain antitrust violations, a subpoena was issued to the brother of the Attorney
General, Mallie Daugherty, the president of an Ohio bank. When Daugherty refused to comply,
the Senate exercised its inherent contempt power and ordered its Sergeant-at-Arms to take him
into custody. The grant of a writ of habeas corpus was appealed to the Supreme Court. The
Court’s opinion in the case considered the investigatory and contempt powers of Congress to be
implicit in the grant of legislative power.76 The Court distinguished Kilbourn, which was an
investigation into purely personal affairs, from the instant case, which was a probe of the
operation of the Department of Justice (DOJ). According to the Court, the subject was plainly
“one on which legislation could be had and would be materially aided by information the
70
273 U.S. 135 (1927).
Id. at 194 (questioning “[h]ow could the House of Representatives know, until it had been fairly tried, that the courts
were powerless to redress the creditors of Jay Cooke & Co.? The matter was still pending in a court, and what right had
the Congress of the United States to interfere with a suit pending in a court of competent jurisdiction?”).
72
Id. at 196.
73
In Re Chapman, 166 U.S. 661 (1897).
74
Barry v. United States ex rel Cunningham, 279 U.S. 597 (1929).
75
McGrain v. Daugherty, 273 U.S. 135 (1927).
76
Id.
71
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investigation was calculated to elicit.”77 The Court in McGrain was willing to presume that the
investigation had been undertaken to assist the committee in its legislative efforts.78
Inherent Contempt
Congress’s inherent contempt power is not specifically granted by the Constitution, but is
considered necessary to investigate and legislate effectively. The validity of the inherent contempt
power was upheld in the early Supreme Court decision in Anderson v. Dunn and reiterated in
McGrain v. Daugherty. 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 purpose of the imprisonment or other sanction may be either punitive79 or
coercive.80 Thus, the witness can be imprisoned for a specified period of time as punishment, or
for an indefinite period (but not, at least by the House, beyond the end of a session of the
Congress) until he agrees to comply. One commentator has concluded that the procedure followed
by the House in the contempt citation that was at issue in Anderson v. Dunn is typical of that
employed in the inherent contempt cases.
These traditional methods may be explained by using as an illustration Anderson v. Dunn. ...
In 1818, a Member of the House of Representatives accused Anderson, a non-Member, of
trying to bribe him. ... The House adopted a resolution pursuant to which the Speaker
ordered the Sergeant-at-Arms to arrest Anderson and bring him before the bar of the House
(to answer the charge). When Anderson appeared, the Speaker informed him why he had
been brought before the House and asked if he had any requests for assistance in answering
the charge. Anderson stated his requests, and the House granted him counsel, compulsory
process for defense witnesses, and a copy, of the accusatory letter. Anderson called his
witnesses; the House heard and questioned them and him. It then passed a resolution finding
him guilty of contempt and directing the Speaker to reprimand him and then to discharge
him from custody. The pattern was thereby established of attachment by the Sergeant-atArms; appearance before the bar; provision for specification of charges, identification of the
accuser, compulsory process, counsel, and a hearing; determination of guilt; imposition of
penalty.81
When a witness is cited for contempt under the inherent contempt process, prompt judicial review
appears to be available by means of a petition for a writ of habeas corpus.82 In such a habeas
proceeding, the issues decided by the court might be limited to (a) whether the House or Senate
77
Id. at 177.
Id. at 177-178; see also ICC v. Brimson, 154 U.S. 447 (1894). It has been said that McGrain “very clearly removed
the doubt [that had existed after Kilbourn v. Thompson] as to whether Congress could force testimony in aid of
legislation.” Moreland, supra note 61, at 222. Although McGrain and Sinclair v. United States, 279 U.S. 263 (1929),
involved inquires into the activities of private individuals, there was a connection to property owned by the United
States and, therefore, it could not be said that purely personal affairs were the subjects of the investigations.
79
Jurney v. MacCracken, 294 U.S. 125, 147 (1935).
80
McGrain v. Daugherty, 273 U.S. at 161.
81
Thomas L. Shriner, Jr., Legislative Contempt and Due Process: The Groppi Cases, 46 IND. L. J. 480, 491 (1971)
[hereinafter Shriner].
82
See Marshall v. Gordon, 243 U.S. 521 (1917); see also United States v. Fort, 443 F.2d 670, 676 (D.C. Cir. 1970);
Theodore Sky, Judicial Review of Congressional Investigations: Is There an Alternative to Contempt, 31GEO. WASH. L.
REV. 399, 400, n.3 (1962) [hereinafter Sky].
78
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acted in a manner within its jurisdiction,83 and (b) whether the contempt proceedings complied
with minimum due process standards.84 While Congress would not have to afford a contemnor the
whole panoply of procedural rights available to a defendant in criminal proceedings, notice and
an opportunity to be heard would have to be granted.85 Also, some of the requirements imposed
by the courts under the statutory criminal contempt procedure (e.g., pertinency of the question
asked to the committee’s investigation) might be mandated by the due process clause in the case
of inherent contempt proceedings.86
Although many of the inherent contempt precedents have involved incarceration of the
contemnor, there may be an argument for the imposition of monetary fines as an alternative. Such
a fine would potentially have the advantage of avoiding a court proceeding on habeas corpus
grounds, as the contemnor would never be jailed or detained. Drawing on the analogous authority
that courts have to inherently impose fines for contemptuous behavior,87 it appears possible to
argue that Congress, in its exercise of a similar inherent function could impose fines as opposed
to incarceration. Additional support for this argument appears to be contained in dicta from the
1821 Supreme Court decision in Anderson v. Dunn. The Court questioned the “extent of the
punishing power which the deliberative assemblies of the Union may assume and exercise on the
principle of self preservation” and responded with the following:
Analogy, and the nature of the case, furnish the answer—“the least possible power adequate
to the end proposed;” which is the power of imprisonment. It may, at first view, and from the
history of the practice of our legislative bodies, be thought to extend to other inflictions. But
every other will be found to be mere commutation for confinement; since commitment alone
is the alternative where the individual proves contumacious.88
Finally, in Kilbourn v. Thompson, the Court suggested that in certain cases where the Congress
had authority to investigate, it may compel testimony in the same manner and by use of the same
means as a court of justice in like cases. Specifically, the Court noted that “[w]hether the power
of punishment in either House by fine or imprisonment goes beyond this or not, we are sure that
no person can be punished for contumacy as a witness before either House, unless his testimony
is required in a matter into which that House has jurisdiction to inquire....”89 While the language
of these cases and the analogous power possessed by courts seem to suggest the possibility of
levying a fine as punishment for contempt of Congress, we are aware of, and could not locate,
any precedent for Congress imposing a fine in the contempt or any other context.
In comparison with the other types of contempt proceedings, inherent contempt has the
distinction of not requiring the cooperation or assistance of either the executive or judicial
branches. The House or Senate can, on its own, conduct summary proceedings and cite the
83
Jurney v. MacCracken, 294 U.S. 125, 147 (1935); see also Kilbourn v. Thompson, 103 U.S. 168, 196 (1880); Ex
Parte Nugent, 18 F. 471 (D.D.C. 1848).
84
Groppi v. Leslie, 404 U.S. 496 (1972).
85
Id.
86
For a discussion of these statutory limitations on the contempt power see infra at notes 279-351 and accompanying
text.
87
See, e.g., United States v. United Mine Workers, 330 U.S. 258 (1947) (upholding a $700,000 fine against a labor
union as punishment for disobedience of a preliminary injunction preventing it from continuing a worker strike and
approving the imposition of a $2.8 million fine if the union did not end the strike within five days).
88
Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 230-31 (1821) (emphasis added).
89
Kilbourn v. Thompson, 103 U.S. 168, 190 (1881) (emphasis added).
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offender for contempt. Furthermore, 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.
There are also certain limitations on the inherent contempt process. Although the contemnor can
be incarcerated until he agrees to comply with the subpoena, imprisonment may not extend
beyond the end of the current session of Congress.90 Moreover, inherent contempt has been
described as “unseemly,” cumbersome, time-consuming, and relatively ineffective, especially for
a modern Congress with a heavy legislative workload that would be interrupted by a trial at the
bar.91 Because of these drawbacks, the inherent contempt process has not been used by either
body since 1935.92 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. Although
generally the proceedings in inherent contempt cases appear to have been conducted at the bar of
the House of Congress involved,93 in at least a few instances proceedings were conducted initially
or primarily before a committee, but with the final decision as to whether to hold the person in
contempt being made by the full body.94
Inherent Contempt Proceedings By Committees of Congress
As has been indicated, although the majority of the inherent contempts by both the House and the
Senate were conducted via trial at the bar of the full body, there is historical evidence to support
the notion that this is not the exclusive procedure by which such proceeding can occur. This
history, when combined with a 1993 Supreme Court decision addressing the power of Congress
to make its own rules for the conduct of impeachment trials,95 strongly suggests that the inherent
contempt process can be supported and facilitated by the conduct of evidentiary proceedings and
the development of recommendations at the committee level.
Actually, the consideration of the use of committees to develop the more intricate details of an
inquiry into charges of contempt of Congress date back to the very first inherent contempt
proceedings of Messrs. Randall and Whitney in 1795. As discussed above, in these cases the
House appointed a Committee on Privileges to report a mode of procedure. The Committee
reported the following resolution, which was adopted by the full House of Representatives:
90
Watkins v. United States, 354 U.S. 178, 207, n.45 (1957); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 231 (1821).
See S.Rept. No. 95-170, 95th Cong., 1st Sess., 97 (1977); see also Rex E. Lee, Executive Privilege, Congressional
Subpoena Power, and Judicial Review: Three Branches, Three Powers, and Some Relationships, 1978 B.Y.U. L. REV.
231, 255 n. 71 (1978) [hereinafter Lee].
92
4 DESCHLER’S PRECEDENTS OF THE U.S. HOUSE OF REPRESENTATIVES, ch. 15, §17, 139 n.7 (1977) [hereinafter
Deschler’s Precedents]; see also Lee, supra note 90, at 255.
93
See Beck, supra note 25, at 4; ERNEST J. EBERLING, CONGRESSIONAL INVESTIGATIONS 289 (1928) [hereinafter
Eberling].
94
For example, in 1865, the House appointed a select committee to inquiry into an alleged breach of privilege
committed by Mr. A.P. Field for assaulting a Member of the House. 72 CONG. GLOBE, 38th Cong., 2d Sess., 371 (1865).
After taking testimony, the committee recommended, and the House adopted, a resolution directing the Speaker to
reprimand Field at the bar of the House. Id. at 971, 974.
95
See United States v. Nixon, 506 U.S. 224 (1992).
91
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Resolved, That the said Robert Randall and Charles Whitney be brought to the bar of the
House and interrogated by the Speaker touching the information given against them, on
written interrogatories, which with the answers thereto shall be entered into the minutes of
the House. And that every question proposed by a Member be reduced to writing and a
motion made that the same be put by the Speaker. That, after such interrogatories are
answered, if the House deem it necessary to make any further inquiry on the subject, the
same be conducted by a committee to be appointed for that purpose.96
According to the Annals of Congress, the Committee’s language sparked a debate concerning the
proper procedures to be used, including a discussion regarding whether the use of such a select
committee was proper.97 At least one Representative “was convinced that the select committee
was alone competent to taking and arranging the evidence for the decision of the House.”98 While
others noted that “the investigation of facts is constantly performed by select committees. ... [The
committee’s] report is not to be final, it is to be submitted to the House for final decision.”99 It
was recommended that, “the subject should be remanded to a committee, which would save a
good deal of time.”100 Other Members, however, objected to the use of a select committee to hear
evidence of this magnitude on the grounds that it would be:
highly improper for the witness to be sworn by a select committee, and that committee to
send for the Members and have them sworn and examined in that private way. However
troublesome and difficult, the House must meet all the questions and decide them on this
floor.101
Ultimately, it appears that none of the proceedings in this case was conducted before a select
committee. That said, Congress’s interpretation of its own powers and prerogatives is significant.
It is clear that during the very first exercise of Congress’s power of inherent contempt, the House
allowed for the possibility that at least some of the proceedings could occur before a committee,
rather than at the bar of the House.
This early precedent was finally invoked in 1836, when after the assault of reporter Robert Codd
by reporter Henry Wheeler on the House floor, the House committed the examination of a
contempt and breach of privilege to a select committee. The House adopted the following
resolution empowering the committee to conduct a contempt investigation:
Resolved, That a select committee be forthwith appointed, whose duty it shall be forthwith to
inquiry into an assault committed within the Hall of the House of Representatives this
morning, while this House was in session and for and on account of which two persons are
now in custody of the Sergeant-at-Arms; and said committee are to make their report to this
House; and that said committee be authorized to administer oaths and to cause the attendance
of witnesses.102
96
See 2 Hinds’s Precedents, supra note 26 at §1599 (emphasis added).
See 5 ANNALS OF CONG. 188 (1792).
98
See id. (statement of Rep. Baldwin).
99
Id. at 189 (statement of Rep. W. Smith).
100
Id. at 190 (statement of Rep. W. Smith).
101
Id. at 188 (statement of Rep. Hillhouse).
102
2 Hinds’s Precedents, supra note 26 at §1630.
97
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The Committee’s report noted that Mr. Wheeler admitted his offense and included a
recommendation that the punishment not be vindictive.103 The report also contained three
resolutions that were considered by the full House. The first found Mr. Wheeler guilty of
contempt and breach of the privileges of the House, and was adopted. The second, which was
amended on the floor prior to adoption, excluded Mr. Wheeler from the floor of the House for the
remainder of the session. Finally, the third resolution, which called for Mr. Wheeler to be taken
into custody for the remainder of the session, was also amended on the floor prior to adoption to
simply discharge Mr. Wheeler from custody.104
Another example of the use of select committee to hear a contempt trial occurred in 1865, when it
was alleged that Mr. A.P. Field assaulted Congressman William Kelley. Similar to the contempt
proceedings of Mr. Wheeler, the House adopted the following resolution authorizing a select
committee to conduct an examination of the charges:
Be it Resolved, That a select committee of five members be appointed by the Speaker to
inquire into the said alleged breach of privilege; that the said committee have power to send
for persons and papers, and to examine witnesses; and that the committee report as soon as
possible all the facts and circumstances of the affair, and what order, if any, it is proper for
this House to take for the vindication of its privilege, and right, and duty of free legislation
and judgment.105
During the debate on the resolution it was observed that proceeding in this manner would avoid a
trial by the full House, which, in the words of one Member, “would consume a great amount of
the public time which there is a pressing need to apply to the business of the Government, it is
better that the course should be adopted which is contemplated by the resolution....”106
The select committee, in its report to the full House, noted that it had heard the testimony of
several witnesses concerning the incident, including the voluntary statement of Mr. Field.107 Also
according to the Committee, Mr. Field was present for each of the witnesses and, in fact, several
of them were heard from at his request. Moreover, all of the witnesses were subject to
examination or cross-examination by Mr. Field.108 At the committee’s recommendation, a
resolution directing the Speaker to issue a warrant for Mr. Field’s arrest by the Sergeant-at-Arms
for the purpose of bringing him before the Speaker for a reprimand was adopted.109 It does not
appear that Mr. Field or his counsel was permitted to be present during the House’s consideration
of the committee’s report, nor does it appear that he was afforded an opportunity to address the
House prior to his formal reprimand. In fact, during the course of the reprimand, the Speaker
expressly referred to Mr. Field having “been tried before a committee of their members, and
ordered to be reprimanded at the bar of the House by their Presiding Officer,”110 which may be
103
See id.; see also H.Rept. 792, 24th Cong. 1st Sess., (1836).
Id.; see also Groppi v. Leslie, 404 U.S. 496, 501 n.4 (1972) (citing the Wheeler committee procedure as an example
of procedures followed by Congress in contempt cases).
105
CONG. GLOBE, 38th Cong., 2nd Sess., 371 (1865).
106
Id. (statement of Rep. Thayer).
107
Id. at 971.
108
Id.
109
Id. at 972-74.
110
Id. at 991 (emphasis added).
104
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interpreted as indicating that the committee’s proceedings were deemed to be sufficient in the
eyes of the House.
Nixon v. United States
Although there is ample historical evidence of the presumed propriety of contempt proceedings
before committees of Congress, there has been no judicial ruling directly confirming the
Congress’s interpretation of its own contempt powers. In 1993, however, the Supreme Court
decided United States v. Nixon,111 which, while not a contempt case, involved an analogous
delegation of authority by the Senate to a select committee for the purposes of hearing evidence
regarding the impeachment of two federal judges. Specifically, the impeached judges challenged
the Senate’s procedure under Rule XI of the “Rules of Procedure and Practice in the Senate when
Sitting on Impeachment Trials,” which provides:
That in the trial of any impeachment the Presiding Officer of the Senate, if the Senate so
orders, shall appoint a committee of Senators to receive evidence and take testimony at such
times and places as the committee may determine, and for such purpose the committee so
appointed and the chairman thereof, to be elected by the committee, shall (unless otherwise
ordered by the Senate) exercise all the powers and functions conferred upon the Senate and
the Presiding Officer of the Senate, respectively, under the rules of procedure and practice in
the Senate when sitting on impeachment trials.
Unless otherwise ordered by the Senate, the rules of procedure and practice in the Senate
when sitting on impeachment trials shall govern the procedure and practice of the committee
so appointed. The committee so appointed shall report to the Senate in writing a certified
copy of the transcript of the proceedings and testimony had and given before the committee,
and such report shall be received by the Senate and the evidence so received and the
testimony so taken shall be considered to all intents and purposes, subject to the right of the
Senate to determine competency, relevancy, and materiality, as having received and taken
before the Senate, but nothing herein shall prevent the Senate from sending for any witness
and hearing his testimony in open Senate, or by order of the Senate having the entire trial in
open Senate.112
Judge Nixon argued that the use of a select committee to hear the evidence and witness testimony
of his impeachment violated the Senate’s constitutional duty to “try” all impeachments.
According to Judge Nixon, anything short of a trial before the full Senate was unconstitutional
and, therefore, required reversal and a reinstatement of his judicial salary. The Court held the
issue to be a non-justiciable political question. Chief Justice Rehnquist, writing for the Court,
based this conclusion upon the fact that the impeachment proceedings were textually committed
in the Constitution to the Legislative Branch. In addition, the Court found the “lack of finality and
the difficulty in fashioning relief counsel[led] against justiciability.”113 According to the majority,
to open “the door of judicial review to the procedures used by the Senate in trying impeachments
would ‘expose the political life of the country to months, or perhaps years, of chaos.’”114 The
Court found that the word “try” in the Impeachment Clause did not “provide an identifiable
111
506 U.S. 224 (1993).
Id. at 227, n. 1 (emphasis added).
113
Id. at 739.
114
Id. (quoting United States v. Nixon, 938 F.2d 239, 246 (D.C. Cir. 1991)).
112
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textual limit on the authority which is committed to the Senate.”115 Justice Souter’s concurring
opinion noted that “[i]t seems fair to conclude that the [Impeachment] Clause contemplates that
the Senate may determine, within broad boundaries, such subsidiary issues as the procedures for
receipt and consideration of evidence necessary to satisfy its duty to ‘try’ impeachments.”116
The Court’s affirmation of the Senate’s procedures with respect to the appointment of select
committees for impeachment trials, clearly indicates that the use of committees for contempt
proceedings—whether they be standing legislative committees, or select committees created by
resolution for a specific purpose—is a permissible exercise of each House’s Article I, Section 5
rulemaking power. As such, it would appear that one of the suggested reasons for the apparent
abandonment of the use of Congress’s inherent contempt power, namely, that it became to
cumbersome and time consuming to try contemptuous behavior on the floor of the body, is no
longer compelling. The ability to utilize the committee structure for trials, evidentiary hearings,
and other procedural determinations appears to be supported not only by the historical records of
previous contempt proceedings, but also by the Court’s decision in Nixon.
While the Court in Nixon addressed the permissibility of using select committees in impeachment
trials, it says nothing about the rights or privileges that would be required to be afforded to the
accused. Similarly, in any contempt proceedings before a congressional committee, the question
of rights and privileges remains one that has not yet been directly addressed by the courts.
According to the Supreme Court in Groppi v. Leslie:
[t]he past decisions of this Court strongly indicate that the panoply of procedural rights that
are accorded a defendant in a criminal trial has never been thought necessary in legislative
contempt proceedings. The customary practice in Congress has been to provide the
contemnor with an opportunity to appear before the bar of the House, or before a committee,
and give answer to the misconduct charged against him.117
The Court also suggested that “the length and nature of the [right to be heard] would traditionally
be left largely to the legislative body....”118 This deference to Congress in establishing its own
rules and procedures is consistent with the more recent decision in Nixon. Thus, it would appear
that while there is no definitive answer to the question of what rights the committee hearing a
contempt proceeding would be required to afford,119 so 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.
Congressional precedent would also appear to be a useful guide to the question of what process is
due. A review of early exercises of inherent contempt, discussed above, indicates that the
115
Id. at 740.
Id. at 748 (Souter, J., concurring).
117
See Groppi v. Leslie, 404 U.S. 496, 500-01 (1972) (citing Jurney v. MacCracken, 294 U.S. 125, 143-144 (1935);
Kilbourn v. Thompson, 103 U.S. 168, 173-174 (1880); Anderson v. Dunn, 19 U.S.( 6 Wheat.) 204, 209-211 (1821);
Marshall v. Gordon, 243 U.S. 521, 532 (1917)).
118
Id. at 503.
119
While the Supreme Court in Groppi limited its holding to requiring only notice and the opportunity to be heard, the
lower court in the same case suggested that the following rights were also necessary: representation by counsel; the
ability to compel the attendance of witnesses; an opportunity to confront any accusers; and the right to present a
defense to the charges. See Groppi v. Leslie, 311 F.Supp. 772, 774 (W.D. Wisc. 1970), rev’d, 436 F.2d 326 (7th Cir.
1970), rev’d., 404 U.S. 496 (1972).
116
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following procedures have been established: attachment by the Sergeant-at-Arms; appearance
before the bar; provision for specification of charges; identification of the accuser; compulsory
process; provision of counsel; a hearing; determination of guilt; and imposition of a penalty.
According to one commentator, “[t]his traditional procedure was followed by both houses of
Congress until they abandoned it for a more convenient statutory device.”120 Since these
procedures appear to be in excess of what the Court instructed was required in Groppi, it would
seem reasonable to conclude that any inherent contempt proceeding that conforms with these
traditions would likely satisfy judicial review.
Statutory Criminal Contempt
Between 1795 and 1857, 14 inherent contempt actions were initiated by the House and Senate,
eight of which can be considered successful in that the contemnor was meted out punishment,
agreed to testify or produce documents. Such inherent contempt proceedings, however, involved a
trial at the bar of the chamber concerned and, therefore, were seen by some as time-consuming,
cumbersome, and in some instances ineffective—because punishment could not be extended
beyond a House’s adjournment date.121 In 1857, a statutory criminal contempt procedure was
enacted,122 largely as a result of a particular proceeding brought in the House of Representatives
that year. The statute provides for judicial trial of the contemnor by a United States Attorney
rather than a trial at the bar of the House or Senate. It is clear from the floor debates and the
subsequent practice of both Houses that the legislation was intended as an alternative to the
inherent contempt procedure, not as a substitute for it. A criminal contempt referral was made in
the case of John W. Wolcott in 1858, but in the ensuing two decades after its enactment most
contempt proceedings continued to be handled at the bar of the House, rather than by the criminal
contempt method, apparently because Members felt that they would not be able to obtain the
desired information from the witness after the criminal proceedings had been instituted.123 With
only minor amendments, those statutory provisions are codified today as 2 U.S.C. §§192 and 194,
which state:
Every person who having been summoned as a witness by the authority of either House of
Congress to give testimony or to produce papers upon any matter under inquiry before either
House, or any joint committee established by a joint or concurrent resolution of the two
Houses of Congress, or any committee of either House of Congress, willfully makes default,
or who, having appeared, refuses to answer any question pertinent to the question under
inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than
[$100,000] nor less than $100 and imprisonment in a common jail for not less than one
month nor more than twelve months.124
120
Shriner, supra note 80 at 491.
See Eberling, supra note 92 at 302-16.
122
Act of January 24, 1857, c. 19 §3, 11 Stat. 156 (1857) (codified as amended at 2 U.S.C. §§192, 194 (2000)). The
constitutionality of the statute was upheld by the Supreme Court in 1897. See In re Chapman, 166 U.S. 661 (1897).
123
Beck, supra note 25 at 191-214. In the appendix to Beck’s study, he provides a comprehensive list of persons from
1793-1943 who were held in contempt of Congress, and the circumstances surrounding their cases. A review of Beck’s
chronology indicates that from 1857-1934 Congress relied on its inherent contempt power almost exclusively, despite
the availability of the criminal statute. See id. Moreover, Beck’s detailed history indicates that in at least 28 instances,
witnesses who were either threatened with, or actually charged with, contempt of Congress purged their citations by
either testifying or providing documents to the inquiring congressional committees. See id.
124
2 U.S.C. §192 (2000). As a result of congressional classification of offenses, the penalty for contempt of Congress is
(continued...)
121
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Whenever a witness summoned as mentioned in Section 192 of this title fails to appear to
testify or fails to produce any books, papers, records, or documents, as required, or whenever
any witness so summoned refuses to answer any question pertinent to the subject under
inquiry before either House, or any joint committee established by a joint or concurrent
resolution of the two Houses of Congress, or any committee or subcommittee of either
House of Congress, and the fact of such failure or failures is reported to either House while
Congress is in session or when Congress is not in session, a statement of fact constituting
such failure is reported to and filed with the President of the Senate or the Speaker of the
House, it shall be the duty of the said President of the Senate or Speaker of the House, as the
case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal
of the Senate or House, as the case may be, to the appropriate United States attorney, whose
duty it shall be to bring the matter before the grand jury for its action.125
The legislative debate over the criminal contempt statute reveals that it was prompted by the
obstruction of a House select committee’s investigation into allegations of misconduct that had
been made against several Members of the House of Representatives. According to reports, the
investigation was hindered by the refusal of a newspaper reporter, James W. Simonton, to provide
answers to certain questions posed by the committee.126 The select committee responded by
reporting a resolution citing Mr. Simonton for contempt, as well as introducing a bill127 that was
intended “to more effectually ... enforce the attendance of witnesses on the summons of either
House of Congress, and to compel them to discover testimony.”128 It appears that there were no
printed House or Senate committee reports on the measure, though it was considered in the House
by the select committee and in the Senate by the Judiciary Committee.129
According to the legislative debate records and commentators, there was opposition to the bill on
several fronts. Some Members proposed an amendment expressly codifying Congress’s contempt
power for failure to comply with requests for documents or testimony, thereby resurrecting the
view that Congress did not possess any inherent power to punish for contempt.130 Others argued
that Congress’s inherent contempt powers rendered the proposed bill unnecessary.131 Still other
Members opposed the bill on the grounds that it violated the Fourth and Fifth Amendments of the
Constitution, because it sanctioned unreasonable searches and seizures, compelled persons to
incriminate themselves, and violated the prohibition on persons being punished twice for the
same offense (double jeopardy).132
In response to arguments that such a statute was unnecessary given Congress’s inherent authority
to hold individuals in contempt, supporters made clear that the proposed bill was not intended in
any way to diminish Congress’s inherent contempt authority.133 Rather, supporters of the bill saw
(...continued)
a Class A misdemeanor; thus, the $1,000 maximum fine under §192 has been increased to $100,000. See 18 U.S.C.
§§3559, 3571 (2000).
125
2 U.S.C. §194 (2000).
126
See Eberling, supra note 92 at 302-04.
127
H.R. 757, 34th Cong., 3d Sess. (1857).
128
42 CONG. GLOBE. 34th Cong., 3d Sess., 403-04 (1857) (discussing H.R. 757).
129
See id. at 425-26.
130
See Eberling, supra note 92 at 309; see also supra notes 88-93 and accompanying text.
131
Id. at 311.
132
Id. at 309.
133
42 CONG. GLOBE, 34th Cong., 3d Sess., 404 (1857) (statement of Mr. Orr) (providing that “ Some gentlemen say that
(continued...)
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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.”134 The main concern of proponents seems to have been Congress’s
ability to impose adequate punishments for contempts that occur near the end of a session,
especially in the House, where the prevailing view was that the Court’s opinion in Anderson v.
Dunn135 prohibited terms of incarceration that extended beyond the adjournment of a session.136
With respect to the arguments surrounding the Fourth and Fifth Amendments, supporters asserted
that the bill provided the protection of the judiciary, via a judicial trial, for the potential
contumacious witnesses. Moreover, supporters argued that the bill removed such witnesses “from
the passions and excitement of the Hall—where partisans may frequently, in political questions,
carry into the measures of punishment their party hostilities.”137
The bill was ultimately passed by both the House138 and the Senate.139 According to one
commentator, the bill was adopted for three reasons:
[F]irst, to increase the power of either House of Congress to punish for contempt in cases of
contumacy of witnesses, ... second, to compel criminating testimony. A third reason,
although undoubtedly a minor one, was that the effect of the enactment of this legislation
would be to remove the trial of cases of contempt of either House of Congress from their
respective bars to the courts, where passion and partisanship would not influence the
decision against the prisoner and where he would have a trial by jury and all the other
constitutional safeguards of court proceedings.140
Under 2 U.S.C. §192, a person who has been “summoned as a witness” by either House or a
committee thereof to testify or to produce documents and who fails to do so, or who appears but
refuses to respond to questions, is guilty of a misdemeanor, punishable by a fine of up to
$100,000 and imprisonment for up to one year. 2 U.S.C. §194 establishes the procedure to be
followed by the House or Senate if it chooses to refer a recalcitrant witness to the courts for
criminal prosecution rather than try him at the bar of the House or Senate. Under the procedure
outlined in Section 194,141 “the following steps precede judicial proceedings under [the statute]:
(1) approval by committee;142 (2) calling up and reading the committee report on the floor; (3)
(...continued)
the very fact of presenting this bill is an admission that the House has no power upon this subject, and that it negatives
the resolution which we have already adopted, that is, to take [Mr.] Simonton into custody and bring him before the
House to answer for his contempt. No such thing. The power of this House I believe is conceded by all....”)
134
Eberling, supra note 92 at 306; see also 42 CONG. GLOBE, 34th Cong., 3d Sess., 405 (1857) (statement of Mr. Orr).
135
See supra notes 49-63 and accompanying text.
136
42 CONG. GLOBE, 34th Cong., 3d Sess., 404 (1857) (statement of Mr. Orr) (stating “[s]uppose that two days before
the adjournment of this Congress there is a gross attempt on the privileges of this House by corrupt means of any
description; then the power of this House extends only to those two days. Is that an adequate punishment? Ought we
not then, to pass a law which will make the authority of the House respected;....”).
137
Eberling, supra note 92 at 313 (citing 42 CONG. GLOBE, 34th Cong. 3d Sess., 427 (1857) (statement of Mr. Davis).
138
42 CONG. GLOBE, 34th Cong., 3d Sess., 433 (1857).
139
Id. at 445.
140
Eberling, supra note 92 at 316.
141
The language of §194 does not provide a complete picture of the process. For a more detailed explanation of the
workings of the procedure, reference should be made to the actual practice in the House and Senate. See 4 Deschler’s
Precedents, supra note 91, at §§17-22.
142
In case of a defiance of a subcommittee subpoena, subcommittee approval of the contempt citation precedes
committee action on the matter.
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either (if Congress is in session) House approval of a resolution authorizing the Speaker to certify
the report to the U.S. Attorney for prosecution, or (if Congress is not in session) an independent
determination by the Speaker to certify the report;143 [and] (4) certification by the Speaker to the
appropriate U.S. Attorney for prosecution.144
The criminal contempt statute and corresponding procedure are punitive in nature. It is used when
the House or Senate wants to punish a recalcitrant witness and, by doing so, to deter others from
similar contumacious conduct.145 The criminal sanction is not coercive because the witness
generally will not be able to purge himself by testifying or supplying subpoenaed documents after
he has been voted in contempt by the committee and the House or Senate. Consequently, once a
witness has been voted in contempt, he lacks an incentive for cooperating with the committee.
However, although the courts have rejected arguments that defendants had purged themselves,146
in a few instances the House has certified to the U.S. Attorney that further proceedings
concerning contempts were not necessary where compliance with subpoenas occurred after
contempt citations had been voted but before referral of the cases to grand juries.147
Under the statute, after a contempt has been certified by the President of the Senate or the
Speaker, it is the “duty” of the United States Attorney “to bring the matter before the grand jury
for its action.”148 It remains unclear whether the “duty” of the U.S. Attorney to present the
contempt to the grand jury is mandatory or discretionary. The case law that is most relevant to the
question provides conflicting guidance. In Ex parte Frankfeld,149 the District Court for the
District of Columbia granted petitions for writs of habeas corpus sought by two witnesses before
the House Committee on Un-American Activities. The witnesses were charged with violating 2
U.S.C. §192, and were being held on a warrant based on the affidavit of a committee staff
member.150 The court ordered the witnesses released since the procedure, described as
“mandatory” by the court,151 had not been followed. The court, in dicta, not central to the holding
of the case, observed that Congress prescribed that
when a committee such as this was confronted with an obdurate witness, a willful witness,
perhaps, the committee would report the fact to the House, if it be a House committee, or to
the Senate, if it be a Senate committee, and that the Speaker of the House or the President of
the Senate should then certify the facts to the district attorney.
143
See Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966).
4 Deschler’s Precedents, supra note 91, at p. 141. While the quoted description is from the compilation of House
precedents, the same procedure is employed in the Senate, but with the President of the Senate performing the functions
that are the responsibility of the Speaker in cases of contempt of the House.
145
See, e.g., S.Rept. No. 95-170, 95th Cong., 1st Sess., 97 (1977).
146
United States v. Costello, 198 F.2d 200 (2d Cir. 1952), cert. denied, 344 U.S. 874 (1952); United States v.
Brewester, 154 F. Supp. 126 (D.D.C. 1957), rev’d on other grounds, 255 F.2d 899 (D.C. Cir. 1958), cert. denied, 358
U.S. 842 (1958). However, the defendant’s sentence may be suspended where he complies with the committee’s
demand following his conviction. See United States v. Tobin, 195 F. Supp. 588, 617 (D.D.C. 1961).
147
See 4 Deschler’s Precedents, supra note 91, ch. 15, 521 (witness before the House Committee on Un-American
Activities voluntarily purged himself of his contempt); see also H.Res. 180, 98th Cong. (resolution stating that
prosecution of Anne Gorsuch Burford, Administrator of the Environmental Protection Agency, was not required
following implementation of an agreement granting the House access to documents which had been withheld under a
claim of executive privilege).
148
2 U.S.C. §194 (2000).
149
32 F.Supp 915 (D.D.C. 1940).
150
Id. at 916.
151
Id.
144
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It seems quite apparent that Congress intended to leave no measure of discretion to either the
Speaker of the House or the President of the Senate, under such circumstances, but made the
certification of facts to the district attorney a mandatory proceeding, and it left no discretion
with the district attorney as to what he should do about it. He is required, under the
language of the statute, to submit the facts to the grand jury.152
Similarly, in United States v. United States House of Representatives,153 a case that involved the
applicability of the Section 192 contempt procedure to an executive branch official, the same
district court observed, again in dicta, that after the contempt citation is delivered to the U.S.
Attorney, he “is then required to bring the matter before the grand jury.”154
Conversely, in Wilson v. United States,155 the United States Court of Appeals for the District of
Columbia Circuit concluded, based in part on the legislative history of the contempt statute and
congressional practice under the law, that the “duty” of the Speaker when certifying contempt
citations to the United States Attorney during adjournments is a discretionary, not a mandatory,
one.156 The court reasoned that despite its mandatory language, the statute had been implemented
in a manner that made clear Congress’s view that, when it is in session, a committee’s contempt
resolution can be referred to the U.S. Attorney only after approval by the parent body. When
Congress is not in session, review of a committee’s contempt citation is provided by the Speaker
or President of the Senate, rather than by the full House or Senate.157 This review of a
committee’s contempt citation, according to the court, may be inherently discretionary in nature,
whereas the prosecutor is simply carrying out Congress’s directions in seeking a grand jury
indictment.158 In Wilson, the defendants’ convictions were reversed because the Speaker had
certified the contempt citations without exercising his discretion.159 From this holding it may be
possible to argue that because the statute uses similar language when discussing the Speaker’s
“duty” and the “duty” of the U.S. Attorney, that the U.S. Attorney’s function is discretionary as
well, and not mandatory as other courts have concluded.
Alternatively, despite the similarity in the statutory language, there is an argument that the
functions of the Speaker and the President of the Senate are so different in nature under the
statutory scheme from those of the U.S. Attorney that to conclude that the function of the
prosecutor was intended to be discretionary simply because that is the interpretation given to the
function of the presiding officers is contrary to the understanding and intent of the 1857 Congress
that drafted the language.160 Nevertheless, it should be noted that the courts have generally
afforded United States Attorneys broad prosecutorial discretion, even where a statute uses
mandatory language.161 Moreover, prosecutorial discretion was the basis of the decision of the
152
Id. (emphasis added).
United States v. United States House of Representatives, 556 F. Supp. 150, 151 (D.D.C. 1983).
154
But see Ansara v. Eastland, 442 F.2d 751, 754, n.6 (D.C. Cir. 1971) (suggesting that “the Executive Branch ... may
decide not to present ... [a contempt citation] to the grand jury ... ”). The court in Ansara did not expressly consider the
nature of the prosecutor’s duty under 2 U.S.C. §194, nor did it provide any basis for its statement to the effect that the
prosecutor may exercise discretion in determining whether to seek an indictment.
155
369 F.2d 198 (D.C. Cir. 1966).
156
Id. at 201-03.
157
Id. at 203-04.
158
See id.
159
Id. at 205.
160
See id. at 201-02.
161
See Confiscation Cases, 74 U.S. (7 Wall.) 454 (1868); see also United States v. Nixon, 418 U.S. 683, 694 (1974);
(continued...)
153
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U.S. Attorney not to present to the grand jury the contempt citation of Environmental Protection
Agency Administration Anne Gorsuch Burford.162
While upholding the validity of 2 U.S.C. §§192 and 194, the courts have recognized that they are
criminal provisions and have reversed convictions for contempt where limitations dictated by the
language of the statute itself or the Constitution have been exceeded.163
Civil Enforcement of Subpoenas
Where the use of inherent or criminal contempt is unavailable or unwarranted, Congress may
invoke the authority of the judicial branch in an effort to enforce a congressional subpoena. Civil
enforcement entails a single house or committee of Congress filing suit in federal district court
seeking a declaration that the individual in question is legally obligated to comply with the
congressional subpoena.164 If the court finds that such an obligation exists and issues an order to
that effect, continued non-compliance may result in contempt of court—as opposed to contempt
of Congress.165 Although the Senate has existing statutory authority to pursue such an action,
there is no corresponding provision applicable to the House.166 However, the House has
previously pursued civil enforcement pursuant to an authorizing resolution.167
Civil Enforcement in the Senate
As an alternative to both the inherent contempt power of each House and the criminal contempt
statutes,168 in 1978 Congress enacted a civil enforcement procedure,169 which is applicable only to
(...continued)
Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 376 (2d Cir. 1973); Moses v. Kennedy, 219 F. Supp.
762, 765 (D.D.C. 1963), aff ‘d sub. nom., Moses v . Katzenbach, 342 F.2d 931 (D.C. Cir. 1965).
162
See Examining and Reviewing the Procedures That Were Taken by the 0ffice of the U.S. Attorney for the District of
Columbia in Their Implementation of a Contempt Citation that Was Voted by the Full House of Representatives against
the Then-Administrator of the Environmental Protection Agency, Anne Gorsuch Burford, Hearing before the House
Committee on Public Works and Transportation, 98th Cong., 1st Sess., 30 (1983) [hereinafter Burford Contempt
Prosecution Hearing]. The U.S. Attorney also suggested that it would have been inappropriate for him to institute a
criminal suit against Burford while a related civil action brought by the Justice Department against the House was
pending). See Letter, from U.S. Attorney Stanley Harris to Speaker Thomas P. O’Neill of December 27, 1982,
reprinted in, H.Rept. 98-323, 98th Cong., 1st Sess., 48-49 (1983). Of course, as a practical matter, even if the United
States Attorney is required to refer a contempt under 2 U.S.C. §§192, 194 to the grand jury, there is no apparent
requirement that the United States Attorney concur in the prosecution of any subsequent indictment. See FED. R. CRIM.
PRO. 7(c); see also United States v. Cox, 342 F.2d 167 (5th Cir. 1965).
163
See infra notes 279-325 and accompanying text.
164
See, e.g., 2 U.S.C. §288d (“When directed…the counsel shall bring a civil action…to enforce, to 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.”).
165
As the statute makes clear, a party refusing to obey the court’s order will be in contempt of the court, not of
Congress itself. 28 U.S.C. §1364(b).
166
2 U.S.C. §§288b(b), 288d, and 1365.
167
See, “Committee on the Judiciary v. Miers” infra.
168
The inadequacies of the inherent and criminal contempt procedures had been recognized by the Congress itself, the
courts, and by students of the subject. See, e.g., Representation of Congress and Congressional Interests In Court,
Hearings before the Senate Judiciary Subcommittee on Separation of Powers, 94th Cong, 2d Sess., 556-68 (1976);
United States v. Fort, 443 F.2d 670, 677-78 (D.C. Cir. 1970), cert. denied, 403 U.S. 932 (1971); Tobin v. United States,
(continued...)
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the Senate.170 The statute gives 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. Generally such a suit will be brought by the Senate Legal
Counsel, on behalf of the Senate or a Senate committee or subcommittee.171
Pursuant to the statute, the Senate may “ask a court to directly order compliance with [a]
subpoena or order, or they may merely seek a declaration concerning the validity of [the]
subpoena or order. By first seeking a declaration, [the Senate would give] the party an
opportunity to comply before actually [being] ordered to do so by a court.”172 It is solely within
the discretion of the Senate whether or not to use such a two-step enforcement process.173
Regardless of whether the Senate seeks the enforcement of, or a declaratory judgment concerning
a subpoena, the court will first review the subpoena’s validity.174 If the court finds that the
subpoena “does not meet applicable legal standards for enforcement,” it does not have
jurisdiction to enjoin the congressional proceeding. Because of the limited scope of the
jurisdictional statute and because of Speech or Debate Clause immunity for congressional
investigations,175 “when the court is petitioned solely to enforce a congressional subpoena, the
court’s jurisdiction is limited to the matter Congress brings before it, that is whether or not to aid
Congress in enforcing the subpoena.176 If the individual still refuses to comply, he may be tried by
the court in summary proceedings for contempt of court,177 with sanctions being imposed to
coerce their compliance.178
(...continued)
306 F.2d 270, 275-76 (D .C. Cir. 1962), cert. denied, 371 U.S. 902 (1962); Sky, supra note 81.
169
Ethics in Government Act of 1978, P.L. 95-521, §§703, 705, 92 Stat. 1877-80 (1978) (codified as amended at 2
U.S.C. §§288b(b) 288d, and 28 U.S.C. §1365 (2000)).
170
The conference report accompanying the legislation which established the procedure explained that the relevant
House committees had not yet considered the proposal for judicial enforcement of House subpoenas. H.Rept. 95-1756,
95th Cong., 2d Sess., 80 (1978).
171
Although the Senate or the committee may be represented by any attorney designated by the Senate, in most cases
such an action will be brought by the Senate Legal Counsel after an authorizing resolution has been adopted by the
Senate. 2 U.S.C. §288b(b) (2000). See 28 U.S.C. §1364(d) (2000). A resolution directing the Senate Legal Counsel to
bring an action to enforce a committee or subcommittee subpoena must be reported by a majority of the members
voting, a majority being present, of the full committee. The report filed by the committee must contain a statement of
(a) the procedure employed in issuing the subpoena; (b) any privileges or objections raised by the recipient of the
subpoena; (c) the extent to which the party has already complied with the subpoena; and (d) the comparative
effectiveness of the criminal and civil statutory contempt procedures and a trial at the bar of the Senate. 2 U.S.C.
§288(c) (2000).
172
S.Rept. No. 95-170, 95th Cong., 1st Sess., 89 (1977).
173
Id. at 90.
174
Id. at 4.
175
See U.S. CONST. Art. 1, §6, cl. 3.
176
S.Rept. No. 95-170, 95th Cong., 1st Sess., 94 (1977).
177
See, S.Rept. No. 95-170, 95th Cong., 1st Sess., 41, 92. It is also worth noting that the Senate has in place a standing
order, adopted in 1928, that appears to provide the authority, independent of the civil enforcement statute, for a
committee to seek a court order to enforce its subpoenas. The standing order states that
Resolved, That hereafter any committee of the Senate is hereby authorized to bring suit on behalf
of and in the name of the United States in any court of competent jurisdiction if the committee is of
the opinion that the suit is necessary to the adequate performance of the powers vested in it or the
duties imposed upon it by the Constitution, resolution of the Senate, or other law. Such suit may be
(continued...)
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Without affecting the right of the Senate to institute criminal contempt proceedings or to try an
individual for contempt at the bar of the Senate,179 this procedure gives the Senate the option of a
civil action to enforce a subpoena.180 Civil enforcement might be employed when the Senate is
more concerned with securing compliance with the subpoena or with clarifying legal issues than
with punishing the contemnor. Unlike criminal contempt, in a civil enforcement, sanctions
(imprisonment and/or a fine) can be imposed until the subpoenaed party agrees to comply thereby
creating an incentive for compliance; namely, the termination of punishment.181 Since the statute’s
enactment in 1979, the Senate has authorized the Office of Senate Legal Counsel to seek civil
enforcement of a subpoena for documents or testimony at least 6 times, the last in 1995. None has
been against executive branch officials.
The civil enforcement process is arguably more expeditious than a criminal proceeding, where a
court may more closely scrutinize congressional procedures and give greater weight to the
defendant’s constitutional rights. The civil enforcement procedure also provides an element of
flexibility, allowing the subpoenaed party to raise possible constitutional and other defenses (e.g.,
the privilege against self-incrimination, lack of compliance with congressional procedures, or an
inability to comply with the subpoena)182 without risking a criminal prosecution.
Civil enforcement, however, has limitations. Most notable is that 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
(...continued)
brought and prosecuted to final determination irrespective of whether or not the Senate is in session
at the time the suit is brought or thereafter. The committee may be represented in the suit either by
such attorneys as it may designate or by such officers of the Department of Justice as the Attorney
General may designate upon the request of the committee. No expenditures shall be made in
connection with any such suit in excess of the amount of funds available to the said committee. As
used in this resolution, the term “committee’’ means any standing or special committee of the
Senate, or any duly authorized subcommittee thereof, or the Senate members of any joint
committee.
See S. Jour. 572, 70-1, May 28, 1928. It is unclear what effect, if any, the passage of the civil enforcement procedure in
1978 has had on this Standing Order. The Standing Order appears to have never been invoked and, therefore, its
validity remains an open question.
178
28 U.S.C. §1364(b) (2000).
179
Not only do the inherent and criminal contempt procedures remain available as an alternative to the civil
enforcement mechanism, but the legislative history indicates that the civil and criminal statutes could both be employed
in the same case. “Once a committee investigation has terminated, a criminal contempt of Congress citation under 2
U.S.C. §192 might still be referred to the Justice Department if the Congress finds this appropriate. Such prosecution
for criminal contempt would present no double jeopardy problem.” S.Rept. No. 95-170, 95th Cong., 1st Sess., 95
(citations omitted); see also Hearings Before the Senate Committee on Governmental Affairs on S. 555, 95th Cong., 1st
Sess., 798-800 (1977) [hereinafter Civil Contempt Hearing].
180
For a more detailed analysis of the civil enforcement procedure and a comparison with the other options available to
the Senate when faced with a contempt, See S.Rept. No. 95-170, 95th Cong., 1st Sess., 16-21, 40-41, 88-97; see also 123
CONG. REC. 20,956-21,019 (June 27, 1977).
181
The act specifies that “an action, contempt proceeding, or sanction .... shall not abate upon adjournment sine die by
the Senate at the end of a Congress if the Senate or the committee or subcommittee ... certifies to the court that it
maintains its interest in securing the documents, answers, or testimony during such adjournment.” 28 U.S.C. §1364(b)
(2000). In the first case brought under the new procedure, the witness unsuccessfully argued that the possibility of
“indefinite incarceration” violated the due process and equal protection provisions of the Constitution, and allowed for
cruel and unusual punishment. Application of the U.S. Senate Permanent Subcommittee on Investigations, 655 F.2d
1232 (D.C. Cir.), cert. denied, 454 U.S. 1084 (1981).
182
S.Rept. No. 95-170, 95th Cong., 1st Sess., 93.
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officer or employee of the federal government acting in their official capacity.183 Enacted as part
of the Ethics in Government Act of 1978, early drafts of the civil enforcement statute did not
include an exception for federal government officers and employees acting within the scope of
their duties. It appears that the section was drafted primarily in response to the District Court’s
dismissal, for lack of jurisdiction, of an Ervin Committee’s request for a declaratory judgment
regarding the lawfulness of its subpoena of President Nixon’s tape recordings.184 Thus, one of the
purposes of the statute was to expressly confer jurisdiction upon courts to determine the validity
of congressional requests for information.
During the course of the debates regarding this legislation, the executive branch strongly opposed
conferring jurisdiction upon the federal courts to decide such sensitive issues between Congress
and the executive branch. Testifying before a subcommittee of the Senate Committee on
Governmental Operations, then-Assistant Attorney General Antonin Scalia argued 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.”185 In response, Congress
amended the proposed legislation excluding from its scope federal officers and employees acting
in their official capacity. However, as noted in a report from the House Judiciary Committee in
1988, the exclusion was to apply only in cases in which the President had directed the recipient of
the subpoena not to comply with its terms.186
Civil Enforcement in the House of Representatives
While the House of Representatives cannot pursue actions under the Senate’s civil enforcement
statute discussed above, past precedent and the decision of the U.S. District Court for the District
of Columbia in Committee on the Judiciary v. Miers suggest that the House may authorize a
committee to seek a civil enforcement action to force compliance with a subpoena.187 Prior to
Miers—which represented the first congressional attempt to seek civil enforcement of a subpoena
in federal court authorized solely by resolution of a single house—a number of threshold
questions, including whether the federal courts would have jurisdiction over such a claim,
remained unresolved.
183
28 U.S.C. §1364(a) (2000). The statutory exception was explained in the Senate’s Report as follows:
This jurisdictional statute applies to a subpoena directed to any natural person or entity acting under
color of state or local authority. By the specific terms of the jurisdictional statute, it does not apply
to a subpoena directed to an officer or employee of the Federal Government acting within his
official capacity. In the last Congress there was pending in the Committee on Government
Operations legislation directly addressing the problems associated with obtaining information from
the executive branch. (See S. 2170, “The Congressional Right to Information Act”). This exception
in the statute is not intended to be a congressional finding that the federal courts do not now have
the authority to hear a civil action to enforce a subpoena against an officer or employee of the
federal government. However, if the federal courts do not now have this authority, this statute does
not confer it.
S.Rept. No. 95-170, 95th Cong., 1st Sess., 91-92
184
See Senate Select Committee on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51 (D.D.C. 1973).
185
Executive Privilege-Secrecy in Government: Hearings Before the Subcomm. on Intergovernmental Relations of the
Senate Comm. on Government Operations, 94th Cong., 1st Sess., 117 (1975).
186
Clarifying the Investigatory Powers of the United States Congress, H.Rept. 100-1040, 100th Cong. 2d Sess., 2
(1988).
187
558 F. Supp. 2d 53 (D.D.C. 2008).
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The jurisdiction of the federal district courts, where a civil action for enforcement of a
congressional subpoena would be brought, is derived from both Article III of the Constitution and
federal statute. Article III states, in relevant part, that “[t]he judicial Power shall extend to all
Cases, in Law and Equity, arising under this Constitution, the Laws of the United States....”188
The Supreme Court has interpreted the language “arising under” broadly, essentially permitting
federal jurisdiction to be found whenever federal law “is a potentially important ingredient of a
case.”189 Conversely, the federal question jurisdiction statute, first enacted in 1875,190 while
containing almost identical language to Article III, has been interpreted by the Court to be much
narrower in scope. As the Court explained in Verlinden B.V. v. Central Bank of Nigeria:
Although the language of 1331 parallels that of the “Arising Under” Clause of Art. III, this
Court never has held that statutory “arising under” jurisdiction is identical to Art. III “arising
under” jurisdiction. Quite the contrary is true ... [T]he many limitations which have been
placed on jurisdiction under 1331 are not limitations on the constitutional power of Congress
to confer jurisdiction on the federal courts ... Art. III “arising under” jurisdiction is broader
than federal-question jurisdiction under 1331....”191
The fact that the statutory jurisdiction provided by Congress is narrower than the Constitution’s
grant of judicial power may give rise to an argument that the statutory grant of jurisdiction cannot
be used by the House should it merely adopt a resolution authorizing a subpoena enforcement
proceeding to be brought in court. Following this argument to its conclusion might suggest that
both houses of Congress must pass a law, signed by the President, which authorizes a civil
enforcement action to be brought in federal district court because a mere one-house resolution
will not suffice to provide such jurisdiction. However, the limited precedent from the Supreme
Court and other federal courts, especially the federal district court decision in Committee on the
Judiciary v. Miers, may be read to suggest that the current statutory basis is sufficient to establish
jurisdiction for a civil action of the type contemplated here if the representative of the
congressional committee is specifically authorized by a house of Congress to act.
In 1928, the Supreme Court decided Reed v. The County Commissioners of Delaware County,
Pennsylvania,192 which involved a special committee of the United States Senate charged, by
Senate resolution, with investigating the means used to influence the nomination of candidates for
the Senate.193 The special committee was authorized to “require by subpoena or otherwise the
attendance of witnesses, the production of books, papers, and documents, and to do such other
acts as may be necessary in the matter of said investigation.”194 During the course of its
investigation into the disputed election of William B. Wilson of Pennsylvania to the Senate, the
committee sought to obtain the “boxes, ballots, and other things used in connection with the
188
U.S. CONST., Art. III, §2, cl. 1.
See ERWIN CHEMERINSKY, FEDERAL JURISDICTION, 264 (3d Ed. 1999) (citing Osborn v. Bank of the United States, 22
U.S. (9 Wheat.) 738 (1824)).
190
See Act of March 3, 1875, ch. 137, 18 Stat. 470 (codified as amended at 28 U.S.C. §1331 (stating that “[t]he district
courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United
States.”).
191
Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 494-95 (1983) (internal quotation marks and citations
omitted).
192
277 U.S. 376 (1928).
193
Id. at 378 (citing S. Res 195, 69th Cong., 1st Sess. (1926)).
194
Id. at 378-79.
189
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election.”195 The County Commissioners, who were the legal custodians of said materials, refused
to provide them to the committee, thus necessitating the lawsuit. The Supreme Court, after
affirming the powers of the Senate to “obtain evidence related to matter committed to it by the
Constitution”196 and having “passed laws calculated to facilitate such investigations,”197
nevertheless held that it was without jurisdiction to decide the case. The Senate had relied on the
resolution’s phrase “such other acts as may be necessary” to justify its authority to bring such a
suit. According to the Court, however, that phrase “may not be taken to include everything that
under any circumstances might be covered by its words.”198 As a result, the Court held that “the
Senate did not intend to authorize the committee, or anticipate that there might be need, to invoke
the power of the Judicial Department. Petitioners are not ‘authorized by law to sue.’”199 The
Court in Reed made no mention of the jurisdictional statute that existed at the time. Rather, the
Court appears to have relied on the fact that the Senate did not specifically authorize the
committee to sue; therefore, absent particular language granting the power to sue in court, there
can be no basis for judicial jurisdiction over such a suit.200 Read in this manner, Reed appears to
suggest that had the Senate resolution specifically mentioned the power to sue, the Court may
have accepted jurisdiction and decided the case on its merits. Such a reading of Reed is supported
by a recent district court ruling involving the question of whether Congress authorized judicial
enforcement of Member demands for information from executive branch agencies.
In Waxman v. Thompson, a 2006 opinion of the District Court for the Central District of
California,201 the plaintiffs, all minority members of the House Government Reform Committee,
sought a court order pursuant to 5 U.S.C. §§2954 and 7211—often times referred to as the “rule
of seven”—granting them access to Department of Health and Human Services records related to
the anticipated costs of the Medicare Prescription Drug Implementation and Modernization Act of
2003.202 The court, in dismissing the case for lack of jurisdiction, addressed the argument made
by the plaintiffs that 5 U.S.C. §2954, which requires that “[a]n Executive agency, on request of
the Committee on Government Operations of the House of Representatives, or of any seven
members thereof ... shall submit any information requested of it relating to any matter within the
jurisdiction of the committee,”203 implicitly delegated to Members to right to sue to enforce their
informational demands.204 The court, in rejecting this argument, relied on the Supreme Court’s
holding in Reed v. County Commissioners.205 Specifically, the court noted that Reed’s holding
“put Congress on notice that it was necessary to make authorization to sue to enforce
investigatory demands explicit if it wished to ensure that such power existed.”206 According to the
court, like the Senate resolution at issue in Reed, because §2954 is silent with respect to civil
enforcement it stands to reason that the Congress never intended to provide the Members with the
195
Id. at 387.
Id. at 388 (citing McGrain v. Daugherty, 273 U.S. 135, 160-174 (1927)).
197
Id. (citing R.S. §§101-104, (codified as amended at 2 U.S.C. §§192, 194 (2000))).
198
Id. at 389.
199
Id.
200
It appears that the Court’s decision in Reed prompted the Senate to adopt its Standing Order.
201
Waxman v. Thompson, No. 04-3467, slip op. (C.D. Cal. July 24, 2006).
202
Id. at 2.
203
5 U.S.C. §2954 (2000) (emphasis added).
204
Waxman v. Thompson, No. 04-3467, slip op. at 21 (C.D. Cal. July 24, 2006).
205
Id. at 21, n. 42.
206
Id.
196
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power to seek civil judicial orders to enforce their document demands. According to the court in
Waxman, the holdings of Reed, Senate Select Committee and United States v. AT&T207—a case
involving the intervention by a House committee chairman into a lawsuit by the DOJ, which was
attempting to enjoin compliance with a committee subpoena by AT&T—suggest that “legislative
branch suits to enforce requests for information from the executive branch are justiciable if
authorized by one or both Houses of Congress.”208
The argument that a mere one-house resolution is not sufficient to provide jurisdiction chiefly
derives its support from the ruling in Senate Select Committee on Presidential Campaign
Activities v. Nixon,209 a 1973 decision by the U.S. District Court for the District of Columbia. In
Senate Select Committee, the court held that there was no jurisdictional statute available that
authorizes the court to hear and decide the merits of the Committee’s request for a declaratory
judgment, mandatory injunction, and writ of mandamus arising from President Nixon’s refusal to
produce tape recordings and other documents sought by the Committee pursuant to a subpoena
duces tecum.210 In reaching its conclusion, the court addressed several potential bases for
jurisdiction: 28 U.S.C. §1345, United States as a Plaintiff; 28 U.S.C. §1361, Action to Compel an
Officer of the United States to Perform His Duty; 5 U.S.C. §§701-706, the Administrative
Procedure Act; and, of particular relevance here, 28 U.S.C. §1331, the federal question
jurisdiction statute.211
Focusing on 28 U.S.C. §1331, the court noted that the statute at the time contained a minimum
“amount in controversy” requirement of “$10,000 exclusive of interest and costs.”212 The court
stated that “[t]he satisfaction of a minimum amount-in-controversy is not a technicality; it is a
requirement imposed by Congress which the courts may not dispense with at their pleasure.”213
Because the Select Committee could not establish a theory under which the amount in
controversy requirement was satisfied, the court dismissed the case for lack of subject matter
jurisdiction.214
The 2008 district court opinion in Committee on the Judiciary v. Miers made clear that the lack of
subject matter jurisdiction in Senate Select Committee was based solely on the jurisdictional
amount in controversy—which has since been repealed—215and not on any larger limit on the
reach of federal question jurisdiction.216 In Miers, the House Judiciary Committee was authorized,
by resolution, to pursue civil enforcement of subpoenas issued against former White House
207
567 F.2d 121.
Waxman v. Thompson, No. 04-3467, slip op. at 29 (C.D. Cal. July 24, 2006) (emphasis added).
209
366 F. Supp. 51 (D.D.C. 1973).
210
Id. at 61.
211
Id. at 55-61.
212
28 U.S.C. §1331 (1970).
213
Senate Select Committee, 366 F. Supp. at 59 (citing Holt v. Indiana Mfg. Co., 176 U.S. 68 (1900); United States v.
Sayward, 160 U.S. 493 (1895)) (emphasis in original).
214
Id. at 61 (stating that “[e]ach of plaintiffs’ assertions ... regarding the amount-in-controversy are legally inadequate,
and finding no possible valuation of the matter which satisfies the $10,000 minimum, the Court cannot assert
jurisdiction by virtue of §1331.”).
215
See P.L. 96-486 §2(a), 94 Stat. 2369 (1980).
216
Committee on the Judiciary v. Miers, 558 F. Supp. 2d. 53, 64 (D.D.C. 2008) (“Both sides concede, and the Court
agrees, that 28 U.S.C. §1331 provides subject matter jurisdiction over this lawsuit.”).
208
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Counsel Harriet Miers and White House Chief of Staff Joshua Bolten.217 The Miers court, without
significant discussion, succinctly stated that although the district court in Senate Select Committee
had dismissed the claim for failure to satisfy the amount in controversy requirement, “that
requirement no longer exists and there is no other impediment to invoking §1331 subject matter
jurisdiction.”218 The court expressly held that because the subpoena power at issue in the suit
“derives implicitly from Article I of the Constitution, this case arises under the Constitution for
purposes of §1331” and, therefore, qualifies for federal question jurisdiction.219
Following Miers, it appears that all that is legally required for House committees, the House
general counsel, or a House-retained private counsel to seek civil enforcement of subpoenas or
other orders is that authorization be granted by resolution of the full House.220 Absent such
authorization, it appears that the courts will not entertain civil motions of any kind on behalf of
Congress or its committees. While some may still argue that a measure passed by both houses and
signed by the President conferring jurisdiction is required, it appears that—at least with respect to
claims filed in the U.S District Court for the District of Columbia—if an authorizing resolution by
the House can be obtained, there is a likelihood that the court will find no legal impediment to
seeking civil enforcement of subpoenas or other committee orders.221
Special Investigatory Committees
There have been numerous examples of the House, by resolution, affording special investigatory
committees authority not ordinarily available to its standing committees. Such special panels have
often been vested with staff deposition authority, and given the particular circumstances, special
panels have also been vested with the authority to obtain tax information, as well as the authority
to seek international assistance in information gathering efforts abroad.222 In addition, several
special panels have been specifically granted the authority to seek judicial orders and participate
in judicial proceedings.223
217
The Miers litigation is discussed in greater detail infra.
Miers, 558 F. Supp. 2d. at 65.
219
Id. at 64. The court also determined that the committee had standing to bring the claim and that the Constitution
provided an implied cause of action necessary to authorize the suit. Id. at 66-99 (“It is the Constitution, and not any
independent cause of action, that supplies the basis for Congress’s right to invoke the [Declaratory Judgment Act]
here.”).
220
Although Miers is the only judicial opinion discussing the merits of federal court jurisdiction over a civil suit to
enforce a subpoena, it should be noted that its precedential value is limited to that which is traditionally accorded a
district court decision.
221
Relatedly, the Department of Justice has, on numerous occasions, including most recently in 1996, suggested that
committees of Congress resolve inter-branch disputes involving the enforcement of subpoenas by civil proceeding in
federal court. See, e.g., H.Rept. 104-598, 104th Cong., 2d Sess., 63 (1996) (additional views of Hon. William F.
Clinger, Jr.) (stating that “I am astonished at hearing this recommendation by a Democrat President when the
contemnor is a Democrat after knowing that the concept of a civil remedy has been so resoundingly rejected by
previous Democrat Congresses when the contemnor was a Republican.”); 10 Op. Off. Legal Counsel, 68, 87-89 (1986)
(suggesting that “the courts may be willing to entertain a civil suit brought by the House to avoid any question about
the possible applicability of the criminal contempt provisions of [2 U.S.C.] §§192 and 194.”); 8 Op. Off. Legal
Counsel, 101, 139, n.40 (1984) (stating that “[t]he use of criminal contempt is especially inappropriate ... because
Congress has the clearly available alternative of civil enforcement proceedings.”).
222
See supra note 23.
223
Id.
218
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For example, in 1987, the House authorized the creation of a select committee to investigate the
covert arms transactions with Iran (Iran-Contra). As part of this resolution, the House provided
the following authorization:
(3) The select committee is authorized ... to require by subpoena or otherwise the attendance
and testimony of such witnesses ... as it deems necessary, including all intelligence materials
however classified, White House materials, ... and to obtain evidence in other appropriate
countries with the cooperation of their governments. ... (8) The select committee shall be
authorized to respond to any judicial or other process, or to make any applications to court,
upon consultation with the Speaker consistent with [House] rule L.224
The combination of broad subpoena authority that expressly encompassed the White House, and
the ability to make “any applications to court,” arguably suggests that the House contemplated the
possibility that a civil suit seeking enforcement of a subpoena against a White House official was
possible. By virtue of the resolution’s language, it appears reasonable to conclude that the House
decided to leave the decision in the hands of the select committee, consistent with House Rule L
(now House Rule VIII governing subpoenas).225 It may be noted, then, that while the House select
committee did not attempt to seek judicial enforcement of any of its subpoenas, the authorization
resolution did not preclude the possibility.
Among the more prominent attempts at utilizing the authority to make applications in court
granted by a house of Congress to a select committee occurred during the investigation into the
Iran-Contra affair. In 1987, the Senate Select Committee on Secret Military Assistance to Iran and
the Nicaraguan Opposition issued an order requiring that former Major Richard V. Secord execute
a consent directive authorizing the release of his offshore bank records and accounts to the
committee.226 When Mr. Secord refused to sign the consent directive, the committee sought to
obtain a court order directing him to comply.227 While the committee did not prevail in the Secord
litigation, the matter was not disposed of on jurisdictional grounds. Specifically, the district court
noted its jurisdiction pursuant to 28 U.S.C. §1364, as Mr. Secord was a private citizen. Moreover,
there is no mention or indication of any challenge to the committee’s ability to seek such an order.
Rather, the case was decided on Fifth Amendment grounds, with the court holding that there was
a testimonial aspect to requiring the signing of the consent directive.228 Thus, the court concluded
that the committee’s order was a violation of Mr. Secord’s Fifth Amendment right against selfincrimination.229
224
See H.Res. 12, 100th Cong., 1st Sess., §§3, 8 (1987) (emphasis added).
225
This resolution was initially added to the House Rules as Rule L by the 97th Congress. See H.Res. 5, 97th Cong.
(1981). The 106th Congress re-codified the rules and this provision became House Rule VIII, which is where it remains
today as amended. See H.Res. 5, 106th Cong. (1999).
226
Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition v. Secord, 664
F.Supp. 562, 563 (D.D.C. 1987).
227
Id.
228
Id. at 564-65.
229
Id. at 566. The ruling was not appealed because of the time strictures imposed on the House and Senate Select
Committee’s inquiry. It may be noted that in 1988 the Supreme Court adopted the Senate’s argument in a different
case, holding that such a directive is not testimonial in nature. See Doe v. United States, 487 U.S. 201 (1988).
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Committee Intervention in Subpoena Related Litigation
Although, as indicated, prior to the Miers dispute there have been no previous attempts by a
House of Congress to seek civil enforcement of subpoenas in federal court authorized solely by
resolution of a single House,230 there have been situations that appear to be closely analogous. On
several occasions the House of Representatives has authorized, via House Resolution, the
intervention by counsel representing a House Committee into civil litigation involving
congressional subpoenas.
In June of 1976, subpoenas were issued to the American Telephone and Telegraph Company
(AT&T) by the Subcommittee on Oversight and Investigations of the House Committee on
Interstate and Foreign Commerce. The Subcommittee was seeking copies of “all national security
request letters sent to AT&T and its subsidiaries by the FBI as well as records of such taps prior to
the time when the practice of sending such letters was initiated.”231 Before AT&T could comply
with the request, the DOJ and the Subcommittee’s chairman, Representative John Moss, entered
into negotiations seeking to reach an alternate agreement which would prevent AT&T from
having to turn over all its records.232 When these negotiations broke down, the DOJ sought an
injunction in the District Court for the District of Columbia prohibiting AT&T from complying
with the Subcommittee’s subpoenas.
The House of Representatives responded to the litigation by authorizing Representative Moss to
intervene in the suit on behalf of the Committee on Interstate and Foreign Commerce and the
House of Representatives.233 Specifically, the authorization for intervention was accomplished by
House Resolution, which provided that Chairman Moss was to represent the Committee and the
full House “to secure information relating to the privacy of telephone communications now in the
possession of [AT&T] for the use of the Committee and the full House.”234 In addition, the
resolution authorized Chairman Moss to hire a special counsel, use not more than $50,000 from
the contingent fund of the Committee to cover expenses, and to report to the full House on
matters related as soon as practicable.235 The resolution was adopted by the House by a vote of
180-108 on August 26, 1976.236
Chairman Moss’s intervention into the proceedings was noted by the district court, and does not
appear to have been contested by either AT&T or the DOJ.237 Chairman Moss remained an
intervener pursuant to the House Resolution through the district court proceeding and two appeals
230
The recent litigation filed during the 110th Congress by the House Judiciary Committee represents the first such
attempt at civil enforcement. See infra notes 405-416 and accompanying text.
231
United States v. American Telephone & Telegraph, 551 F.2d 384, 385 (D.C. Cir. 1976).
232
Id. at 386. The precise details of the delicate negotiations between the DOJ and the Subcommittee are explained by
the court, see id. at 386-88, and, therefore, will not be recounted here.
233
See H.Res. 1420, 94th Cong. 2d Sess. (1976); see also H.Rept. 94-1422, 94th Cong. 2d Sess. (1976).
234
Id.
235
Id.
236
See 122 CONG. REC. 27,865-866 (August 26, 1976).
237
See United States v. American Telephone & Telegraph, 419 F.Supp. 454, 458 (stating that “[t]he effect of any
injunction entered by this Court enjoining the release of materials by AT&T to the Subcommittee would have the same
effect as if this Court were to quash the Subcommittee’s subpoena. In this sense the action is one against the power of
the Subcommittee and should be treated as such, assuming that Representative Moss has authority to speak for the
Subcommittee.”).
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to the Court of Appeals for the District of Columbia Circuit until an agreement was reached with
respect to the disclosure of the documents sought.
A second intervention authorization, involving litigation between Ashland Oil and the Federal
Trade Commission (FTC), also occurred in 1976. This case arose when Ashland Oil sought to
enjoin the FTC from transferring its information to the Subcommittee on Oversight and
Investigations of the Committee on Interstate and Foreign Commerce at the request of
Subcommittee Chairman Moss. When Ashland Oil obtained a temporary restraining order, the
subcommittee promptly authorized a subpoena for the documents and Chairman Moss filed a
resolution for authorization from the House to allow him to intervene with special counsel in the
suit that Ashland Oil had filed seeking to enjoin the FTC from transferring the documents to the
subcommittee.238 The district court granted Chairman Moss’s motion to intervene and ultimately
refused to grant the injunction.239 The Court of Appeals affirmed on the grounds that “no
substantial showing was made that the materials in the possession of the FTC will necessarily be
‘made public’ if turned over to Congress.”240
While AT&T and Ashland Oil represent affirmative authorizations for intervention by a house of
Congress, In Re Beef Industry Antitrust Litigation,241 provides an example of what may occur
should a house of Congress not provide express authorization to be represented in court. In In Re
Beef, the chairmen of two subcommittees of the House of Representatives242 sought to intervene
in a pending antitrust dispute for the purpose of obtaining access to documents subpoenaed by
subcommittees from a party to the litigation. The subpoenaed documents had been obtained
through litigation discovery and were thus subject to a standing court protective order. The
district court refused to modify its protective order allowing the party to comply with the
subpoena.243 The subcommittee chairmen appealed to the United States Court of Appeals for the
Fifth Circuit.
On appeal, the Fifth Circuit entertained a motion to dismiss by one of the plaintiffs on the
grounds that the chairmen had not obtained authorization from the full House of Representatives
before filing their initial motion before the district court. The plaintiffs relied on what was then
Rule XI, cl. 2(m)(2)(B) of the Rules of the House of Representatives, which provided that
“[c]ompliance with any subpoena [sic] issued by a committee or subcommittee ... may be
enforced only as authorized or directed by the House.”244 The committee chairmen responded by
arguing that the rule was not applicable as they were not seeking to enforce their subpoenas, but
rather were seeking a modification of the district court’s protective order.245 Therefore, according
238
See generally, Ashland Oil, Inc. v. FTC, 548 F.2d 977 (D.C. Cir. 1976); see also H.Res. 899, 94th Cong., 1st Sess.
(1975); 121 CONG. REC. 41,707 (1976).
239
Ashland Oil, Inc. v. FTC, 409 F.Supp. 297, 301 (D.D.C. 1976).
240
Ashland Oil, 548 F.2d at 979.
241
589 F.2d 786 (5th Cir. 1979).
242
The Subcommittee on Oversight and Investigations of the Committee on Interstate and Foreign Commerce, and the
Subcommittee on SBA and SBIC Authority and General Small Business Problems of the Committee on Small
Business. See id. at 788.
243
See In re Beef Industry Antitrust Litigation, 457 F.Supp. 210, 212 (C.D. Tex. 1978) (stating that “the persons whom
the Subcommittees have subpoenaed would not have possession of the subpoenaed documents but for the discovery
rules of the Federal Courts. Congress by subpoenaing these documents is interfering with the processes of a Federal
Court in an individual case.”).
244
In Re Beef, 589 F.2d at 789.
245
Id.
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to the chairmen, they did not require authorization from the full House of Representatives to
appear in court.246
The Fifth Circuit rejected the chairmen’s arguments, noting specifically that the House Rules
“require[] House authorization not only for direct enforcement of a subpoena but also in any
instance when a House committee seeks to institute or to intervene in litigation and, of course, to
appeal from a court decision, particularly when the purpose is, as here, to obtain the effectuation
of a subpoena.”247 The court also extensively relied on the Ashland Oil precedent noting that
similar to this case, the chairman in Ashland Oil was not seeking to enforce a subpoena, rather
merely attempting to prevent an injunction from being issued. 248 The failure of the chairmen to
obtain an authorization resolution from the full House in this case necessitated the dismissal of
their appeal without any decision on the merits.249
Implementation of a Contempt Resolution or a
Civil Enforcement Action Against an
Executive Branch Official
Although the DOJ appears to have acknowledged that properly authorized procedures for seeking
civil enforcement provide the preferred method of enforcing a subpoena directed against an
executive branch official,250 the DOJ has consistently 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 procedures251 against an executive branch official acting on
instructions by the President to assert executive privilege in response to a congressional
subpoena. Under such circumstances, the Attorney General has previously directed the U.S.
Attorney to refrain from pursuing a criminal contempt prosecution under 2 U.S.C. §§192, 194.252
This view is most fully articulated in two opinions by the DOJ’s Office of Legal Counsel (OLC)
from the mid-1980s,253 and further evidenced by actions taken by the DOJ in the Burford and
246
Id.
Id. at 790-91.
248
Id. at 790.
249
Id. at 791.
250
See, 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) [hereinafter Olson Memo] (“Congress could obtain a judicial
resolution of the underlying privilege claim and vindicate its asserted right to obtain any documents by a civil action for
enforcement of a congressional subpoena.”); see also Response to Congressional Requests for Information Regarding
Decisions Made Under the Independent Counsel Act, 10 Op. Off. Legal Counsel 68 (1986) [hereinafter Cooper Memo]
(“although the civil enforcement route has not been tried by the House, it would appear to be viable option.”);
Committee on the Judiciary v. Miers, 558 F. Supp.2d 53, 76 (D.D.C. July 31, 2008)(“OLC rather emphatically
concluded that a civil action would be the least controversial way for Congress to vindicate its investigative
authority.”). The DOJ may, however, continue to argue that the federal courts lack jurisdiction to hear a civil
enforcement case when the suit is authorized solely by a House resolution.
251
2 U.S.C. §§192, 194.
252
Miers, 558 F. Supp. 2d at 64 (“The Attorney General then directed the U.S. Attorney not to proceed against Ms.
Miers and Mr. Bolten.”).
253
See Olson Memo, supra note 249; Cooper Memo, supra note 249.
247
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Miers disputes, discussed below. 254 As a result, when an executive branch official is invoking
executive privilege at the behest of the President, the criminal contempt provision may prove
ineffective, forcing Congress to rely on other avenues to enforce subpoenas, including civil
enforcement through the federal courts.
The DOJ’s early legal analyses were prompted by the outcome of an investigation by two House
committees into the Environmental Protection Agency’s (EPA) implementation of provisions of
the Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(Superfund). Subpoenas were issued by both committees seeking documents contained in the
EPA’s litigation files.255 At the direction of President Reagan, EPA Administrator Burford claimed
executive privilege over the documents and refused to disclose them to the committees on the
grounds that they were “enforcement sensitive.”256 A subcommittee, and ultimately the full House
Committee on Public Works and Transportation, approved a criminal contempt of Congress
citation and forwarded it to the full House for its consideration.257 On December 16, 1982, the full
House of Representatives voted, 259-105, to adopt the contempt citation.258 Before the Speaker of
the House could transmit the citation to the United States Attorney for the District of Columbia
for presentation to a grand jury, the DOJ filed a lawsuit seeking to enjoin the transmission of the
citation and to have the House’s action declared unconstitutional as an intrusion into the
President’s authority to withhold such information from the Congress. According to the DOJ, the
House’s action imposed an “unwarranted burden on executive privilege” and “interferes with the
executive’s ability to carry out the laws.”259
The District Court for the District of Columbia dismissed the DOJ’s suit on the grounds that
judicial intervention in executive-legislative disputes “should be delayed until all possibilities for
settlement have been exhausted.”260 In addition, the court noted that ultimate judicial resolution of
the validity of the President’s claim of executive privilege could only occur during the course of
the trial for contempt of Congress.261 The DOJ did not appeal the court’s ruling, opting instead to
resume negotiations, which resulted in full disclosure and release of the all the subpoenaed
documents to the Congress.262 Throughout the litigation and subsequent negotiations, however,
the U.S. Attorney refused to present the contempt citation to a grand jury for its consideration on
254
See e.g., Memorandum for the Counsel to the President, Fred. F. Fielding, from Stephen G. Bradbury, Principal
Deputy Attorney General, Office of Legal Counsel, Immunity of Former Counsel to the President from Compelled
Congressional Testimony, July 10, 2007; Letter to George T. Manning, Counsel for Ms. Harriet Miers, from Fred F.
Fielding, Counsel to the President, July 10, 2007 (directing Ms. Miers not to appear before the House Judiciary
Committee in response to a subpoena); Letter to House Judiciary Committee Chairman John Conyers, Jr. from George
T. Manning, Counsel for Ms. Harriet Miers, July 17, 2007 (explaining legal basis for Ms. Miers’s refusal to appear).
255
See generally, Congressional Proceedings Against Anne M. Gorsuch, Administrator, U.S. Environmental Protection
Agency, for Withholding Subpoenaed Documents Relating to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, H.Rept. 97-968, 97th Cong. (1982) [hereinafter Gorsuch Contempt Report].
256
Id. at 42-43.
257
Id. at 57, 70.
258
128 CONG. REC. 31,776 (1982).
259
See generally, United States v. United States House of Representatives, 556 F. Supp. 150 (D.D.C. 1983).
260
Id. at 152.
261
Id. (stating that “[c]onstitutional claims and other objections to congressional investigations may be raised as
defenses in a criminal prosecution”).
262
See LOUIS FISHER, THE POLITICS OF EXECUTIVE PRIVILEGE, 126-130 (Carolina Academic Press., 2004) [hereinafter
Fisher].
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the grounds that, notwithstanding the mandatory language of the criminal contempt statute,263 he
had discretion with respect to whether to make the presentation. The issue was never resolved
because the ultimate settlement agreement included a withdrawal of the House’s contempt
citation.
In its initial 1984 opinion, OLC revisited the statutory, legal, and constitutional issues that were
not judicially resolved by the Superfund dispute. The opinion concluded that, as a function of
prosecutorial discretion, a U.S. Attorney is not required to refer a contempt citation to a grand
jury or otherwise to prosecute an executive branch official who is carrying out the President’s
direction to assert executive privilege.264 Next, the OLC opinion determined that a review of the
legislative history of the 1857 enactment of the criminal contempt statute and its subsequent
implementation demonstrates that Congress did not intend the statute to apply to executive
officials who carry out a presidential directive to assert executive privilege.265 Finally, as a matter
of constitutional law, the opinion concludes that simply the threat of criminal contempt would
unduly chill the President’s ability to effectively protect presumptively privileged executive
branch deliberations.266 According to the OLC opinion:
The President’s exercise of this privilege, particularly when based upon the written legal
advice of the Attorney General, is presumptively valid. Because many of the documents over
which the President may wish to assert a privilege are in the custody of a department head, a
claim of privilege over those documents can be perfected only with the assistance of that
official. If one House of Congress could make it a crime simply to assert the President’s
presumptively valid claim, even if a court subsequently were to agree that the privilege claim
were valid, the exercise of the privilege would be so burdened as to be nullified. Because
Congress has other methods available to test the validity of a privilege claim and to obtain
the documents that it seeks, even the threat of a criminal prosecution for asserting the claim
is an unreasonable, unwarranted, and therefore intolerable burden on the exercise by the
President of his functions under the Constitution.267
The 1984 opinion focuses almost exclusively on the criminal contempt statute, as that was the
authority invoked by Congress in the Superfund dispute. In a brief footnote, however, the opinion
contains a discussion of Congress’s inherent contempt power, summarily concluding that the
same rationale that makes the criminal contempt statute inapplicable and unconstitutional as
applied to executive branch officials apply to the inherent contempt authority:
We believe that this same conclusion would apply to any attempt by Congress to utilize its
inherent “civil” contempt powers to arrest, bring to trial, and punish an executive official
who asserted a Presidential claim of executive privilege. The legislative history of the
criminal contempt statute indicates that the reach of the statute was intended to be
coextensive with Congress’ inherent civil contempt powers (except with respect to the
penalties imposed). Therefore, the same reasoning that suggests that the statute could not
263
2 U.S.C. §194 (1982) (stating that “[the Speaker of the House or President of the Senate] shall so certify, ... to the
appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.”)
(emphasis added).
264
See Olson Memo, supra note 249 at 102, 114-15, & 118-28.
265
Id. at 129-134 (stating that “[t]he Executive’s exclusive authority to prosecute violations of the law gives rise to the
corollary that neither the Judicial nor Legislative Branches may directly interfere with the prosecutorial discretion of
the Executive by directing the Executive Branch to prosecute particular individuals.”).
266
See id. at 102, 135-142.
267
Id. at 102.
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constitutionally be applied against a Presidential assertion of privilege applies to Congress’
inherent contempt powers as well.268
The 1986 OLC opinion reiterates the 1984 reasoning adding the observation that the power had
not been used since 1935 (at that time over 50 years), and that “it seems unlikely that Congress
would dispatch the Sergeant-at-Arms to arrest and imprison an executive branch official who
claimed executive privilege.”269 The 1986 OLC opinion also suggests that then current Supreme
Court opinions indicated that it was “more wary of Congress exercising judicial authority” and,
therefore, might revisit the question of the continued constitutional validity of the inherent
contempt power.270
Factual, legal, and constitutional aspects of these OLC opinions are open to question and
potentially limitations. For example, with respect to the argument that a U.S. Attorney cannot be
statutorily required to submit a contempt citation to a grand jury, despite the plain language of the
law, such a statement appears to be analogous to a grant of so-called “pocket immunity” by the
President to anyone who asserts executive privilege on his behalf.271 The courts have concluded
that the government, or in this case the President, may informally grant immunity from
prosecution, which is in the nature of a contract and, therefore, its effect is strongly influenced by
contract law principles.272 Moreover, principles of due process require that the government adhere
to the terms of any immunity agreement it makes.273 It appears that a President has implicitly
immunized executive branch officials from violations of congressional enactments at least once—
in 1996, during a dispute over the constitutionality of a statute that made it a requirement for all
public printing to be done by the Government Printing Office.274 At the time, the DOJ, in an
opinion from OLC, argued that the requirement was unconstitutional on its face, directed the
executive branch departments not to comply with the statute as passed by Congress, and noted
that executive branch officials who are involved in making decisions that violate the statute face
little to no litigation risk, including, it appears, no risk of prosecution under the Anti-Deficiency
Act,275 for which the DOJ is solely responsible.276 Such a claim of immunization in the contempt
context, whether express or implicit, would raise significant constitutional questions. While it is
268
Id. at 140, n. 42 (internal citation omitted).
Cooper Memo, supra note 249 at 86.
270
Id. (citing INS v. Chadha, 462 U.S. 919, 962-66 (1983); Buckley v. Valeo, 424 U.S. 1 (1976); United States v.
Brown, 381 U.S. 437 (1965); United States v. Levett, 328 U.S. 303, 317 (1940)). It is important to note that the 1984
OLC opinion pre-dates the Supreme Court’s decisions in Morrison v. Olson, 487 U.S. 654 (1988) and Mistretta v.
United States, 488 U.S. 361 (1989), both of which appear to undercut portions of the OLC’s reasoning.
271
See, e.g., United States v. Hogan, 862 F.2d 386, 388 (1st Cir.1988); United States v. Brown, 801 F.2d 352, 354 (8th
Cir.1986); United States v. Harvey, 791 F.2d 294, 300-01 (4th Cir.1986); United States v. Irvine, 756 F.2d 708, 710-11
(9th Cir.1985).
272
Id.
273
See Mabry v. Johnson, 467 U.S. 504, 509 (1984); Santobello v. New York, 404 U.S. 257, 262 (1971) (“when a plea
rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be fulfilled”); United States v. (Jerry) Harvey, 869 F.2d 1439, 144344 (11th Cir.1989); Innes v. Dalsheim, 864 F.2d 974, 978 (2d Cir.1988), cert. denied, 493 U.S. 809 (1989); In re Arnett,
804 F.2d 1200, 1202-03 (11th Cir.1986).
274
See Legislative Branch Appropriations Act of 1993, P.L. 102-392 §207(a), 106 Stat. 1703, 1719 (1992) (codified at
44 U.S.C. §501 note); see also Legislative Branch Appropriations Act of 1995, P.L. 103-283 §207(2), 108 Stat. 1423,
1440 (1994) (amending Section 207(a) of the 1993 Act).
275
See 31 U.S.C. §1341 (2000).
276
See Memorandum for Emily C. Hewitt, General Counsel, GSA, Involvement of the Government Printing Office in
Executive Branch Printing and Duplicating, May 31, 1996.
269
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true that the President can immunize persons from criminal prosecution, it does not appear that he
has authority to immunize a witness from a congressional inherent contempt proceeding.
Arguably, an inherent contempt proceeding takes place wholly outside the criminal code, is not
subject to executive execution of the laws and prosecutorial discretion, and thus, appears
completely beyond the reach of the executive branch. Furthermore, as previously indicated,
inherent contempt, unlike criminal contempt, is not intended to punish, but rather to coerce
compliance with a congressional directive.277 Thus, a finding of inherent contempt against an
executive branch official does not appear to be subject to the President’s Pardon power278—as an
inherent contempt arguably is not an “offense against the United States,” but rather is an offense
against a house of Congress. Likewise, it appears that the same arguments would be applicable to
a potential civil enforcement by Congress.
The assertion that the legislative history of the 1857 statute establishing the criminal contempt
process demonstrates that it was not intended to be used against executive branch official is not
supported by the historical record. The floor debates leading to the enactment of the statute make
it clear that the legislation was intended as an alternative to, not a substitute for, the inherent
contempt authority. This understanding has been reflected in numerous Supreme Court opinions
upholding the use of the criminal contempt statute.279 A close review of the floor debate indicates
that Representative H. Marshall expressly pointed out that the broad language of the bill
“proposes to punish equally the Cabinet officer and the culprit who may have insulted the dignity
of this House by an attempt to corrupt a Representative of the people.”280
Moreover, language from the floor debate indicates that Congress was aware of the effect that this
language would have on the ability of persons to claim privileges before Congress. Specifically,
the sponsor of the bill, Representative Orr, was asked about the potential instances in which the
proposed legislation might interfere with recognized common law and other governmental
privileges, such as the attorney-client privilege,281 to support an investigation such as one that
probed “the propriety of a secret service fund to be used upon the discretion of the executive
department,”282 or to support inquires about “diplomatic matters.”283 Representative Orr
responded that the House has and would continue to follow the practice of the British Parliament,
which “does not exempt a witness from testifying upon any such ground. He is not excused from
testifying there. That is the common law of Parliament.”284 Later in the same debate, a proposed
amendment to expressly recognize the attorney-client privilege in the statute was overwhelmingly
defeated.285
277
See supra pages 12-14.
U.S. CONST. Art. II, §2 (stating that the President “shall have the Power to grant Reprieves and Pardons for Offenses
Against the United States.”).
279
See, e.g., Journey v. McCracken, 294 U.S. 125 (1935); McGrain v. Daugherty, 273 U.S. 135 (1927); In re
Chapman, 166 U.S. 661 (1897).
280
42 CONG. GLOBE 429 (1857).
281
Id. at 431 (statement of Rep. Dunn) (asking that “if the committee considered, and if they did so consider, what is
their judgment in reference to the effect of this bill upon communications by the universal law regarded as privileged,
to attorneys and counselors at law? Are they required to divulge things communicated to them in confidence, and for
wise and high purposes of public purpose by their clients?”).
282
Id.
283
Id.
284
Id. (statement of Rep. Orr).
285
Id. at 441-43.
278
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With respect to the secret service fund, Representative Orr explained:
this House has already exercised the power and authority of forcing a disclosure as to what
disposition had been made for the secret-service fund. And it is right and proper that is
should be so. Under our Government—under our system of laws—under our Constitution—I
should protest against the use of any money by an executive authority, where the House had
not the right to know how every dollar had been expended, and for what purpose.286
Representative Orr’s reference was to a contentious investigation in 1846, regarding charges that
Daniel Webster, while Secretary of State, had improperly disbursed monies from a secret
contingency fund used by the President for clandestine foreign operations. The charges led the
committee to issue subpoenas to former Presidents John Quincy Adams and John Tyler. President
Polk sent the House a list of the amounts in the contingent fund for the relevant period, which
was prior to his term, but refused to furnish documentation of the uses that had been made of the
expenditures on the grounds that a sitting President should not publically reveal the confidences
of his predecessors.287 President Polk’s refusal to provide the information was mooted by the
actions of the two investigatory committees established by the House. Former President Tyler
testified288 and former President Adams filed a deposition289 detailing the uses of the fund during
their Administrations. In addition, President Polk’s Secretary of State, James Buchanan, was
subpoenaed and testified.290 Ultimately, Mr. Webster was found innocent of any wrongdoing.
From these references, it appears that the House was, in 1857, sensitive to and cognizant of its
oversight and investigative prerogatives vis-à-vis the executive branch. It therefore appears
arguable that in the context of the debate, the contempt statute was not intended to preclude the
House’s ability to engage in oversight of the executive branch.
Finally, it should be noted that past practice suggests that Congress has taken the position that it
has authority to cite executive branch officials for contempt. Since 1980, Congress has cited a
number of executive branch officials or former executive branch officials for contempt of
Congress. The House of Representatives has approved contempt citations for two former officials
(former EPA Assistant Administrator Rita M. Lavelle and former White House Counsel Harriet
Miers), and two current291 officials (EPA Administrator Anne Gorsuch Burford and White House
Chief of Staff Joshua Bolten). Additionally, committees and subcommittees of the House of
Representatives have also voted contempt citations against Secretary of Energy Charles Duncan
(1980); Secretary of Energy James B. Edwards (1981); Secretary of the Interior James Watt
(1982); Attorney General William French Smith (1983); White House Counsel John M. Quinn
(1996); Attorney General Janet Reno (1998); and former White House Advisor Karl Rove
(2008).292 Senate committees and subcommittees have voted contempt citations against William
French Smith (1984); Joshua Bolten (2007); and White House Advisor Karl Rove (2007). (For a
summary of House and Senate action on contempt resolutions see Appendix.)
286
Id. at 431.
See RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE, 949
(4th ed. 2007) (citing 16 CONG. GLOBE 698 (April 20, 1846)).
288
Id. (citing H.Rept. 684, 29th Cong., 1st Sess., 8-11 (1846)).
289
Id. (citing H.Rept. 686, 29th Cong., 1st Sess., 22-25 (1846)).
290
Id. (citing H.Rept. 686, 29th Cong., 1st Sess., 4-7 (1846)).
291
“Current” as of the time of the contempt citation.
292
Notably, House committees have also approved contempt citations against Secretary of State Henry Kissinger
(1975); Secretary of Commerce Rogers C. B. Morton (1975); and Secretary of Health, Education, and Welfare Joseph
A. Califano, Jr. (1978).
287
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Committee on the Judiciary v. Miers
The DOJ’s position on the use of criminal contempt against an executive branch official invoking
executive privilege was put into practical effect during a dispute over an investigation into the
resignations of nine United States Attorneys by the House Judiciary Committee and its
Subcommittee on Commercial and Administrative Law (“the Committee”).293 This investigation
resulted in the first legal confrontation over Congress’s contempt authority since the early 1980s
and the first civil lawsuit filed by a house of Congress in an attempt to affirm its information
gathering prerogatives. The actions and approach taken by both branches throughout the dispute;
the Attorney General’s unwillingness to prosecute a former presidential advisor for contempt of
Congress; and the resulting district court decision remain uniquely informative in delineating the
ability of Congress to issue and effectively enforce its own subpoenas against executive branch
officials.
After an extensive investigation into whether political motives and White House involvement had
prompted the requested resignations of the U.S. Attorneys—including numerous informal
communications and requests for information, witness interviews, and several congressional
hearings—the Committee ultimately sought information relating to the resignations directly from
a number of President Bush’s closest White House legal advisors.294 Following several months of
unfruitful negotiations and a number of attempts to obtain the information sought voluntarily,295
on March 21, 2007, the Committee authorized subpoenas for Ms. Harriet Miers, the former White
House Counsel and Mr. Joshua Bolten, the White House Chief of Staff and custodian of White
House records.296 The Miers subpoena was for both documents and testimony relating to her role,
if any, in the resignations, while the Bolten subpoena was only for White House records and
documents related to the resignations.297 In an effort to obtain a negotiated solution, Chairman
Conyers did not issue the authorized subpoenas until June 13, 2007.298
In response to the Committee’s action, the White House, via its Counsel Fred F. Fielding, notified
the Committee that it did not intend to comply with the Bolten subpoena on the grounds of
executive privilege. With respect to the subpoena directed to Ms. Miers, who had been living in
Texas since her resignation as White House Counsel in January 2007, Mr. Fielding first sent a
letter to Miers’s private attorney containing notice of the President’s assertion of executive
privilege over information related to the investigation, and suggested that Ms. Miers refrain from
producing any documents pursuant to her subpoena.299 Several days later, Mr. Fielding sent a
second letter to Miers’s attorney indicating that she was “not to provide ... testimony” pursuant to
the subpoena on the grounds that any such testimony would also be covered by the President’s
293
For additional information on the U.S. Attorneys dispute See H.Rept. 110-423, 110th Cong. (2007).
Id.; H. Jud. Comm. Mot. Summ. J. at 11 (copy on file with authors).
295
Following the initial request by the Committee for testimony and documents, Counsel to the President Fred Fielding
responded with an offer to make certain officials and documents available, but only with respect to external White
House communications, and only under the condition that any testimony be taken in private, “without the need for an
oath, transcript, subsequent testimony, or the subsequent issuance of subpoenas.” Letter from Fred Fielding, Counsel to
the President to John Conyers, Chairman, House Committee on the Judiciary, et. al. (March 20, 2007); Miers, 558 F.
Supp.2d at 59-60.
296
Miers, 558 F. Supp. 2d. at 60.
297
Id.
298
Id. at 61.
299
See, H. Jud. Comm. Mot. Summ. J. at 12.
294
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assertion of executive privilege.300 Subsequently, Miers’s attorney notified the Committee that, as
a result of the President’s claim of executive privilege, Ms. Miers would not appear at the
scheduled hearing.301
Although negotiations between the Committee and the White House continued in an attempt to
reach a compromise over the disclosure of documents and the requested testimony, by July 25,
2007, the sides had apparently reached an impasse, and the Committee voted to recommend that
Ms. Miers and Mr. Bolten be cited for contempt of Congress for failure to comply with the duly
issued subpoenas.302 The resolutions were forwarded to the House of Representatives, which
voted to cite Ms. Miers and Mr. Bolten for contempt of Congress on February 14, 2008.303 The
House approved Resolution 979, which directed the Speaker to forward the contempt citation to
the U.S. Attorney for the District of Columbia for action against Ms. Miers and Mr. Bolten; and
Resolution 980, which expressly authorized Chairman Conyers to initiate a civil lawsuit in federal
court to enforce the subpoenas in the event that the Department of Justice did not pursue the
criminal contempt actions.304
On February 28, 2008, pursuant to 2 U.S.C. §194, the Speaker of the House certified the report to
the U.S. Attorney for the District of Columbia for presentation to the grand jury.305 The next day,
however, the Attorney General sent a letter to the Speaker, stating that the Department of Justice
would “not bring the congressional contempt citations before a grand jury or take any other action
to prosecute Mr. Bolten or Ms. Miers.”306 Consistent with the positions asserted in the previously
discussed OLC opinions, it appeared that the DOJ would not proceed with the prosecution of a
White House official for criminal contempt of Congress where that official had invoked executive
privilege at the behest of the President. With any criminal contempt prosecution under 2 U.S.C.
§§192 and194 unavailable, on March 10, 2008, pursuant to the resolution adopted by the House
of Representatives, the Committee filed a civil suit in the U.S. District Court for the District of
Columbia “seek[ing] [a] declaratory judgment[]” and other “appropriate relief, including
injunctive relief” to enforce the Committee’s subpoenas.307 It is important to note that the case
filed by the Committee was limited only to whether Miers and Bolten could be forced to comply
with the issued subpoenas, not whether the House had the authority to hold either of the officials
in contempt of Congress.308
In Committee on the Judiciary v. Miers, the Bush Administration adopted the position that senior
presidential advisors, like Ms. Miers,309 were absolutely immune from compelled testimony
300
Id.
Id.
302
See H.Rept. 110-423, 60 (2007).
303
See H.Res. 979, H.Res. 980, H.Res. 982, 110th Cong. (2008).
304
The House actually passed H.Res. 982, which incorporated the terms of H.Res. 979 and H.Res. 980.
305
H. Jud. Comm. Mot. Summ. J. at 13.
306
Id. at 13-14.
307
Id.
308
Miers, 558 F. Supp. 2d. at 55 (“The Committee…asks the Court to declare that…Miers must comply with a
subpoena and appear before the Committee to testify…and that current White House Chief of Staff Joshua Bolten must
produce a privilege log in response to a congressional subpoena.”).
309
The Administration did not claim that absolute immunity extended to a congressional subpoenas for documents, as
opposed to a subpoenas for testimony. However, the Administration did argue that the individual documents responsive
to Mr. Bolten’s subpoena were protected by executive privilege. Id. at 99.
301
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before Congress when asserting executive privilege at the direction of the President.310 As such,
Ms. Miers could not be required to present herself before the Committee.311 The Administration’s
absolute immunity argument rested primarily on the assertion that a senior presidential advisor, as
the President’s “alter ego,” should be accorded the same constitutional immunities enjoyed by the
President, just as congressional aides were accorded the same protections as Members of
Congress under the Speech or Debate Clause.312 Therefore, if the President were absolutely
immune from compelled testimony before Congress, which the Administration argued he surely
was, so to should that immunity extend to his closest presidential advisors, including his White
House Counsel.313
The opinion issued by the U.S. District Court for the District of Columbia on July 31, 2008,
rejected the Administration’s position, noting that “the asserted absolute immunity claim here is
entirely unsupported by existing case law.” 314 In addition, the court reaffirmed Congress’s
“essential,” constitutionally based power to issue and enforce subpoenas.315 Although upholding
Congress’s “right” to information, and acknowledging that that right “derived from its Article I
legislative function, ” the district court made no explicit comment about Congress’s authority to
punish executive branch officials through contempt.316 Nor did the court reach the question of
whether the U.S. Attorney could decline to refer a duly certified criminal contempt citation to a
grand jury under 2 U.S.C. §194.
In dismissing the Administration’s absolute immunity argument, the district court held that past
precedent suggested that presidential advisors could not be regarded as the “alter ego” of the
President for immunity purposes. The Supreme Court had previously rejected the alter ego
analogy in the case of Harlow v. Fitzgerald.317 There, the Court held that executive officers were
not entitled to the same absolute immunity in a civil suit arising from official conduct as enjoyed
by legislators, judges, prosecutors, and the President. As opposed to the relationship between
congressional aides and Members of Congress,318 the President and his advisors were considered
310
Id. at 99-100.
Although the case dealt only with the enforceability of the Committee’s subpoenas, if the Committee did not have
the authority to compel Ms. Miers to appear, non-compliance with the Committee’s subpoena would not appear to have
been grounds for a contempt citation.
312
Miers, 558 F. Supp. 2d. at 100 (“Because senior White House advisers ‘have no operational authority over
government agencies…[t]heir sole function is to advise and assist the President in the exercise of his duties.’ Therefore,
they must be regarded as the President’s ‘alter ego.’”) (citations omitted).
313
Id. (“Accordingly, forcing close presidential advisers to testify before Congress would be tantamount to compelling
the President himself to do so, a plainly untenable result in the Executive’s view.”).
314
Id. at 99 (“The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior
presidential advisors in this or any other context. That simple yet critical fact bears repeating: the asserted absolute
immunity claim here is entirely unsupported by existing case law. In fact, there is Supreme Court authority that is all
but conclusive on this question and that powerfully suggests that such advisors do not enjoy absolute immunity. The
Court therefore rejects the Executive’s claim of absolute immunity for senior presidential aides.”).
315
Id. at 75 (citing McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
311
316
Id. at 84 (“In short, there can be no question that Congress has a right—derived from its Article I legislative
function—to issue and enforce subpoenas, and a corresponding right to the information that is the subject of such
subpoenas.”).
317
457 U.S. 800 (1982).
The Supreme Court has held that the liability protections of the Speech or Debate Clause extend beyond Members to
include their personal staff. Doe v. McMillan, 412 U.S. 306 (1973).
318
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“analytically distinct.”319 These advisors were, therefore, only entitled to qualified immunity in
the performance of their official duties. In light of the Supreme Court’s reasoning in Harlow that
presidential advisors were not entitled to alter ego status for immunity purposes, the Miers court
concluded that there was “nothing left to the Executive’s primary argument…”320
The district court continued, however, and noted that even if presidential advisors were entitled to
the same immunity as the President, it was not clear that the President himself would enjoy
absolutely immune from compelled congressional testimony.321 Although reaching no decision on
whether Congress could subpoena a sitting President for testimony, the court noted that the
Supreme Court’s opinions in U.S. v. Nixon and Clinton v. Jones could be interpreted as
recognizing that the President was not absolutely immune from compulsory process generally. In
the Nixon case, President Nixon was only entitled to a presumptive privilege over the White
House tapes in question—a privilege that could be overcome by a sufficient showing of need by
the grand jury.322 Additionally, in the Clinton case, the Supreme Court held that President Clinton
was not immune from a civil suit arising from unofficial conduct not occurring during his
Presidency, and, therefore, could be required to comply with compulsory process in the suit.323
Like the judiciary’s essential need for access to information in Nixon and Clinton, the district
court reasoned that a congressional subpoena likewise involved “core functions of a co-equal
branch of the federal government.”324
Although the district court opinion in Miers may be characterized as a vindication of
congressional oversight prerogatives, or at least a limitation on the scope of executive privilege in
the face of a congressional investigation, the opinion also made clear that Congress’s authority to
compel testimony from executive branch officials was not unlimited. Indeed, the court noted two
important restrictions. First, the court specifically held that although not enjoying absolute
immunity from congressionally compelled testimony, Ms. Miers was still free to assert executive
privilege “in response to any specific questions posed by the Committee.”325 Thus, Ms. Miers
could still assert the protections of executive privilege during her testimony depending on the
substance of any individual question posed by a Member of the Committee. Second, the court
suggested that Congress may lack authority to compel testimony where such testimony related to
national security, foreign affairs, or another “particularly sensitive function” of the executive
branch.326 Without further explanation, the district court repeatedly noted that absolute immunity
may inhere to presidential advisors where “national security or foreign affairs form the basis for
the Executive’s assertion of privilege.”327
319
Miers, 558 F. Supp. 2d. at 106.
Id. at 101.
321
Id. at 102-03. (“Significantly, although the Supreme Court has established that the President is absolutely immune
from civil suits arising out of his official actions, even the President may not be absolutely immune from compulsory
process more generally…the President may only be entitled to a presumptive, rather than an absolute, privilege here.”).
322
U.S. v. Nixon, 418 U.S. 683 (1974).
323
Clinton v. Jones, 520 U.S. 681 (1997).
324
Miers, 558 F. Supp. 2d. at 103. But see, Senate Select Committee v. Nixon, 498 F.2d 725 (D.C. Cir. 1974)
(describing a select committee’s need for the Nixon White house tapes as “merely cumulative.”).
325
Miers, 558 F. Supp. 2d. at 105.
326
Id. at 101, 106.
327
Id. at 106.
320
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The Administration appealed the district court decision and asked the U.S. Court of Appeals for
the District of Columbia Circuit (D.C. Circuit) to stay the district court order pending an
expedited final decision by that court. On September 16, 2008 the D.C. Circuit granted the stay,
but denied the Administration’s request for an expedited schedule.328 The appeals court had
concluded that “even if expedited, this controversy will not be fully and finally resolved by the
Judicial Branch … before the 110th Congress ends on January 3, 2009. At that time, the 110th
House of Representatives will cease to exist as a legal entity, and the subpoenas it has issued will
expire.”329 As noted previously, the authority underlying a House subpoena or contempt citation
has traditionally been considered to expire at the termination of the Congress in which it was
authorized.330 Accordingly, because the Committee’s subpoenas were likely to expire before the
dispute could be resolved, the court saw no reason to expedite the case.331
On January 13, 2009—with the Miers case still on appeal before the D.C. Circuit, the 110th
Congress having reached its conclusion, and all presidential records set to transfer into the
custody of the Archivist of the United States332 at the end of President Bush’s second term on
January 20th—the district court issued a second order to preserve the availability of documents
covered by the Committee subpoenas.333 The order required the Administration to make copies of
all materials responsive to the subpoenas for storage at the White House until the conclusion of
the litigation.
In March of 2009, after the arrival of a newly elected Congress and presidential administration,
the parties reached a settlement in which some, but not all, of the requested documents would be
provided to the Committee. In addition, Ms. Miers would be permitted to testify, under oath, in a
closed, but transcribed hearing.334 Accordingly, the D.C. Circuit dismissed Miers on October 14,
2009, pursuant to a motion for voluntary dismissal.335 Thus the Miers litigation ended, more than
a year and a half after the Committee first filed its suit to enforce the subpoenas. Ultimately,
however, the Committee was able to gain access to much of the information it had been
seeking.336
Practical Limitations of Congressional Reliance on
Criminal Contempt
The lessons to be gleaned from information access disputes between congressional committees
and the executive branch, including the interbranch quarrels over the U.S. Attorney resignations
328
Committee on the Judiciary v. Miers, 542 F.3d 909 (D.C. Cir. 2008) [hereinafter Miers II].
Id. at 911.
330
See, supra note 59.
331
The concurring opinion appeared to disagree with the majority on this point, arguing that “the successor Congress
can assert the prior Committee’s investigatory interest…” Committee on the Judiciary v. Miers, 542 F.3d 909, 912
(D.C. Cir. 2008)(Tatel, Judge, concurring) (citing United States v. AT&T Co., 567 F.2d 121 (D.C. Cir. 1977)).
332
Presidential Records Act, 44 U.S.C. §§2201-2207.
333
Committee on the Judiciary v. Miers, 2009 U.S. Dist. LEXIS 2326 (D.D.C. 2009).
334
David Johnston, Top Bush Aides to Testify in Attorneys’ Firings, N.Y. TIMES, March. 4, 2009. The settlement also
permitted Karl Rove to testify under the same conditions.
335
Committee on the Judiciary v. Miers, 2009 U.S. App. LEXIS 29374 (D.C. Cir. 2009).
336
The testimony and documents are available at http://judiciary.house.gov/issues/issues_WHInterviews.html.:
http://judiciary.house.gov/issues/issues_WHInterviews.html.
329
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and the Superfund litigation, appear to be twofold. First, a number of obstacles face Congress in
any attempt to enforce a subpoena issued against an executive branch official through the
criminal contempt statute. Although the courts have reaffirmed Congress’s constitutional
authority to issue and enforce subpoenas,337 efforts to punish an executive branch official for noncompliance with a subpoena through criminal contempt will likely prove unavailing in many, if
not most circumstances. Where the President directs or endorses the non-compliance of the
official, such as where the official refuses to disclose information pursuant to the President’s
decision that such information is protected under executive privilege, past practice suggests that
the DOJ will not pursue a prosecution for criminal contempt.338 The U.S. Attorney would likely
rely on prosecutorial discretion as grounds for not forwarding the contempt citation to the grand
jury pursuant to 2 U.S.C. §194.339 In other scenarios, however, where the conduct of the executive
branch official giving rise to the contempt citation was not endorsed by the President, for example
where an official disregards a congressional subpoena to protect personal rather than institutional
interests, the criminal contempt provision may remain an effective avenue for punishing
executive officials. Even in these situations, however, the executive branch may choose not to
prosecute the official so as to avoid establishing a precedent for Congress’s authority to use the
criminal contempt statute to punish an executive branch officer.340
Second, although it appears that Congress may be able to enforce its own subpoenas through a
declaratory civil action, relying on this mechanism to enforce a subpoena directed at an executive
official may prove an inadequate means of protecting congressional prerogatives due to the time
required to achieve a final, enforceable ruling in the case.341 This shortcoming was apparent in the
Miers case, where the Committee received a favorable decision from the district court, but was
unable to enforce that decision prior to the expiration of the 110th Congress and the conclusion of
the Bush Administration.342 Given the precedential importance of any civil action to enforce a
congressional subpoena, the resulting litigation would likely include a protracted appeals process.
The Miers litigation, which never reached a decision on the merits by the D.C. Circuit, was
dismissed at the request of the parties after approximately 19 months.343 Although the Committee
gained access to much of the information the Bush Administration had refused to disclose, the
change in administrations and the passage of time could be said to have diminished the
Committee’s ability to utilize the provided information to engage in effective oversight.
337
Such subpoenas are still subject to valid claims of executive privilege and other constitutional imitations. See,
“Constitutional Limitations”
338
Although criminal contempt citations were forwarded to the U.S. Attorney for the District of Columbia in both the
Burford and Miers disputes, no prosecutions were ever brought.
339
See supra pages 21-23.
340
The OLC opinions previously discussed only challenged the application of the criminal contempt statute in cases in
which the executive branch official in question has asserted a claim of executive privilege. See, Olson Memo, supra
note 249.
341
It should also be repeated that the Senate civil enforcement statute, by its own terms, is inapplicable in the case of a
subpoena issued to an officer or employee of the federal government acting in their official capacity. 28 U.S.C.
§1364(a).
342
At least one commentator has suggested that reliance on the courts to enforce congressional subpoenas has
diminished Congress’s constitutional standing. See, Josh Chafetz, Congress’s Constitution, 160 U. PA. L. REV. 715, 741
(2012) (“It seems literally unimaginable to the [Miers] court that the executive branch might resist a court order as
readily as it would resist an order from the House. And the House, in choosing to invoke the court’s authority rather
than its own, played right into this perception. It reinforced the idea that that the judiciary is the domain of reasoned,
principled judgments that must be respected, while congressional action in defense of its powers is ‘unseemly.’”).
343
However, if a lawsuit were brought early in a Congress, a reviewing court was willing to expedite the case, and
discretionary appeals were denied, civil enforcement of a subpoena could be achieved promptly.
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In light of these practical realties, in many situations Congress likely will not be able to rely on
the executive branch to effectively enforce subpoenas directed at executive branch officials, nor
will reliance on the civil enforcement of subpoenas through the judicial branch always result in a
prompt resolution of the dispute. Although subject to practical limitations, Congress retains the
ability to exercise its own constitutionally based authorities to enforce a subpoena through
inherent contempt.344
Non-Constitutional Limitations
Authorization and Jurisdiction
Although the courts have upheld the authority of Congress to investigate and to cite a witness for
contempt, they have also established limits, rooted both in the language of the criminal contempt
statute and in the Constitution, on the investigatory and contempt powers. Recognizing that 2
U.S.C. §192 is a criminal statute, the courts have accorded defendants the same safeguards as
defendants in other criminal proceedings.345
The criminal contempt statute is applicable to contempts committed by a person “summoned as a
witness by the authority of either House of Congress ... .”346 The statute applies regardless of
whether a subpoena has been issued by a committee or by the full House or Senate.347 Although
the statute specifically makes the contempt sanction applicable to a witness who has been
“summoned,” the law applies whether the individual is subpoenaed or appears voluntarily and
then refuses to testify.348
A contempt conviction will not be upheld if the committee’s investigation has not been clearly
authorized by the full House or Senate.349 The investigation, and the questions posed, must be
within the scope of the committee’s jurisdiction.350 A committee cannot issue a subpoena for a
subject outside the scope of its jurisdiction. Authorization from the parent body may take the form
of a statute,351 a resolution,352 or a standing rule of the House or Senate.353 In the case of a
344
The district court in Miers warned against the risks of employing inherent contempt. 558 F. Supp. 2d. at 78
(“Exercise of Congress’s inherent contempt power through arrest and confinement of a senior executive official would
provoke an unseemly constitutional confrontation that should be avoided.”). In addition, even where either contempt or
civil enforcement proceedings prove unavailing, Congress may utilize other powers, including, for example, the
imposition of funding restrictions, to coerce compliance by executive branch officials.
345
Russell v. United States, 369 U.S. 749 (1962); see also Sinclair v. United States, 279 U.S. 263 (1929). While most of
the case law in this section of the report involves decisions under the statutory criminal contempt procedure, many of
the holdings would be applicable to exercises of the civil enforcement statute and the inherent contempt power. See
S.Rept. No. 95-170, 95th Cong., 1st Sess., 41, 94.
346
2 U.S.C. §192 (2000) (emphasis added).
347
McGrain v. Daugherty, 2 73 U.S. 135 (1927); see also Sinclair v. United States, 279 U.S. 263, 296 (1929).
348
Sinclair, 279 U.S. at 296.
349
United States v. Rumely, 343 U.S. 41 (1953); Tobin v. United States, 306 F.2d 270 (D.C. Cir.), cert. denied, 371
U.S. 902 (1962); United States v. Patterson, 206 F.2d 433 (D.C. Cir. 1953).
350
See United States v. Rumely, 343 U.S. 41 (1953); see also United States v. Patterson, 206 F.2d 433 (D.C. Cir. 1953).
351
26 U.S.C. §8021, 8022 (2000) (Joint Committee on Taxation).
352
Resolutions are generally used to establish select or special committees and to delineate their authority. and
jurisdiction. See 4 Deschler’s Precedents, supra note 91, ch. 17, 56; see also e.g., S.Res. 23, 100th Cong. (Iran-Contra);
S.Res. 495, 96th Cong. (Billy Carter/Libya).
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subcommittee investigation, the subject matter must fall within the scope of authority granted to
the subcommittee by the full committee.354 Investigations may be conducted, and subpoenas
issued, pursuant to a committee’s legislative or oversight jurisdiction.355
In construing the scope of a committee’s authorizing rule or resolution, the Supreme Court has
adopted a mode of analysis not unlike that ordinarily followed in determining the meaning of a
statute: it looks first to the words of the resolution itself, and then, if necessary, to the usual
sources of legislative history, including floor statements, reports, and past committee practice. As
explained by the Court in Barenblatt v. United States,356 “[j]ust as legislation is often given
meaning by the gloss of legislative reports, administrative interpretation, and long usage, so the
proper meaning of an authorization to a congressional committee is not to be derived alone from
its abstract terms unrelated to the definite content furnished them by the course of congressional
actions.”357 It appears that the clear articulation of committee jurisdiction in both the House and
Senate rules combined with the express authorization of special committees by resolution has
effectively eliminated the use of jurisdiction as a defense to contempt proceedings.
Legislative Purpose
A committee’s investigation must have a legislative purpose or be conducted pursuant to some
other constitutional power of the Congress, such as the authority of each House to discipline its
own Members, judge the returns of the their elections, and to conduct impeachment
proceedings.358 Although the early case of Kilbourn v. Thompson359 held that the investigation in
that case was an improper probe into the private affairs of individuals, the courts today generally
will presume that there is a legislative purpose for an investigation, and the House or Senate rule
or resolution authorizing the investigation does not have to specifically state the committee’s
legislative purpose.360 In In re Chapman, 361 the Court upheld the validity of a resolution
(...continued)
353
This mode is the most common today. Both the House and the Senate authorize standing committees to make
investigations within their jurisdiction, and permit such committees and their subcommittees to issue subpoenas. See
House Rules Manual, H.R. Doc. No. 108-241, 108th Cong. 2d Sess., Rule XI, cl. l (b) and cl. 2 (m) (2005); Senate
Manual, S. Doc. No. 98-1, 98th Cong., 2d Sess., Rule XXVI, cl. 1 (1984).
354
Gojack v. United States, 384 U.S. 702, 706 (1966). The case involved a rule of the former House Committee on UnAmerican Activities, which stated that “no major investigations shall be initiated without the approval of a majority of
the committee.” The court reversed the contempt conviction in Gojack because the subcommittee’s investigation,
which resulted in the contempt citation, had not been approved by the committee as its rules required.
Despite the provision of Senate Rule XXVI, cl.1, authorizing subcommittee subpoenas, the rules of at least one
committee expressly prohibit subcommittee subpoenas (Committee on Small Business, Rule 3(c)), while another
committee requires approval by the full committee of any subcommittee subpoenas (Committee on Labor and Human
Resources, Rule 17 ).
355
A leading study of Senate committee jurisdiction noted that “oversight jurisdiction necessarily flows from specific
legislative enactments, but it also emanates from broader and more vaguely defined jurisdiction which committees may
exercise in particular subject matter areas.” First Staff Report to the Temporary Select Committee to Study the Senate
Committee System, 94th Cong., 2d Sess., 104 (1976); see also United States v. Kamin, 136 F. Supp. 791, 801 (D. Mass.
1956) (providing a judicial application of oversight jurisdiction in the investigatory context).
356
360 U.S. 109, 117 (1959).
357
See Watkins v. United States, 354 U.S. 178, 209-215 (1957).
358
See, e.g., McGrain v. Daugherty, 273 U.S. 135 (1927); see also In Re Chapman, 166 U.S. 661 (1897).
359
103 U.S. 168 (1881).
360
McGrain v. Daugherty, 273 U.S. 135 (1927); see also Townsend v. United States, 95 F.2d 352 (D.C. Cir. 1938);
LEADING CASES ON CONGRESSIONAL INVESTIGATORY POWER, 7 (Comm. Print 1976) [hereinafter cited as Leading
(continued...)
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authorizing an inquiry into charges of corruption against certain Senators despite the fact that it
was silent as to what might be done when the investigation was completed. The Court stated:
The questions were undoubtedly pertinent to the subject matter of the inquiry. The
resolutions directed the committee to inquire “whether any Senator has been, or is,
speculating in what are known as sugar stocks during the consideration of the tariff bill now
before the Senate.” What the Senate might or might not do upon the facts when ascertained,
we cannot say nor are we called upon to inquire whether such ventures might be defensible,
as contended in argument, but it is plain that negative answers would have cleared that body
of what the Senate regarded as offensive imputations, while affirmative answers might have
led to further action on the part of the Senate within its constitutional powers.
Nor will it do to hold that the Senate had no jurisdiction to pursue the particular inquiry
because the preamble and resolutions did not specify that the proceedings were taken for the
purpose of censure or expulsion, if certain facts were disclosed by the investigation. The
matter was within the range of the constitutional powers of the Senate. The resolutions
adequately indicated that the transactions referred to were deemed by the Senate
reprehensible and deserving of condemnation and punishment. The right to expel extends to
all cases where the offense is such as in the judgment of the Senate is inconsistent with the
trust and duty of a member.
We cannot assume on this record that the action of the Senate was without a legitimate
object, and so encroach upon the province of that body. Indeed, we think it affirmatively
appears that the Senate was acting within its right, and it was certainly not necessary that the
resolutions should declare in advance what the Senate meditated doing when the
investigation was concluded.362
In McGrain v. Daugherty,363 the original resolution that authorized the Senate investigation into
the Teapot Dome Affair made no mention of a legislative purpose. A subsequent resolution for the
attachment of a contumacious witness declared that his testimony was sought for the purpose of
obtaining “information necessary as a basis for such legislative and other action as the Senate
may deem necessary and proper.” The Court found that the investigation was ordered for a
legitimate object. It wrote:
The only legitimate object the Senate could have in ordering the investigation was to aid it in
legislating, and we think the subject matter was such that the presumption should be
indulged that this was the real object. An express avowal of the object would have been
better; but in view of the particular subject-matter was not indispensable. ***
The second resolution—the one directing the witness be attached—declares that this
testimony is sought with the purpose of obtaining “information necessary as a basis for such
legislative and other action as the Senate may deem necessary and proper.” This avowal of
contemplated legislation is in accord with what we think is the right interpretation of the
earlier resolution directing the investigation. The suggested possibility of “other action” if
deemed “necessary or proper” is of course open to criticism in that there is no other action in
(...continued)
Cases]. For a different assessment of recent case law concerning the requirement of a legislative purpose, See
Moreland, supra note 61, at 232.
361
166 U.S. 661, 669 (1897).
362
In re Chapman, 166 U.S. at 699.
363
273 U.S. 135 (1927).
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the matter which would be within the power of the Senate. But we do not assent to the view
that this indefinite and untenable suggestion invalidates the entire proceeding. The right view
in our opinion is that it takes nothing from the lawful object avowed in the same resolution
and is rightly inferable from the earlier one. It is not as if an inadmissible or unlawful object
were affirmatively and definitely avowed.364
Moreover, when the purpose asserted is supported by reference to specific problems which in the
past have been, or in the future may be, the subject of appropriate legislation, it has been held that
a court cannot say that a committee of the Congress exceeds its power when it seeks information
in such areas.365 In the past, the types of legislative activity which have justified the exercise of
the power to investigate have included the primary functions of legislating and appropriating;366
the function of deciding whether or not legislation is appropriate;367 oversight of the
administration of the laws by the executive branch;368 and the essential congressional function of
informing itself in matters of national concern.369 In addition, Congress’s power to investigate
such diverse matters as foreign and domestic subversive activities,370 labor union corruption,371
and organizations that violate the civil rights of others372—have all been upheld by the Supreme
Court.373
Despite the Court’s broad interpretation of legislative purpose, Congress’s authority is not
unlimited. Courts have held that a committee lacks legislative purpose if it appears to be
conducting a legislative trial rather than an investigation to assist in performing its legislative
function.374 Furthermore, although “there is no congressional power to expose for the sake of
exposure,”375 “so long as Congress acts in pursuance of its constitutional power, the Judiciary
lacks authority to intervene on the basis of the motives which spurred the exercise of that
power.”376
364
Id. at 179-180.
Shelton v. United States, 404 F.2d 1292, 1297 (D.C. Cir. 1968), cert denied, 393 U.S. 1024 (1969).
366
Barenblatt v. United States, 360 U.S. 109 (1959).
367
Quinn v. United States, 349 U.S. 155, 161 (1955).
368
McGrain, 273 U.S. at 295.
369
United States v. Rumely, 345 U.S. 4, 43-45 (1953); see also Watkins, 354 U.S. at 200 n. 3.
370
See, e.g., Barenblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States, 354 U.S. 178 (1957); McPhaul
v. United States, 364 U.S. 372 (1960).
371
Hutcheson v. United States, 369 U.S. 599 (1962).
372
Shelton v. United States, 404 F.2d 1292 (D.C. Cir. 1968), cert. denied, 393 U.S. 1024 (1969).
373
For an indication of the likely breadth of Congress’s power to investigate, see supra note 9-23 and accompanying
text.
374
See United States v. Icardi, 140 F. Supp. 383 (D.D.C. 1956); United States v. Cross, 170 F. Supp. 303 (D.D.C.
1959).
375
Watkins v. United States, 354 U.S. 178, 200 (1957). However, Chief Justice Warren, writing for the majority, made
it clear that he was not referring to the “power of the Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government.” Id.
376
Barenblatt, 360 U.S. at 132.
365
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Pertinency
Two different issues of pertinency arise in regard to a contempt prosecution.377 First, a witness’s
refusal to answer questions or provide subpoenaed documents will be punished as a contempt
only if the questions posed (or documents requested) by the committee are, in the language of the
statute, “pertinent to the question under inquiry.”378 In determining general questions of the
pertinency of inquiries, the courts have required only that the specific inquiries be reasonably
related to the subject matter under investigation.379 Given the breadth of congressional
investigations, the courts have long recognized that pertinency in the legislative context is broader
than in the judicial context, which relies primarily on the law of evidence’s standard of relevance.
For example, the D.C. Circuit has stated that
A legislative inquiry may be as broad, as searching, and as exhaustive as is necessary to
make effective the constitutional powers of Congress. ... A judicial inquiry relates to a case,
and the evidence to be admissible must be measured by the narrow limits of the pleadings. A
legislative inquiry anticipates all possible cases which may arise thereunder and the evidence
admissible must be responsive to the scope of the inquiry which generally is very broad.380
The second pertinency issue concerns the Fifth Amendment’s Due Process Clause. According to
the Supreme Court in Deutch v. United States, the pertinency of a “committee’s inquiry must be
brought home to the witness at the time the questions are put to him.”381 The Court in Watkins
stated that
[u]nless the subject matter has been made to appear with undisputable clarity, it is the duty of
the investigative body, upon objection of the witness on grounds of pertinency, to state for
the record the subject under inquiry at that time and the manner in which the propounded
questions are pertinent thereto. To be meaningful, the explanation must describe what the
topic under inquiry is and the connective reasoning whereby the precise questions asked
relate to it.382
In addition, according to commentators, a witness is entitled “to understand the specific aspect of
the committee’s jurisdiction under its authorizing resolution [or House or Senate rule] to which
the question relates.”383 Finally, it appears that the committee must specifically rule on a
pertinency objection and, if the objection is overruled, inform the witness of that fact before again
directing him to answer the question.
The Court has also observed that a witness might resort to several sources in determining the
subject matter of an investigation. These include, but are likely not limited to: (a) the House or
Senate resolution authorizing the committee inquiry; (b) the committee’s resolution authorizing
the subcommittee investigation; (c) the introductory statement of the chairman or other committee
377
Deutch v. United States, 367 U.S. 456, 467-68 (1961).
2 U.S.C. §192 (2000); see also Barenblatt, 360 U.S. at 123; Watkins, 354 U.S. at 208
379
Sinclair v. United States, 279 U.S. 263, 279 (1929); Ashland Oil, Inc. v. FTC, 409 F. Supp. 287, 305 (D.D.C. 1976).
380
Townsend v. United States, 95 F.2d 352, 361 (D.C. Cir. 1938), cert. denied, 303 U.S. 664 (1938) (internal citation
omitted) (emphasis in original).
381
Deutch, 367 U.S. at 467-68.
382
Watkins, 354 U.S. at 214-15.
383
See James Hamilton, THE POWER TO PROBE: A STUDY OF CONGRESSIONAL INVESTIGATIONS, 241 (1977) [hereinafter
Hamilton].
378
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Members; (d) the nature of the proceedings; and (e) the chairman’s response to a witness’s
objections on the grounds of lack of pertinency.384
Willfulness
A conviction for statutory criminal contempt cannot be sustained unless the failure to appear
before the committee, to produce documents, or to respond to questions is a willful, intentional
act.385 However, an evil motive does not have to be established.386 Because of the willfulness
requirement, and to satisfy constitutional due process standards, when a witness objects to a
question or otherwise refuses to answer, the chairman or presiding member should rule on any
objection and, if the objection is overruled, the witness should be clearly directed to answer.387 It
has been observed that “there is no talismanic formula which [a] committee must use in directing
[a] witness to answer,” but he should be clearly informed “and not left to the risk of guessing
upon pain of criminal penalties, whether the grounds for his objection to answering [are] accepted
or rejected,” and “if they are rejected, he should be given another chance to answer.”388 The
procedure to be followed in responding to a witness’s objections to questions has been described
as follows:
If a witness refuses to answer a question, the committee must ascertain the grounds relied
upon by the witness. It must clearly rule on the witness’s objection, and if it overrules the
witness’s objection and requires the witness to answer, it must instruct the witness that his
continued refusal to answer will make him liable to prosecution for contempt of Congress.
By failing adequately to apprise the witness that an answer is required notwithstanding his
objection the element of deliberateness necessary for conviction for contempt under 2 U.S.C.
§192 is lacking, and such a conviction cannot stand.389
Other Procedural Requirements
A contempt conviction can be reversed on other non-constitutional grounds. The cases make clear
that committees must closely follow their own rules and the rules of their parent body in
authorizing subpoenas390 and conducting investigations and hearings.391 It appears that a witness
384
Watkins, 354 U.S. at 209-14.
Quinn v. United States, 349 U.S. 155, 165 (1955); see also United States v. Bryan, 339 U.S. 323 (1950); United
States v. Josephson, 165 F.2d 82 (2d Cir. 1948), cert. denied, 333 U.S. 838 (1948); Deutch v. United States, 235 F.2d
853 (D.C. Cir. 1956), rev’d on other grounds, 367 U.S. 456 (1961).
386
See generally, Allen B. Moreland, Congressional Investigations and Private Persons, 40 SO. CAL. L. REV. 189, 23942 (1967).
387
See, e.g., Deutch v. United States, 367 U.S. 456 (1961); Watkins v. United States, 354 U.S. 178 (1957); Quinn v.
United States, 349 U.S. 155 (1955); Emspak v. United States, 349 U.S. 190 (1955); Bart v. United States, 349 U.S. 219
(1955); Braden v. United States, 272 F.2d 653, 661 (5th Cir. 1959), aff’d, 365 U.S. 961 (1961).
388
Quinn v. United States, 203 F.2d 30, 33 (D.C. Cir. 1952), aff’d, 349 U.S. 155 (1955).
389
See Leading Cases, supra note 356 at 69.
390
Shelton v. United States, 327 F.2d 601 (D.C. Cir. 1963); see also Liveright v. United States, 347 F.2d 473 (D.C. Cir.
1965).
391
Yellin v. United States, 374 U.S. 109 (1963); Gojack v. United States, 384 U.S. 702 (1966).
385
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can be convicted of criminal contempt,392 but not of perjury, where a quorum of the committee
was not present.393
Attorney-Client Privilege
In practice, the exercise of committee discretion whether to accept a claim of attorney-client
privilege has turned on a “weighing [of] the legislative need for disclosure against any possible
resulting injury.”394 More particularly, the process of committee resolution of claims of attorneyclient privilege has traditionally been informed by weighing considerations of legislative need,
public policy, and the statutory duty of congressional committees to engage in continuous
oversight of the application, administration, and execution of laws that fall within their
jurisdiction,395 against any possible injury to the witness. In the particular circumstances of any
situation, a committee may consider and evaluate the strength of a claimant’s assertion in light of
the pertinency of the documents or information sought to the subject of the investigation, the
practical unavailability of the documents or information from any other source, the possible
unavailability of the privilege to the claimant if it were to be raised in a judicial forum, and the
committee’s assessment of the cooperation of the witness in the matter, among other
considerations. A valid claim of attorney-client privilege, free of any taint of waiver, exception or
other mitigating circumstance, would merit substantial weight. Any serious doubt, however, as to
the validity of the asserted claim would diminish its compelling character.396 Moreover, the
conclusion that recognition of non-constitutionally based privileges, such as attorney-client
privilege, is a matter of congressional discretion is consistent with both traditional British
parliamentary and the Congress’s historical practice.397
392
United States v. Bryan, 339 U.S. 323 (1950).
The Court held in Christoffel v. United States, 338 U.S. 84 (1949), that a quorum of the committee must be present
at the time that the perjurious testimony is given. It is not sufficient that a quorum is present at the start of the hearing.
The difference in regard to the quorum requirement between the contempt statute (2 U.S.C. §192) and the perjury
statute (18 U.S.C. §1621) is the provision in the latter that the statement must have been made before a “competent
tribunal,” and a quorum has been considered necessary for the tribunal to be competent. The Court in Christoffel
recognized the constitutional power of each House t o determine the rules of its proceedings and pursuant to t h i s
power, the Senate has authorized its committees to adopt rules under which one member of a committee can constitute
a quorum for the receipt of sworn testimony. See Senate Rule XXVI, cl. 7(a)(2). The House allows committees to adopt
rules providing for receipt of testimony by as few as two members. See House Rule X I, c l. 2(h).
394
Hearings, “International Uranium Cartel”, Subcomm. on Oversight and Investigations, House Comm. on Interstate
and Foreign Commerce, 95th Cong., 1st Sess., Vol. 1, 123 (1977).
395
See 2 U.S.C. 190d (1994).
396
See, e.g., Contempt of Congress Against Franklin L. Haney, H.Rept. 105-792, 105th Cong., 2d Sess., 11-15 (1998);
Proceedings Against John M. Quinn, David Watkins, and Matthew Moore (Pursuant to Title 2, United States Code,
Sections 192 and 194), H.Rept. 104-598, 104th Cong., 2d Sess., 40-54 (1996); Refusal of William H. Kennedy, III, To
Produce Notes Subpoenaed by the Special Committee to Investigate Whitewater Development Corporation and Related
Matters, S.Rept. 104-191, 104th Cong. 1st Sess., 9-19 (1995); Proceedings Against Ralph Bernstein and Joseph
Bernstein, H.Rept. 99-462, 99th Cong. 2d Sess., 13, 14 (1986); Hearings, International Uranium Control, before the
Subcommittee on Oversight and Investigations, House Committee on Interstate and Foreign Commerce, 95th Cong., 1st
Sess., 60, 123 (1977).
397
See, CRS Report 95-464, Investigative Oversight: An Introduction to the Law, Practice and Procedure of
Congressional Inquiry, pp. 43-55 (April 7, 1995; available upon request); see also, Glenn A. Beard, Congress v. the
Attorney-Client Privilege: A “Full and Frank Discussion,” 35 Amer. CRIM. L. REV. 119 122-127 (1997)
(“[C]ongressional witnesses are not legally entitled to the protection of the attorney-client privilege, and investigating
committees therefore have discretionary authority to respect or overrule such claims as they see fit.”); Thomas Millett,
The Applicability of Evidentiary Privileges for Confidential Communications Before Congress, 21 JOHN MARSHALL L.
REV. 309 (1988).
393
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Although there is limited case law with respect to attorney-client privilege claims before
congressional committees,398 appellate court rulings on the privilege in cases involving other
investigative contexts (e.g., grand jury) have raised questions as to whether executive branch
officials may claim attorney-client, work product, or deliberative process privileges in the face of
investigative demands.399 These rulings may lead to additional arguments in support of the longstanding congressional practice.
The legal basis for Congress’s practice in this area is based upon its inherent constitutional
prerogative to investigate which has been long recognized by the Supreme Court as extremely
broad and encompassing, and which is at its peak when the subject is fraud, abuse, or
maladministration within a government department.400 The attorney-client privilege is, on the
other hand, not a constitutionally based privilege, rather it is a judge-made exception to the
normal principle of full disclosure in the adversary process which is to be narrowly construed and
has been confined to the judicial forum.401
While no court has recognized the inapplicability of the attorney-client privilege in congressional
proceedings in a decision directly addressing the issue,402 an opinion issued by the Legal Ethics
Committee of the District of Columbia Bar in February 1999, clearly acknowledges the
longstanding congressional practice.403 The occasion for the ruling arose as a result of an
investigation of a Subcommittee of the House Commerce Committee into the circumstances
surrounding the planned relocation of the Federal Communications Commission to the Portals
398
See In the Matter of Provident Life and Accident Co., E.D. Tenn., S.D., CIV-1-90-219, June 13, 1990 (noting that
the court’s earlier ruling on an attorney-client privilege claim was “not of constitutional dimensions, and is certainly not
binding on the Congress of the United States.”).
399
In re Grand Jury Subpoena Duces Tecum, 112 F. 3d 910 (8th Cir. 1997), cert. denied sub. nom., Office of the
President v. Office of the Independent Counsel, 521 U.S. 1105 (1997) (rejecting claims by the First Lady of attorneyclient and work-product privilege with respect notes taken by White House Counsel Office attorneys); In re Bruce R.
Lindsey (Grand Jury Testimony), 158 F. 3d 1263 (D.C. Cir. 1998), cert. denied, 525 U.S. 996 (1998) (holding that a
White House attorney may not invoke attorney-client privilege in response to grand jury subpoena seeking information
on possible commission of federal crimes); In re Sealed Case (Espy), 121 F.3d 729 (D.C. Cir. 1997) (deciding that the
deliberative process privilege is a common law agency privilege which can be overcome by a showing of need by an
investigating body); In re: A Witness Before the Special Grand Jury, 288 F.3d 289 (7th Cir. 2002) (holding that the
attorney-client privilege is not applicable to communications between state government counsel and state office
holder); But see In re Grand Jury Investigation, 399 F.3d 527 (2d Cir. 2005) (upholding a claim of attorney-client
privilege with respect to communications between a former chief legal counsel to the governor of Connecticut who was
under grand jury investigation. It is worth noting that the Second Circuit recognized its apparent conflict with the aforecited cases, however, the ruling is arguably distinguishable on its facts. See Kerri R. Blumenauer, Privileged or Not?
How the Current Application of the Government Attorney-Client Privilege Leaves the Government Feeling
Unprivileged, 75 FORDHAM L. REV. 75 (2006)).
400
McGrain v. Daugherty, 272 U.S. 135, 177 (1926); Watkins v. United States, 354 U.S. 178, 187 (1957); Eastland v.
United States Servicemen’s Fund, 421 U.S. 491, 504 n.15 (1975).
401
Westinghouse Electric Corporation v. Republic of the Philippines, 951 F.2d 1414, 1423 (3d Cir. 1991).
402
The Supreme Court has recognized that “only infrequently have witnesses ... [in congressional hearings] been
afforded the procedural rights normally associated with an adjudicative proceeding.” Hannah v. Larche, 363 U.S. 420,
425 (1960); see also, United States v. Fort, 443 F. 2d 670 (D.C. Cir. 1970), cert. denied, 403 U.S. 932 (1971) (rejecting
the contention that the constitutional right to cross-examine witnesses applied to a congressional investigation); In the
Matter of Provident Life and Accident Co., E.D. Tenn., S.D., CIV-1-90-219, June 13, 1990 (noting that the court’s
earlier ruling on an attorney-client privilege claim was “not of constitutional dimensions, and is certainly not binding
on the Congress of the United States.”).
403
Opinion No. 288, Compliance With Subpoena from Congressional Committee to Produce Lawyers’ Files
Containing Client Confidences or Secrets, Legal Ethics Committee, District of Columbia Bar, February 16, 1999. (D.C
Ethics Committee Opinion).
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office complex.404 During the course of the inquiry, the Subcommittee sought certain documents
from the Portals developer, Mr. Franklin L. Haney. Mr. Haney’s refusal to comply resulted in
subpoenas for those documents to him and the law firm representing him during the relocation
efforts. Both Mr. Haney and the law firm asserted attorney-client privilege in their continued
refusal to comply. In addition, the law firm sought an opinion from the D.C. Bar’s Ethics
Committee as to its obligations in the face of the subpoena and a possible contempt citation. The
Bar Committee notified the firm that the question was novel and that no advice could be given
until the matter was considered in a plenary session of the Committee.405 The firm continued its
refusal to comply until the Subcommittee cited it for contempt, at which time the firm proposed
to turn over the documents if the contempt citation was withdrawn. The Subcommittee agreed to
the proposal.406
Subsequently, on February 16, 1999, the D.C. Bar’s Ethics Committee issued an opinion
vindicating the action taken by the firm. The Ethics Committee, interpreting D.C. Bar Rule of
Professional conduct 1.6(d)(2)(A),407 held that an attorney faced with a congressional subpoena
that would reveal client confidences or secrets
has a professional responsibility to seek to quash or limit the subpoena on all available,
legitimate grounds to protect confidential documents and client secrets. If, thereafter, the
Congressional subcommittee overrules these objections, orders production of the documents
and threatens to hold the lawyer in contempt absent compliance with the subpoena, then, in
the absence of a judicial order forbidding the production, the lawyer is permitted, but not
required, by the D.C. Rules of Professional Conduct to produce the subpoenaed documents.
A directive of a Congressional subcommittee accompanied by a threat of fines and
imprisonment pursuant to federal criminal law satisfies the standard of “required by law” as
that phrase is used in D.C. Rule of Professional conduct 1.6(d)(2)(A).
The D.C. Bar opinion urges attorneys to press every appropriate objection to the subpoena until
no further avenues of appeal are available, and even suggests that clients might be advised to
retain other counsel to institute a third-party action to enjoin compliance,408 but allows the
attorney to relent at the earliest point when he is put in legal jeopardy. The opinion represents the
first, and thus far the only, bar in the nation to directly and definitively address the merits of the
issue.
In the end, of course, it is the congressional committee alone that determines whether to accept a
claim of attorney-client privilege.
404
See H.Rept. 105-792, 105th Cong., 1st Sess., 1-6, 7-8, 15-16 (1997).
See Meeting on Portal Investigation (Authorization of Subpoenas; Receipt of Subpoenaed Documents and
Consideration of Objections); and Contempt of Congress Proceedings Against Franklin L. Haney, H. Comm. On
Commerce, 105th Cong., 2d Sess., 48-50 (1998).
406
Id. at 101-105.
407
Under Rule 1.6(d)(2)(A) a lawyer may reveal client confidences or secrets only when expressly permitted by the
D.C. Bar rules or when “required by law or court order.”
408
A direct suit to enjoin a committee from enforcing a subpoena has been foreclosed by the Supreme Court’s decision
in Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 501 (1975), but that ruling does not appear to foreclose
an action against a “third party,” such as the client’s attorney, to test the validity of the subpoena or the power of a
committee to refuse to recognize the privilege. See, e.g., United States v. AT&T, 567 F. 2d 121 (D.C.Cir. 1977)
(entertaining an action by the Justice Department to enjoin AT&T from complying with a subpoena to provide
telephone records that might compromise national security matters).
405
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Work Product Immunity and Other Common Law Testimonial
Privileges
Common law rules of evidence as well as statutory enactments recognize a testimonial privilege
for witnesses in a judicial proceeding so that they need not reveal confidential communications
between doctor and patient, husband and wife, or clergyman and parishioner.409 Although there is
no court case directly on point, it appears that, like the privilege between attorney and client,
congressional committees are not legally required to allow a witness to decline to testify on the
basis of other similar testimonial privileges.410 It should be noted, however, that the courts have
denied claims by the White House Counsel’s office of attorney work product immunity in the face
of grand jury subpoenas that have been grounded on the assertion that the materials sought were
prepared in anticipation of possible congressional hearings.411 In addition, court decisions indicate
that various rules of procedure generally applicable to judicial proceedings, such as the right to
cross-examine and call other witnesses, need not be accorded to a witness in a congressional
hearing.412 The basis for these determinations is rooted in Congress’s Article I Section 5
rulemaking powers,413 under which each House is the exclusive determiner of the rules of its own
proceedings. This rulemaking authority, as well as general separation of powers considerations,
suggests that Congress and its committees are not obliged to abide by rules established by the
courts to govern their own proceedings.414
Though congressional committees may not be legally obligated to recognize the privilege for
confidential communications, they may do so at their discretion. Historical precedent suggests
that committees often have recognized such privileges.415 The decision as to whether or not to
allow such claims of privilege turns on a “weighing [of] the legislative need for disclosure against
any possible resulting injury.”416
409
See generally, 8 Wigmore, EVIDENCE §2285 (McNaughton ed. 1961); see also FED. R. EVID. 501. For an analysis of
the attorney client privilege, See infra notes 331-344 and accompanying text.
410
Compare, Attorney-Client Privilege: Memoranda Opinions of the American Law Division, Library of Congress,
Comm. Print of the Subcommittee on Oversight and Investigations of the House Committee on Energy and Commerce,
98th Cong., 1st Sess., 926 (1983) [hereinafter Attorney-Client Privilege Comm. Print], with Id. at 41, 44 et. seq; see also
generally, Moreland, supra note 9 at 265-67.
411
See e.g., In re Grand Jury Subpoena Duces Tecum, 112 F.3d 907, 924-25 (8th Cir. 1997); In re Grand Jury
Proceedings, 5 F.Supp.2d 21, 39 (D.D.C. 1998).
412
United States v. Fort, 443 F.2d 670 (D.C. Cir. 1970), cert. denied, 403 U.S. 932 (1971), (citing Hannah v. Larche,
363 U.S. 420 (1960)).
413
U.S. CONST. Art. 1, §5, cl. 2
414
See generally, Telford Taylor, GRAND INQUEST: THE STORY OF CONGRESSIONAL INVESTIGATIONS 227-28 (1974).
415
See Hamilton, supra note 379, at 244; see also S.Rept. No. 2, 84th Cong., 1st Sess., (1955). Hamilton notes that John
Dean, the former counsel to the President, testified before the Senate Watergate Committee after Nixon had “waived
any attorney-client privilege he might have had because of their relationship.” Id.
416
Attorney-Client Privilege Comm. Print, supra note 406, at 27 (citing Hearings on an International Uranium Cartel
before the Subcommittee on Oversight and Investigations, House Committee on Interstate and Foreign Commerce, 95th
Cong., 1st Sess., 60, 123 (1977)).
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Constitutional Limitations
The Supreme Court has observed that “Congress, in common with all branches of the
Government, must exercise its powers subject to the limitations placed by the Constitution on
governmental action, more particularly in the context of this case, the relevant limitations of the
Bill of Rights.”417 There are constitutional limits not only on Congress’s legislative powers, but
also on its investigative powers.
First Amendment
Although the First Amendment, by its terms, is expressly applicable only to legislation that
abridges freedom of speech, press, or assembly, the Court has held that the amendment also
restricts Congress in conducting investigations.418 In the leading case involving the application of
First Amendment rights in a congressional investigation, Barenblatt v. United States,419 the Court
held that “where First Amendment rights are asserted to bar government interrogation resolution
of the issue always involves a balancing by the courts of the competing private and public
interests at stake in the particular circumstances shown.” Thus, unlike the Fifth Amendment
privilege against self-incrimination, the First Amendment does not give a witness an absolute
right to refuse to respond to congressional demands for information.420
The Court has held that in balancing the personal interest in privacy against the congressional
need for information, “the critical element is the existence of, and the weight to be ascribed to, the
interest of the Congress in demanding disclosure from an unwilling witness.” 421 To protect the
rights of witnesses, in cases involving the First Amendment, the courts have emphasized the
requirements discussed above concerning authorization for the investigation, delegation of power
to investigate to the committee involved, and the existence of a legislative purpose.422
While the Court has recognized the application of the First Amendment to congressional
investigations, and although the amendment has frequently been asserted by witnesses as grounds
for not complying with congressional demands f or information, the Court has never relied on the
417
Barenblatt v. United States, 360 U.S. 109, 112 (1959). Not all of the provisions of the Bill of Rights are applicable
to congressional hearings. For example, the sixth amendment right of a criminal defendant to cross-examine witnesses
and to call witnesses in his behalf has been held not applicable to a congressional hearing. United States v. Fort, 443
F.2d 670 (D.C. Cir. 1970), cert. denied, 403 U.S. 932 (1971).
418
Watkins v. United States, 354 U.S. 178, 197 (1957).
419
360 U.S. 109, 126 (1959).
420
Id.
421
Watkins, 354 U.S. at 198. A balancing test was also used in Branzburg v. Hayes, which involved the issue of the
claimed privilege of newsmen not t o respond t o demands of a grand jury for information. See 408 U.S. 665 (1972). In
its 5-4 decision, the Court concluded that the need of the grand jury for the information outweighed First Amendment
considerations, but there are indications in the opinion that “the infringement of protected First Amendment rights must
be no broader than necessary to achieve a permissible governmental purpose,” and that “a State’s interest must be
‘compelling’ or ‘paramount’ to justify even an indirect burden on First Amendment rights.” Id. at 699-700; see also
Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963) (applying the compelling interest test in a
legislative investigation).
422
See, e.g., Barenblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States, 354 U.S. 178 (1957); United
States v. Rumely, 345 U.S. 41 (1953); see also 4 Deschler’s Precedents, supra note 91, ch. 15, §10, n. 15 and
accompanying text.
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First Amendment as grounds for reversing a criminal contempt of Congress conviction.423
However, the Court has narrowly construed the scope of a committee’s authority so as to avoid
reaching a First Amendment issue.424 In addition, the Court has ruled in favor of a witness who
invoked his First Amendment rights in response to questioning by a state legislative committee.425
In a 1976 investigation of the unauthorized publication in the press of the report of the House
Select Committee on Intelligence, the Committee on Standards of Official Conduct subpoenaed
four news media representatives, including Daniel Schorr.426 The Standards of Official Conduct
Committee concluded that Mr. Schorr had obtained a copy of the Select Committee’s report and
had made it available for publication. Although the ethics committee found that “Mr Schorr’s role
in publishing the report was a defiant act in disregard of the expressed will of the House of
Representatives to preclude publication of highly classified national security information,” it
declined to cite him for contempt for his refusal to disclose his source.427 The desire to avoid a
clash over First Amendment rights apparently was a major factor in the committee’s decision on
the contempt matter.428
In another First Amendment dispute, the Special Subcommittee on Investigations of the House
Committee on Interstate and Foreign Commerce, in the course of its probe of allegations that
deceptive editing practices were employed in the production of the television news documentary
program The Selling of the Pentagon, subpoenaed Frank Stanton the president of CBS, directing
him to deliver to the subcommittee the “outtakes” relating to the program.429 When, on First
Amendment grounds, Stanton declined to provide the subpoenaed materials, the subcommittee
unanimously voted a contempt citation, and the full committee by a vote of 25-13 recommended
to the House that Stanton be held in contempt.430 After extensive debate, the House failed to adopt
423
Leading Cases, supra note 356, at 42; Hamilton, supra note 379, at 234. Although it was not in the criminal
contempt context, one court of appeals has upheld a witness’s First Amendment claim. In Stamler v. Willis, the Seventh
Circuit Court of Appeals ordered to trial a witness’s suit for declaratory relief against the House Un-American
Activities Committee in which it was alleged that the committee’s authorizing resolution had a “chilling effect” on
plaintiff’s First Amendment rights. See 415 F.2d 1365 (7th Cir. 1969), cert. denied, 399 U.S. 929 (1970). In other cases
for declaratory and injunctive relief brought against committees on First Amendment grounds, relief has been denied
although the courts indicated that relief could be granted if the circumstances were more compelling. See, e.g., Sanders
v. McClellan, 463 F.2d 894 (D.C. Cir. 1972); Davis v. Chord, 442 F. 2d 1207 (D.C. Cir. 1970); Ansara v. Eastland, 442
F.2d 751 (D.C. Cir. 1971). However, in Eastland v. United States Servicemen’s Fund, the Supreme Court held that the
Constitution’s Speech or Debate Clause (Art. I, Section 6, cl. 1) generally bars suits challenging the validity of
congressional subpoenas on First Amendment or other grounds. Thus, a witness generally cannot raise his
constitutional defenses until a subsequent criminal prosecution for contempt unless, in the case of a Senate committee,
the statutory civil enforcement procedure is employed. 421 U.S. 491 (1975); see also United States v. House of
Representatives, 556 F. Supp. 150 (D.D.C. 1983).
424
United States v. Rumely, 345 U.S. 41 (1953).
425
Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963). In the majority opinion, Justice
Goldberg observed that “an essential prerequisite to the validity of an investigation which intrudes into the area of
constitutionally protected rights of speech, press, association and petition [is] that the State convincingly show a
substantial relation [or nexus] between the information sought and a subject of overriding and compelling state interest.
Id. a t 546.
426
H.Rept. 94-1754, 94th Cong. 2d Sess., 6 (1976).
427
Id. at 42-43.
428
Id. at 47-48 (additional views of Representatives Spence, Teague, Hutchinson, and Flynt).
429
The outtakes were portions of the CBS film clips that were not actually broadcast. The subcommittee wanted to
compare the outtakes with the tape of the broadcast to determine if improper editing techniques had been used.
430
H.Rept. 92-349, 92d Cong., 1st Sess. (1971). The legal argument of CBS was based in part on the claim that
Congress could not constitutionally legislate on the subject of editing techniques and, therefore, the subcommittee
(continued...)
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the committee report, voting instead to recommit the matter to the committee.431 During the
debate, several Members expressed concern that approval of the contempt citation would have a
“chilling effect” on the press and would unconstitutionally involve the government in the
regulation of the press. 432
Fourth Amendment
Several opinions of the Supreme Court indicate that the Fourth Amendment’s prohibition against
unreasonable searches and seizures is applicable to congressional committees; however, there has
not been an opinion directly addressing the issue.433 It appears that there must be a legitimate
legislative or oversight-related basis for the issuance of a congressional subpoena.434 The Fourth
Amendment protects a congressional witness against a subpoena which is unreasonably broad or
burdensome.435 The Court has outlined the standard to be used in judging the reasonableness of a
congressional subpoena:
Petitioner contends that the subpoena was so broad as to constitute an unreasonable search
and seizure in violation of the Fourth Amendment .... ‘Adequacy or excess in the breath of
the subpoena are matters variable in relation to the nature, purposes, and scope of the
inquiry’ .... The subcommittee’ s inquiry here was a relative1y broad one ... and the
permissible scope of materials that could reasonably be sought was necessarily equally
broad. It was not reasonable to suppose that the subcommittee knew precisely what books
and records were kept by the Civil Rights Congress, and therefore the subpoena could only ‘
specify ... with reasonable particularity, the subjects to which the documents ... relate .... ‘The
call of the subpoena for ‘all records, correspondence and memoranda’ of the Civil Rights
Congress relating to the specified subject describes them ‘with all of the particularity the
nature of the inquiry and the [subcommittee’s] situation would permit .... ‘The description
contained in the subpoena was sufficient to enable [petitioner] to know what particular
documents were required and to select them adequately.436
If a witness has a legal objection to a subpoena duces tecum or is for some reason unable to
comply with a demand for documents, he must give the grounds for his non-compliance upon the
return of the subpoena. As the D.C. Circuit stated:
If [the witness] felt he could refuse compliance because he considered the subpoena so broad
as to constitute an unreasonable search and seizure within the prohibition of the fourth
(...continued)
lacked a valid legislative purpose for the investigation. Id. at 9.
431
See 117 CONG. REC. 23922-926, 24603-59, 24720-53 (1971).
432
Id. at 24731-732.
433
Watkins v. United States, 354 U.S. 178, 188 (1957); see also McPhaul v. United States, 364 U.S. 372 (1960).
434
A congressional subpoena may not be used in a mere “fishing expedition.” See Hearst v. Black, 87 F.2d 68, 71 (D
.C. Cir. 1936) (quoting, Federal Trade Commission v. American Tobacco Co., 264 U.S. 298, 306 (1924) (stating that
“[i]t is contrary to the first principles of justice to allow a search through all the records, relevant or irrelevant, in the
hope that something will turn up.”))); see also United States v. Groves, 188 F. Supp. 314 (W.D. Pa. 1937) (dicta); But
see Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 509 (1975), (recognizing that an investigation may
lead “up some ‘blind alleys’ and into nonproductive enterprises. To be a valid legislative inquiry there need be no
predictable end result.”).
435
McPhaul v. United States, 364 U.S. 372 (1960); see also Shelton v. United States, 404 F.2d 1292 (D.C. Cir. 1968),
cert. denied, 393 U.S. 1024 (1969).
436
McPhaul, 364 U.S. at 832.
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amendment, then to avoid contempt for complete noncompliance he was under [an]
obligation to inform the subcommittee of his position. The subcommittee would then have
had the choice of adhering to the subpoena as formulated or of meeting the objection in light
of any pertinent representations made by [the witness].437
Similarly, if a subpoenaed party is in doubt as to what records are required by a subpoena or
believes that it calls for documents not related to the investigation, he must inform the committee.
Where a witness is unable to produce documents he will not be held in contempt “unless he is
responsible for their unavailability ... or is impeding justice by not explaining what happened to
them.”438
The application of the exclusionary rule to congressional committee investigation is in some
doubt and appears to depend on the precise facts of the situation. It seems that documents which
were unlawfully seized at the direction of a congressional investigating committee may not be
admitted into evidence in a subsequent unrelated criminal prosecution because of the command of
the exclusionary rule.439 In the absence of a Supreme Court ruling, it remains unclear whether the
exclusionary rule bars the admission into evidence in a contempt prosecution of a congressional
subpoena which was issued on the basis of documents obtained by the committee following their
unlawful seizure by another investigating body (such as a state prosecutor).440
Fifth Amendment Privilege Against Self-Incrimination
Although it has never been necessary for the Supreme Court to decide the issue, in dicta it has
been indicated that the privilege against self-incrimination afforded by the Fifth Amendment is
available to a witness in a congressional investigation.441 The privilege is personal in nature,442
437
Shelton, 404 F.2d at 1299-1300; see also Leading Cases, supra note 356, at 49.
McPhaul, 364 U.S. at 382.
439
Nelson v. United States, 208 F.2d 505 (D.C. Cir.), cert. denied, 346 U.S. 827 (1953).
440
In United States v. McSurely, 473 F.2d 1178, 1194 (D.C. Cir. 1972), the court of appeals reversed contempt
convictions where the subcommittee subpoenas were based on information “derived by the subcommittee through a
previous unconstitutional search and seizure by [state] officials and the subcommittee’s own investigator.” The
decision of the court of appeals in the contempt case was rendered in December, 1972. In a civil case brought by the
criminal defendants, Alan and Margaret McSurely, against Senator McClellan and the subcommittee staff for alleged
violations of their constitutional rights by the transportation and use of the seized documents, the federal district court
in June, 1973, denied the motion of the defendants for summary judgment. While the appeal from the decision of the
district court in the civil case was pending before the court of appeals, the Supreme Court held, in Calandra v. United
States, 414 U.S. 338 (1974), that a grand jury is not precluded by the Fourth Amendment’s exclusionary rule from
questioning a witness on the basis of evidence that had been illegally seized. A divided court of appeals subsequently
held in McSurely v. McClellan, 521 F.2d 1024, 1047 (D.C. Cir. 1975), that under Calandra “a congressional committee
has the right in its investigatory capacity to use the product of a past unlawful search and seizure.”
The decision of the three-judge panel in the civil case was vacated and on rehearing by the full District of Columbia
Circuit, five judges were of the view that Calandra was applicable to the legislative sphere and another five judges
found it unnecessary to decide whether Calandra applies to committees but indicated that, even if it does not apply to
the legislative branch, the exclusionary rule may restrict a committee’s use of unlawfully seized documents if it does
not make mere “derivative use” of them but commits an independent fourth amendment violation in obtaining them.
McSurely v. McClellan, 553 F.2d 1277, 1293-94, 1317-25 (D.C. Cir. 1976) (en banc). The Supreme Court granted
certiorari in the case, 434 U.S. 888 (1977), but subsequently dismissed certiorari as improvidently granted, with no
explanation for this disposition of the case. See McAdams v. McSurely, 438 U.S. 189 (1978). Jury verdicts were
eventually returned against the Senate defendants, but were reversed in part on appeal. See 753 F.2d 88 (D.C. Cir.
1985), cert. denied, 54 U.S.L.W. 3372 (Dee. 3, 1985).
441
Watkins v. United States, 354 U.S. 178 (1957); Quinn v. United States, 349 U.S. 155 (1955).
438
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and may not be invoked on behalf of a corporation,443 small partnership,444 labor union,445 or other
“artificial” organizations.446 The privilege protects a witness against being compelled to testify
but generally not against a subpoena for existing documentary evidence.447 However, where
compliance with a subpoena duces tecum would constitute implicit testimonial authentication of
the documents produced, the privilege may apply.448
There is no required verbal formula for invoking the privilege; nor does there appear to be
necessary a warning by the committee.449 A committee should recognize any reasonable
indication, such as “the fifth amendment,” that the witness is asserting his privilege.450 Where a
committee is uncertain whether the witness is in fact invoking the privilege against selfincrimination or is claiming some other basis for declining to answer, the committee should direct
the witness to specify his privilege or objection.451
The committee can review the assertion of the privilege by a witness to determine its validity, but
the witness is not required to articulate the precise hazard that he fears. In regard to the assertion
of the privilege in judicial proceedings, the Supreme Court has advised:
To sustain the privilege, it need only be evident, from the implications of the question, in the
setting in which it is asked, that a responsive answer to the question or an explanation of why
it cannot be answered might be dangerous because injurious disclosure could result .... To
reject a claim, it should be ‘perfectly clear, from a careful consideration of all the
circumstances of the case, that the witness is mistaken, and that the answers cannot possibly
have a tendency’ to incriminate.452
The basis for asserting the privilege was elaborated upon in a lower court decision:
The privilege may only be asserted when there is reasonable apprehension on the part of the
witness that his answer would furnish some evidence upon which he could be convicted of a
criminal offense ... or which would reveal sources from which evidence could be obtained
that would lead to such conviction or to prosecution therefore ... .Once it has become
(...continued)
442
See McPhaul v. United States, 364 U.S. 372 (1960); see also McCormick, EVIDENCE §120 (Cleary ed. 1984)
[hereinafter McCormick].
443
Hale v . Henkel, 201 U.S. 43 (1906).
444
Bellis v. United States, 417 U.S. 85 (1974).
445
See United States v. White, 322 U.S. 694 (1944).
446
Bellis, 417 U.S. at 90; see also Rogers v. United States, 340 U.S. 367 (1951) (Communist Party).
447
Fisher v. United States, 425 U.S. 391, 409 (1976); Andresen v. Maryland, 427 U.S. 463 (1976). The cases
concerned business records and there may be some protection available in the case of a subpoena for personal papers.
See McCormick, supra 438 at §§126, 127.
448
United States v. Coe, 465 U.S. 605 (1984); Fisher v. United States, 425 U.S. 391 (1976). see also Curcio v. United
States, 354 U.S. 118 (1957); McCormick, supra note 438 at §126.
449
Although there is no case law on point, it seems unlikely that Miranda warnings are required. That requirement
flows from judicial concern as to the validity of confessions evoked in an environment of a police station, isolated from
public scrutiny, with the possible threat of physical and prosecutorial jeopardy; an environment clearly distinguishable
from a congressional context. See Miranda v. Arizona, 384 U.S. 436 (1966).
450
Quinn v. United States, 349 U.S. 155 (1955).
451
Emspak v. United States, 349 U.S. 190 (1955); see also Leading Cases, supra note 356 at 63.
452
Hoffman v. United States, 341 U.S. 479, 486-87 (1951).
Congressional Research Service
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Congress’s Contempt Power and the Enforcement of Congressional Subpoenas
apparent that the answers to a question would expose a witness to the danger of conviction or
prosecution, wider latitude is permitted the witness in refusing to answer other questions.453
The privilege against self-incrimination may be waived by declining to assert it, specifically
disclaiming it, or testifying on the same matters as to which the privilege is later asserted.
However, because of the importance of the privilege, a court will not construe an ambiguous
statement of a witness before a committee as a waiver.454
Where a witness asserts the privilege, the full House or the committee conducting the
investigation may seek a court order which (a) directs the witness to testify and (b) grants him
immunity against the use of his testimony, or other evidence derived from his testimony, in a
subsequent criminal prosecution.455 The immunity that is granted is “use” immunity, not
“transactional” immunity. Neither the immunized testimony that the witness gives, nor evidence
derived therefrom, may be used against him in a subsequent criminal prosecution, except one for
perjury or contempt relating to his testimony. However, he may be convicted of the crime (the
“transaction”) on the basis of other evidence.456
The application for the judicial immunity order must be approved by a majority of the House or
Senate or by a two-thirds vote of the full committee seeking the order.457 The Attorney General
must be notified at least ten days prior to the request for the order, and he can request a delay of
twenty days in issuing the order.458 Although the order to testify may be issued before the
witness’s appearance,459 it does not become legally effective until the witness has been asked the
question, invoked his privilege, and been presented with the court order.460 The role of the court
in issuing the order has been held to be ministerial and, thus, if the procedural requirements under
the immunity statute have been met, the court may not refuse to issue the order or impose
conditions on the grant of immunity.461
453
United States v. Jaffee, 98 F. Supp. 191, 193-94 (D.D.C. 1951); see also Simpson v. United States, 241 F.2d 222 (9th
Cir. 1957) (privilege inapplicable to questions seeking basic identifying information, such as the witness’s name and
address).
454
Emspak v. United States, 349 U.S. 190 (1955); see also Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
455
18 U.S.C. §§6002, 6005 (2000).
456
The constitutionality of granting a witness only use immunity rather than transactional immunity, was upheld in
Kastigar v. United States, 406 U.S. 441 (1972). In United States v. Romano, 583 F.2d 1 (1st Cir. 1978), the defendant
appealed from his conviction of several offenses on the ground, inter alia, that the prosecution’s evidence had been
derived, in part, from immunized testimony that he had given before a Senate subcommittee. Although the conviction
was affirmed, the case illustrates the difficulty that the prosecutor may have in establishing that its evidence was not
“tainted,” but rather was derived from independent sources, especially in a case where there was some cooperation in
the investigation between a committee and the Justice Department prior to the grant of immunity to testify before the
committee. See Kastigar, 406 U.S. at 461-621.
457
18 U.S.C. §6005(a) (2000).
458
However, the Justice Department may waive the notice requirement. Application of the Senate Permanent
Subcommittee on Investigations, 655 F.2d 1232, 1236 (D.C. Cir. 1980), cert. denied, 454 U.S. 1084 (1981).
459
Application of the Senate Permanent Subcommittee on Investigations, 655 F.2d at 1257.
460
See In re McElreath, 248 F.2d 612 (D.C. Cir. 1957) (en banc).
461
Application of the U.S. Senate Select Committee on Presidential Campaign Activities, 361 F. Supp. 1270 (D.D.C.
1973). In dicta, however, the court referred to the legislative history of the statutory procedure, which suggests that
although a court lacks power to review the advisability of granting immunity, a court may consider the jurisdiction of
Congress and the committee over the subject area and the relevance of the information that is sought to the committee’s
inquiry. See id. at 1278-79.
Congressional Research Service
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Congress’s Contempt Power and the Enforcement of Congressional Subpoenas
Fifth Amendment Due Process Rights
The due process clause of the Fifth Amendment requires that “the pertinency of the interrogation
to the topic under the ... committee’s inquiry must be brought home to the witness at the time the
questions are put to him.”462 “Unless the subject matter has been made to appear with
undisputable clarity, it is the duty of the investigative body, upon objection of the witness on
grounds of pertinency, to state for the record the subject under inquiry at that time and the manner
in which the propounded questions are pertinent thereto.”463 Additionally, to satisfy both the
requirement of due process as well as the statutory requirement that a refusal to answer be
“willful,” a witness should be informed of the committee’s ruling on any objections he raises or
privileges which he asserts.464
462
Deutch v. United States, 367 U.S. 456, 467-68 (1961). As the court explained in that case, there is a separate
statutory requirement of pertinency.
463
Watkins v. United States, 354 U.S. 178, 214-15 (1957).
464
Deutch v. United States, 367 U.S. 456, 467-68 (1961).
Congressional Research Service
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Congress’s Contempt Power and the Enforcement of Congressional Subpoenas
Appendix. Congressional Contempt Resolutions,
1980-Present
The tables below contain information on contempt resolutions in the House and Senate and civil
enforcement resolutions in the Senate since 1980. The tables include contextual information such
as the individuals or organizations charged, the recommending committee, resolution number, and
roll call votes related to various actions. Summarized descriptions of the allegations and
committee actions are derived from the identified House or Senate Report. CRS has attempted to
make the table as comprehensive as possible; however, some relevant citations may not have been
identified by CRS’s searches.
Table A-1. Floor Votes on Contempt Resolutions in the House of Representatives,
1980-Present
Name and
Title
O. Robert
Fordiani,
District
Representative
for
Congressman
Charles H.
Wilson
Recommending Committee and Report Excerpt
Standards of Official Conduct, H.Rept. 96-1078 (1980)
On January 2, 1980, O. Robert Fordiani, having been summoned as a witness by
the authority of the House Committee on Standards of Official Conduct
pursuant to a subpoena of the said Committee, failed to appear to give testimony
before said Committee, meeting in executive session for the purpose of
receiving testimony, concerning possible violations of House Rule XLIII, of the
Code of Official Conduct, by Representative Charles H. Wilson of California,
pursuant to the authority of House Rule X, clause 4(e)(1)(B).
Resolution and
Vote
H.Res. 743, 96th
Cong. (1980)
Agreed to by Voice
Vote on July 21,
1980. See 126 Cong.
Rec. 18,830-32
(1980)
Chairman Bennett found Fordiani’s failure to appear contemptuous, and,
thereafter, the Committee, a quorum being present, authorized its Chairman,
the Honorable Charles E. Bennett, ayes 7, nays 0, to file this report and to offer
a resolution directing the Speaker of the House to certify this report to the U.S.
Attorney for the District of Columbia to the end that Fordiani be prosecuted for
criminal contempt of Congress, pursuant to the provisions of title 2, United
States Code, Sections 192 and 194.
Anne M.
(Gorsuch)
Burford,
Administrator
of the
Environmental
Protection
Agency
Public Works and Transportation, H.Rept. 97-968 (1982)
Last month, during an ongoing investigation by the Subcommittee on
Investigations and Oversight into the functioning of the Superfund law in the face
of recurring problems of contamination of the Nation’s ground and surface
water resources by illegally spilled or disposed hazardous wastes, the
Subcommittee sought necessary information from the U.S. Environmental
Protection Agency. Anne M. Gorsuch, Administrator, had responsibility for the
administration of that law and was the custodian of the relevant documents.
Administrator Gorsuch failed to cooperate, and the Subcommittee found it
necessary to subpoena her to appear with the documents. Upon refusal to
comply with the subpoena, the Subcommittee voted to hold the Administrator in
contempt and referred the matter to the Committee on Public Works and
Transportation.
Congressional Research Service
H.Res. 632, 97th
Cong. (1982)
Agreed to in House
by Yea-Nay Vote:
259 - 105 (Record
Vote No: 472) on
December 16, 1982.
See 128 Cong. Rec.
31,746-76 (1982)
63
Congress’s Contempt Power and the Enforcement of Congressional Subpoenas
Name and
Title
Recommending Committee and Report Excerpt
Rita M.
Lavelle,
former
Assistant
Administrator
for the
Environmental
Protection
Agency
Energy and Commerce, H.Rept. 98-190 (1983)
Anne M.
(Gorsuch)
Burford,
Administrator
of the
Environmental
Protection
Agency
Public Works and Transportation (by referral), H.Rept. 98-323 (1982)
On April 26, 1983, the Committee unanimously adopted a resolution finding Ms.
Lavelle in contempt of Congress for failing to appear and testify as called for by a
subpoena authorized by the Subcommittee on Oversight and Investigations. As
the senior official who was, until recently, in charge of the EPA’s hazardous
waste programs, Ms. Lavelle stands in a unique position to respond to the
serious concerns of the Subcommittee—and of the Congress and the American
people—about the agency’s discharge of its duty to protect the public from
hazardous wastes, to clean them up promptly, using the $1.6 billion Superfund,
and to secure reimbursement from those responsible.
The resolution of contempt adopted by the House of Representatives in the 97th
Congress arose out of the issuance of a Subcommittee subpoena for Agency
records in November 1982, necessitated by the EPA’s refusal to make available
to the Subcommittee pertinent and crucial information documenting how the
Agency was carrying out its responsibilities under … the so-called Superfund
statute, which provides for the cleaning up of abandoned hazardous chemical
waste dumps. The EPA Administrator’s refusal to comply with the subpoena led
ultimately to the House’s citation of contempt.
Resolution and
Vote
H.Res. 200, 98th
Cong. (1983)
Resolution Agreed to
in House by Yea-Nay
Vote: 413 - 0
(Record Vote No:
127) on May 18,
1983. See 129 Cong.
Rec. 12,717-25
(1983)
H.Res. 180, 98th
Cong. (1983)
Resolution Agreed to
in House (Amended)
by Voice Vote on
August 3, 1983. See
129 Cong. Rec.
22,692-98 (1983)
The Committee’s reporting of House Resolution 180 reflects the fact that the
Subcommittee on Investigations and Oversight now has that information … and
can now discharge its investigative duties and assist the Congress, through the
oversight process, in carrying out its legislative responsibilities.
Ralph
Bernstein,
real estate
investor
Joseph
Bernstein,
partner at
Bernstein,
Carter & Dayo
Foreign Affairs, H.Rept. 99-462 (1986)
In closed hearings on December 11 and 12, 1985, the Subcommittee on Asian
and Pacific Affairs questioned two witnesses, Ralph Bernstein, a nonlawyer who
works extensively in real estate investment and his brother Joseph Bernstein, a
lawyer who assists with that investment. The questions concerned investment
work allegedly performed by them on behalf of President Ferdinand Marcos of
the Philippines and his wife, Imelda Marcos. That Subcommittee was pursuing
allegations of vast holdings by the Marcoses in the United States, part of a flight
of capital from the Philippines that has been reportedly estimated at over $10
billion in recent years.
The two witnesses, alleged to be at the center of a web of dummy corporations
shielding the Marcoses’ holdings, firmly refused to answer the Subcommittee’s
questions about their investment work, or even to state whether they knew or
had met the Marcoses. Their refusals to answer denied the Subcommittee
information that was crucial to its investigation.
H.Res. 384, 99th
Cong. (1986)
Resolution Agreed to
in House to the First
Resolving Clause by
Yea-Nay Vote: 352 34 (Record Vote No:
34) and the Second
Resolving Clause by
Yea-Nay Vote: 34550 (Record Vote No:
35) on February 27,
1986. See 132 Cong.
Rec. 3,028-62 (1986)
Accordingly, the Subcommittee voted to report the contempts to the
Committee, and the Committee voted to report to the House a contempt
resolution for the Bernsteins.
Harriet
Miers, White
House
Counsel
Joshua
Bolten,
White House
Chief of Staff
Judiciary, H.Rept. 110-423 (2007)
Beginning in March 2007, the House Judiciary Committee and its Subcommittee
on Commercial and Administrative Law have held a number of hearings on the
U.S. Attorney terminations and related issues.
On March 21, 2007, the Subcommittee on Commercial and Administrative Law
authorized Chairman Conyers to issue subpoenas to J. Scott Jennings, Special
Assistant to the President, Office of Political Affairs; William Kelley, Deputy
White House Counsel; Harriet Miers, former White House Counsel; Karl Rove,
Deputy Chief of Staff and Senior Advisor to the President; Joshua Bolten, White
House Chief of Staff; and Fred Fielding, White House Counsel, to obtain
Congressional Research Service
H.Res. 979, 110th
Cong. (2008)
Pursuant to the
provisions of H.Res.
982, H.Res. 979 was
considered passed by
the House on
February 14, 2008.
154 Cong. Rec.
2,175-85 (2008)
64
Congress’s Contempt Power and the Enforcement of Congressional Subpoenas
Name and
Title
Recommending Committee and Report Excerpt
Resolution and
Vote
testimony and documents. On June 13, 2007, Chairman Conyers and Senate
Judiciary Committee Chairman Patrick Leahy issued subpoenas to Joshua Bolten,
White House Chief of Staff, or appropriate custodian, for relevant White House
documents. On June 28, 2007, White House Counsel Fred Fielding wrote that
the White House would refuse to produce any documents pursuant to the
subpoena issued to Mr. Bolten based on executive privilege.
Former White House Counsel Harriet Miers refused to comply with a subpoena
requiring her appearance before the Subcommittee on July 12, 2007. Ms. Miers
not only failed to provide testimony or documents, but she also failed even to
appear for the hearing. Subcommittee Chair Sanchez proceeded to overrule Ms.
Miers’s claims of immunity and privilege and her ruling was sustained by
Subcommittee members in a recorded vote of 7–5.
The Subcommittee met on July 19, Subcommittee Chair Sanchez ruled against
the privilege claims with respect to Mr. Bolten’s refusal to produce any
documents pursuant to the subpoena issued to him (as now reflected in the
fourth count of the Resolution), and that ruling was upheld by a 7–3 vote.
Source: Information compiled from committee reports, hearings, the Congressional Record and news sources by
CRS using LexisNexis, ProQuest Congressional, ProQuest Historical Newspapers, and the Legislative
Information Service (LIS) databases.
Table A-2. Other Committee Actions on Contempt Resolutions in the
House of Representatives, 1980-Present
Name and
Title
Charles W.
Duncan,
Secretary of
Energy
Recommending Committee/Subcommittee and Document Excerpt
Government Operations/Subcommittee on Environment, Energy,
and Natural Resources, H.Rept. 96-1099 (1980)
On April 8, the subcommittee requested in writing two categories of DOE
documents related to the petroleum import fee: “(t)he final version or prior
drafts of all memoranda, letters, studies, briefing papers or any other
documents prepared” by members of the staffs of DOE’s Economic
Regulatory Administration and Office of Policy Evaluation relating to the
import fee, and “(a)ny other documents pertaining to the role played by DOE
in the President’s decision to impose an import fee.”
Last Action
The subcommittee
Chairman
recommended that the
contempt of Congress
be purged based on the
subsequent production
of documents. See
H.Rept. 96-1099 at 29
Secretary Duncan and the Department produced some documents to the
subcommittee for the first time on April 23, along with the letter of that date
setting forth certain privilege claims.
The subcommittee reiterated its rejection of the Administration’s position
regarding congressional access to these documents and voted unanimously to
renew the subpoena.
At the hearing of April 29, the subcommittee voted unanimously to hold
Secretary Duncan in contempt for his sustained failure to produce the
subpoenaed documents.
Nelson
Bunker Hunt,
silver trader
W. Herbert
Hunt, silver
trader
Government Operations/Subcommittee on Commerce, Consumer
and Monetary Affairs, Silver Prices and the Adequacy of Federal Actions in the
Marketplace, 1979-80 Before the Subcomm. on Commerce, Consumer, and
Monetary Affairs of the H. Comm. of Government Operations, 96th Cong. (1980)
On April 22, the Commerce, Consumer and Monetary Affairs Subcommittee
unanimously authorized the issuance of subpoenas directing Nelson Bunker
Hunt and William Herbert Hunt to appear before the subcommittee in
connection with its investigation into the adequacy of the Federal response to
Congressional Research Service
The Hunts requested
an opportunity to
appear and the
subcommittee
withdrew its contempt
recommendation. See
Silver Prices hearing,
Letter from the
65
Congress’s Contempt Power and the Enforcement of Congressional Subpoenas
Name and
Title
Recommending Committee/Subcommittee and Document Excerpt
recent events in the silver and related financial markets. The subpoenas were
authorized after Messers. Hunt refused an April 7 written request to appear
voluntarily before the subcommittee.
Last Action
Subcommittee
Chairman, at 459
Notwithstanding the command of the subpoenas, the Hunts failed to appear.
At a meeting of the subcommittee on Tuesday, April 29, 1980, the
subcommittee, by a vote of 6 ayes, 0 nays, voted to recommend that Messrs.
Hunt be held in contempt of Congress for failure to appear on the return
date of the subpoena.
Nicholas
Gouletas,
Chairman of
American
Invsco Corp.
Government Operations/Subcommittee on Commerce, Consumer,
and Monetary Affairs, 126 Cong. Rec. D1515 (daily ed. Dec. 1, 1980)
The Subcommittee on Commerce, Consumer, and Monetary Affairs voted
contempt citation against Nicholas Gouletas (American Invsco Corp.) for
failure to produce documents required by committee subpoena.
Condominium and Cooperative Conversion: The Federal Response Before a
Subcomm. of the H. Comm. of Government Operations, Part 1, 97th Cong. (1980)
The subcommittee and
the full committee
agreed to accept less
material than was in the
original subpoena. See
Condominium hearing at
822
The Subcommittee held hearings into the public policy consequences of the
national condominium and cooperative conversation trend, including an
examination of the manner in which Federal agency policies, practices, and
procedures impact this trend. In order to test the effectiveness, efficiency, and
effects of Federal programs and practices, the Subcommittee, among other
things, studied the conversation activities of American Invsco and other
corporations.
James B.
Edwards,
Secretary of
Energy
Government Operations/Subcommittee on Environment, Energy,
and Natural Resources, H.Rept. 97-994 (1982)
In June of 1981, the Subcommittee began an investigation of the negotiation
by the Department of Energy of two financial assistance packages under DPA
[the Defense Production Act] for commercial-scale synthetic fuels plants. The
inquiry was initiated after reports were received that the department was
negotiating contracts with terms that were very favorable to the private
companies. One of the contracts was with Union Oil Co., the nation’s 15th
largest oil company, and another was with TOSCO, which was in partnership
with Exxon, the nation’s largest oil company.
On July 29, Mr.
Edwards signed the
Union Oil contract and
the documents were
produced to the
Subcommittee. H.Rept.
97-994 at 187
DOE refused to give the Subcommittee any information about the contracts,
claiming that while in negotiation they could not be discussed with Congress.
On June 24, 1981, the Subcommittee voted to subpoena documents relating
to the Union contract from the department.
DOE provided information in six areas of the Union contract and also gave
the Subcommittee staff additional briefings. However, because of his refusal to
produce the requested documents, Secretary Edwards was held in contempt
by the Subcommittee on July 23, 1981.
James G.
Watt,
Secretary of
the
Department of
the Interior
Energy & Commerce/Subcommittee on Oversight and
Investigations, H.Rept. 97-898 (1982)
During an investigation into the functioning of the Mineral Lands Leasing Act,
the Subcommittee sought information from the Department of the Interior.
Secretary Watt was the custodian of relevant documents. When Secretary
Watt failed to cooperate, the Subcommittee found it necessary to subpoena
the documents. This led to an assertion of executive privilege on October 14,
1981 by the President and a further refusal to provide the requested material.
In early February, the Subcommittee voted to hold Secretary Watt in
contempt and referred the matter to the Committee on Energy and
Commerce. On February 25th, the Committee passed a resolution to report
Congressional Research Service
Report on contempt of
Congress issued by
committee.
Documents were
produced and the
Committee did not
press the resolution to
cite the Secretary for
contempt of the
House.
66
Congress’s Contempt Power and the Enforcement of Congressional Subpoenas
Name and
Title
Recommending Committee/Subcommittee and Document Excerpt
Last Action
the Secretary’s refusal to comply with the Subcommittee’s subpoena to the
House with the recommendation that he be cited for contempt of the House
of Representatives.
John M.
Quinn, White
House Counsel
David
Watkins,
former White
House official
Matthew
Moore, former
White House
official
Government Reform and Oversight, H.Rept. 104-598 (1996)
Since the controversial firings of the longtime White House Travel Office
employees, the history of the investigations into what has become known as
“Travelgate" has been one of a White House intent on keeping investigators
at bay and relevant documents under wraps. While this Committee has
succeeded in obtaining far more information and records than has any
previous investigation into the Travel Office firings, the record is still
incomplete because of the insistence of the President to withhold documents
from the American public by taking the extraordinary step of invoking an
undefined, vague, and ultimately ineffective protective assertion of executive
privilege.
The subpoenaed records were necessary for the Committee to resolve by
direct factual evidence, fundamental factual questions relating to the actions,
direction, knowledge, recommendations, or approval of actions by individuals
in the White House, in responding to the allegations about the Travel Office
employees as well as the subsequent investigations into the White House
Travel Office matter.
Report on contempt of
Congress issued by
committee.
On May 30, 1996, the
day on which the
contempt resolution
was scheduled for a
vote on the floor of the
House, the White
House produced 1,000
documents to the
committee. In the wake
of this production, the
committee postponed
the contempt vote on
the floor. See H.Rept.
104-874 at 47 (1997)
The issuance of subpoenas was not sufficient to ensure the production of all
relevant records. Unfortunately, it is necessary to take the serious step of
holding parties who fail to produce requested documents in contempt.
Accordingly, the Committee voted to report to the House a contempt
resolution for John M. Quinn, David Watkins, and Matthew Moore.
Janet Reno,
Attorney
General of the
United States
Government Reform and Oversight, H.Rept. 105-728 (1998)
On August 6, 1998, the Committee on Government Reform and Oversight,
by a vote of 24 to 19, adopted the following report, including the following
resolution, recommending to the House of Representatives that Attorney
General Janet Reno be cited for contempt of Congress.
The Committee has investigated allegations that the Justice Department failed
adequately to investigate and prosecute a number of cases involving major
Democratic National Committee fundraisers and donors.
Report on contempt of
Congress issued by
committee.
Contempt report not
taken up on the floor
before the end of the
105th Congress. See
H.Rept. 106-1027 at
129 (2000)
In July 1998, the Committee subpoenaed two memoranda prepared by the
FBI Director, Louis Freeh, and the lead attorney for the Justice Department
Campaign Finance Task Force, Charles La Bella. The Committee has a need to
review these documents as part of its oversight of the Justice Department’s
campaign finance investigation.
Chairman Burton issued a subpoena for these two memoranda. However, the
Attorney General failed to comply with that subpoena. Therefore, the
Committee voted to approve the contempt of Congress report by a vote of
24 to 19.
Congressional Research Service
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Congress’s Contempt Power and the Enforcement of Congressional Subpoenas
Name and
Title
Franklin L.
Haney,
Franklin L.
Haney
Company,
Building
Finance
Company of
Tennessee,
Tower
Associates II,
Inc.
Recommending Committee/Subcommittee and Document Excerpt
Commerce/Subcommittee on Oversight and Investigations, H.Rept.
105-792 (1998)
After five months of attempting to gain documents and other information
voluntarily, the Subcommittee on Oversight and Investigations of the
Committee on Commerce voted on April 30, 1998, to authorize the issuance
of subpoenas in furtherance of the Committee’s investigation into the
circumstances surrounding the planned relocation of the Federal
Communications Commission (FCC) to the Portals - a relocation that has
become embroiled in controversy over the possible use of improper or illegal
influence by certain key figures in the $400 million deal. Pursuant to that
authorization, Commerce Committee Chairman Tom Bliley signed and had
served, on June 4, 1998, four subpoenas demanding that Franklin L. Haney whose company Tower Associates II, Inc., is a general partner in the
partnership that owns the Portals buildings - and three companies under his
control produce specified documents before the Subcommittee at its business
meeting on June 17, 1998.
Last Action
Report on contempt of
Congress issued by
committee.
Documents were
produced. See Staff of
Subcomm. on
Oversight and
Investigations, 105th
Cong., Portals and
Related Matters 69
(Comm. Print 1998)
After debate and due consideration of these objections, and based on legal
counsel provided by the Congressional Research Service, the House General
Counsel’s Office, and Committee counsel, the Subcommittee overruled all of
Mr. Haney’s objections. When Mr. Haney’s attorney stated that his client
would not comply at that time with the Subcommittee’s ruling, the
Subcommittee proceeded to hold Mr. Haney in contempt of Congress, and
directed the Subcommittee chairman to report and refer the matter to the
full Committee.
Project on
Government
Oversight
(POGO)
Henry M.
Banta,
Director and
former
Chairman of
the Board of
POGO
Robert A.
Berman,
Department of
the Interior
employee
Keith Rutter,
Assistant
Executive
Director of
POGO
Danielle
Brian
Stockton,
Executive
Director of
POGO
Resources, H.Rept. 106-801 (2000)
Since May 1999, the Committee on Resources has been conducting an
oversight review of payments made by a private corporation to two federal
employees with duties affecting public lands.
During the course of our work, many witnesses refused voluntary interviews
and requests for records. In June 1999, the Committee authorized the
Chairman to issue subpoenas in this oversight project. Chairman Young
thereupon issued subpoenas requiring the production of records from various
parties. In spite of the plain requirements of one subpoena, certain documents
were heavily redacted. In February 2000, that same party and two others
announced publicly that they intended to refuse production under subpoenas
issued on February 17, 2000. Further subpoenas were also met with defiance.
H. Res. 657, 106th
Cong. (2000)
Resolution withdrawn
pursuant to clause 2,
rule XVI on October
27, 2000. See 146
Cong. Rec. 25,201-31
(2000)
On May 4, 2000, the Subcommittee on Energy and Mineral Resources began a
series of hearings in this matter. Because many important witnesses had
refused requests for interviews, I [Chairman Young] issued subpoenas
requiring appearances at four hearings. During the course of these hearings,
four witnesses refused to answer questions ruled by the Subcommittee to be
pertinent and ordered to be answered.
The Committee on Resources reports these facts to the House with a
recommended resolution authorizing you to report the facts of these refusals
to the United States Attorney for the District of Columbia. If the House
accepts the Committee’s recommendation and adopts our report, upon
certification by you, the United States Attorney would ask a grand jury to
consider contempt of Congress charges against these parties.
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Name and
Title
Miles Jones,
doctor and
founder of
Opening Lines
Recommending Committee/Subcommittee and Document Excerpt
Commerce, H.Rept. 106-527 (2000)
On November 9, 1999, the House of Representatives adopted a resolution
calling upon the Congress to conduct an investigation into whether human
fetuses and fetal tissue are being bought and sold in violation of Federal law
(H. Res. 350).
Following the passage of the House resolution, the Committee on Commerce
launched an investigation into whether Opening Lines or others involved in
procuring, selling, or buying fetal tissue were operating in compliance with
Federal law. As part of this investigation, Chairman Bliley wrote to Dr. Miles
Jones of Opening Lines on two separate occasions requesting that he respond
to specific questions relating to Opening Lines’ business practices. Dr. Jones
failed to respond to either letter.
Given these facts and Dr. Jones’s failure to respond to voluntary Committee
requests for information, Chairman Bliley authorized and issued, a subpoena
ad testificandum on February 29, 2000, commanding Dr. Jones’s appearance
and testimony at a hearing of the Subcommittee on Health and Environment
on March 9, 2000.
Following opening statements from the Members of the Subcommittee,
Subcommittee Chairman Michael Bilirakis called the scheduled witnesses to
the witness table, but Dr. Jones did not appear as commanded by his
subpoena.
Last Action
Report on contempt of
Congress issued by
committee.
Dr. Jones subsequently
agreed to testify before
the Committee, so the
Chairman did not
forward the Report on
contempt to the full
House. However, due
to concerns raised by
the FBI—which
launched a criminal
inquiry into Dr. Jones’s
activities—the
Committee did not recall Dr. Jones to testify.
See H.Rept. 106-1047
at 162 (2001)
Chairman Bilirakis recessed the hearing and convened a business meeting of
the subcommittee. Chairman Bliley introduced a resolution finding that Dr.
Jones was lawfully served with a subpoena and finding Dr. Jones in contempt
of Congress for his contumacious failure to appear as commanded. The
resolution was approved by a record vote of 27 ayes and no nays.
Karl Rove,
former White
House Advisor
Judiciary, H.Rept. 110-847 (2008)
Beginning in March 2007, the House Judiciary Committee and its
Subcommittee on Commercial and Administrative Law (CAL Subcommittee)
held a number of hearings on the alleged politicization of the Justice
Department, including the termination of U.S. Attorneys in 2006, allegations
of selective prosecution, and related issues.
Because Mr. Rove was considered a central witness who could provide
information that was unavailable through any other source, in March 2007
Chairman John Conyers, Jr., and CAL Subcommittee Chair Linda Sanchez
sought Mr. Rove's voluntary compliance with the Committee's investigation,
along with that of other witnesses, by letter to White House Counsel Fred
Fielding.
In response, Mr. Fielding explained that he was prepared to make Mr. Rove
and other White House officials available for interviews with the House and
Senate Judiciary Committees on a joint basis; but his offer was conditioned on
various preconditions and scope restrictions.
On March 21, 2007, the CAL Subcommittee authorized Chairman Conyers to
issue subpoenas to Karl Rove and other present and former White House
officials to obtain testimony and documents.
Former White House Deputy Chief of Staff Karl Rove refused to comply with
a subpoena requiring his appearance before the CAL Subcommittee on July
10, 2008, failing to appear for the hearing to answer questions.
Report on contempt of
Congress issued by
committee.
In March 2009, the
Committee reached an
agreement with the
former Administration
to resolve the
Committee’s lawsuit
and contempt citations.
Pursuant to that
agreement, the
Committee proceeded
over the next several
months to receive
access to previously
subpoenaed documents
and to obtain the onthe-record testimony
of former White House
officials Harriet Miers
and Karl Rove. See
H.Rept. 111-712 at 17
(2011)
On July 10, 2008, CAL Subcommittee Chair Sanchez proceeded to overrule
the claims of immunity and privilege with respect to Mr. Rove, and the ruling
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Congress’s Contempt Power and the Enforcement of Congressional Subpoenas
Name and
Title
Recommending Committee/Subcommittee and Document Excerpt
Last Action
was sustained by CAL Subcommittee Members in a recorded vote of 7-1.
On July 30, 2008, the Committee met in open session and ordered [H.Rept.
110-847, resolution recommending that the House of Representatives find
Karl Rove in contempt of Congress for refusal to comply with a subpoena
duly issued by the Committee on the Judiciary] favorably reported, without
amendment, by a vote of 20 to 14.
Source: Information compiled from committee reports, hearings, the Congressional Record and news sources by
CRS using LexisNexis, ProQuest Congressional, ProQuest Historical Newspapers, and the Legislative
Information Service (LIS) databases.
Table A-3. Floor Votes on Civil Enforcement Resolutions in the Senate, 1980-Present
Name and
Title
William
Cammisano,
Prisoner
Recommending Committee/Subcommittee and Document Excerpt
Governmental Affairs, S.Rept. 96-899 (1980)
Pursuant to Senate Resolution 361, the Senate Permanent Subcommittee on
Investigations voted to hold a hearing on or after April 28, 1980 concerning
organized crime and its use of violence. The Subcommittee also voted to
recommend to the Committee that an immunity order be obtained for William
Cammisano. On April 3, the Chairman of the Subcommittee issued a subpoena
for William Cammisano, which was served on him at Springfield Medical
Center, Missouri, on April 6. On April 10, the Subcommittee applied for a
Writ of Habeas Corpus Ad Testificandum in order to summon Cammisano,
who as a prisoner was in the custody of the United States; the writ was issued
that day.
Last Action
S. Res. 502, 96th
Cong. (1980)
Agreed to in Senate
with a preamble by
Voice Vote on
September 15, 1980.
See 126 Cong. Rec.
25,284 (1980)
On May 1, 1980, William Cammisano appeared before the Subcommittee in its
fourth day of hearings. He refused, even after immunization, to answer any
substantive questions.
On August 5, 1980, the Committee on Government Affairs met and approved
a resolution directing the Senate Legal Counsel to bring a civil action to
enforce the subpoena of the Senate Permanent Subcommittee on
Investigations to William Cammisano. A quorum for the purposes of
transacting business, voted to approve the resolution—9 Senators. One vote in
favor of the resolution was reported by proxy.
Anthony J.
Accardo,
Member of
Organized
Crime in
Chicago
Governmental Affairs, S.Rept. 98-354 (1984)
On November 17, 1983, Anthony J. Accardo, an alleged member of organized
crime in Chicago, appeared under subpoena at a hearing of the Permanent
Subcommittee on Investigation on labor racketeering. Mr. Accardo was
immunized under court order, but nevertheless refused to answer the
Subcommittee’s substantive questions. The Subcommittee and the Committee
on Governmental Affairs recommended that the Senate authorize a civil
enforcement action to require Mr. Accardo to testify.
S. Res. 293, 98th
Cong. (1984)
Agreed to in Senate
with a preamble by
Voice Vote on
February 23, 1984. See
130 Cong. Rec. 3,139
(1984)
On February 9, 1984, the resolution was approved by vote of nine members of
the Permanent Subcommittee on Investigation.
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Congress’s Contempt Power and the Enforcement of Congressional Subpoenas
Name and
Title
William A.
Borders, Jr.,
Washington,
D.C. Attorney
Recommending Committee/Subcommittee and Document Excerpt
Impeachment Trial, S.Rept. 101-98 (1989)
On July 24 and 27, 1989, William A. Borders, Jr., appeared under subpoena
before the Impeachment Trial Committee on the Articles Against Judge Alcee
L. Hastings, but refused to answer the Committee’s questions. Mr. Borders
was a central figure in the Articles of Impeachment. The Committee
recommended that the Senate direct the Senate Legal Counsel to bring a civil
action to require Mr. Borders to testify on facts that are pertinent to the
Articles of Impeachment.
Last Action
S. Res. 162, 101st
Cong. (1989)
Agreed to in Senate
with a preamble by
Voice Vote on August
3, 1989. See 135 Cong.
Rec. 18,475 (1989)
The record of the roll call vote of the Impeachment Trial Committee on the
Articles Against Judge Alcee L. Hastings to report the original resolution
favorably was as follows: Yeas-12 and Nays-0.
Senator Bob
Packwood
Select Committee on Ethics, S.Rept. 103-164 (1993)
On March 29, 1993 and July 16, 1993, the Committee requested that Senator
Packwood produce to the Committee documents relevant to the Committee’s
preliminary inquiry into allegations of sexual misconduct and intimidation of
witnesses by Senator Packwood.
During a deposition of Senator Bob Packwood on October 5 and 6, 1993, in
connection with the Committee’s preliminary inquiry into allegation of sexual
misconduct and intimidation of witnesses by Senator Packwood, it became
apparent that Senator Packwood’s diaries covering 1969 to the present, and
which had to been produced to the Committee in response to its two
document requests, contained information relevant to the Committee’s
inquiry.
S. Res.153, 103rd
Cong. (1993)
Agreed to in Senate
with a preamble by
Yea-Nay Vote: 94-6
(Record Vote No:
348) on November 2,
1993. See 139 Cong.
Rec. 27,031 (1993)
After much discussion and negotiation between Senator Packwood and his
attorneys, and the Committee, Senator Packwood agreed to produce his
diaries for review by the Committee. As the Committee’s review proceeded
Senator Packwood refused to produce additional diaries, until he be allowed to
mask additional private and personal information in the diaries, in violation of
the original agreement.
In lieu of issuing a subpoena, the Committee offered a compromise. Senator
Packwood refused to produce his diaries under the terms of this proposed
compromise.
On October 20, 1993, the Committee voted to authorize the issuance of a
subpoena to Senator Bob Packwood, requiring him to produce his daily diaries
for the years 1989 to the present.
On October 21, the Committee voted to recommend that the Senate Legal
counsel bring a civil law suit to enforce the Committee’s subpoena: Yeas-6 and
Nays-0.
William H.
Kennedy, III,
Former
Associate
Counsel to
President
Clinton
Special Committee to Investigate Whitewater Development
Corporation and Related Matters, S.Rept. 104-191 (1995)
S. Res. 199, 104th
Cong. (1995)
On December 8, 1995, the Committee issued a subpoena to William H.
Kennedy, III, former Associate Counsel to the President and now of counsel to
the Rose Law Firm of Little Rock, Arkansas, to produce notes that he took at a
meeting held on November 5, 1993, at the law firm of Williams & Connolly.
The purpose of this meeting, which was attended by both personal counsel for
the President and Mrs. Clinton and by White House officials, was to discuss
Whitewater Development Corporation (“Whitewater”) and related matters.
Agreed to in Senate
with an amendment
and an amendment to
the Title and an
amended preamble by
Yea-Nay Vote: 51-45
(Record Vote No:
610) on December 20,
1995. See 141 Cong.
Rec. 37,761 (1995)
On December 8, 1995, the Committee issued a subpoena to Mr. Kennedy
directing him to “[p]roduce any and all documents, including but not limited to,
notes, transcripts, memoranda, or recordings, reflecting, referring or relating
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Congress’s Contempt Power and the Enforcement of Congressional Subpoenas
Name and
Title
Recommending Committee/Subcommittee and Document Excerpt
Last Action
to a November 5, 1993 meeting attended by William Kennedy at the offices of
Williams & Connolly.” The Committee advised Mr. Kennedy that, if he had
objections to the subpoena, he was invited to submit a legal memorandum to
the Committee by December 12, 1995.
On December 18, 1995, the Committee received a letter indicating that Mr.
Kennedy had declined to comply with the Committee’s December 15
subpoena. That same day, the Chairman of the Committee overruled the
objections to the subpoena and ordered and directed Mr. Kennedy to produce
the subpoenaed documents by 3:00 p.m. the following day. Mr. Kennedy did
not comply with this order.
Accordingly, the Committee recommended that the Senate authorize a civil
enforcement proceeding to compel Mr. Kennedy to comply with the
Committee's subpoena.
The record of the roll call vote of the Special Committee to Investigate
Whitewater Development Corporation and Related Matters to report the
original resolution favorably was as follows: Yeas-10 and Nays-8.
Source: Information compiled from committee reports, hearings, the Congressional Record and news sources by
CRS using LexisNexis, ProQuest Congressional, ProQuest Historical Newspapers, and the Legislative
Information Service (LIS) databases.
Table A-4. Other Committee Actions on Contempt Resolutions in the Senate,
1980-Present
Name and
Title
William
French
Smith,
Attorney
General
Recommending Committee/Subcommittee and Document Excerpt
Judiciary. Smith Cited for Contempt of Congress, Facts on File World News
Digest, Nov. 4, 1984, p. 812 F2.
On October 31, 1984 the Senate Judiciary Committee’s Subcommittee on
International Trade, Finance, and Security Economics cited Attorney General
William French Smith for contempt of Congress for refusing to produce Justice
Department documents on an investigation of General Dynamics Corp.
Last Action
Contempt citation
dated October 31,
1984.
The documents pertained to a 1982 decision by the department to close a
fraud probe of cost overruns on Navy nuclear attack submarines built by the
Electric Boat Division of General Dynamics during the 1970s. A separate
Subcommittee had previously voted to subpoena department records related
to the decision.
Assistant Attorney General Stephen S. Trott argued that the material was
confidential because the General Dynamics investigation had been reopened by
the department.
Under congressional rules, the contempt citation would not become valid until
approved by the full Judiciary Committee and passed as a resolution on the
Senate floor.
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Congress’s Contempt Power and the Enforcement of Congressional Subpoenas
Name and
Title
Joshua
Bolten,
White House
Chief of Staff
Karl Rove,
Deputy Chief
of Staff
Recommending Committee/Subcommittee and Document Excerpt
Judiciary, S.Rept. 110-522 (2008)
The Committee on the Judiciary, reported favorably on original resolutions (S.
Res. 707) authorizing the President of the Senate to certify the facts of the
failure of Joshua Bolten, as the Custodian of Records at the White House, to
appear before the Committee on the Judiciary and produce documents as
required by Committee subpoena, and (S. Res. 708) authorizing the President
of the Senate to certify the facts of the failure of Karl Rove to appear and
testify before the Committee on the Judiciary and to produce documents as
required by Committee subpoena, and recommends that the resolutions do
pass.
Last Action
S. Res. 707, 110th
Cong. (2007)
S. Res. 708, 110th
Cong. (2007)
Placed on Senate
Legislative Calendar
under General Orders
on November 19,
2008. See 154 Cong.
Rec. S10,660 (2007)
Since the beginning of the 110th Congress, the Judiciary Committee had
conducted an investigation into the unprecedented mass firings of Federal
prosecutors by those in the administration of the President who appointed
them.
The Committee’s attempted to obtain information from the White House, first
requested voluntarily and later legally compelled by subpoena. In the process,
the White House asserted blanket claims of executive privilege, and claims of
absolute immunity, to block current and former officials from testifying and
producing documents in compliance with the Committee's subpoenas.
On November 29, 2007, Chairman Leahy ruled that the White House's claims
of executive privilege and immunity were not legally valid to excuse current
and former White House employees from appearing, testifying and producing
documents related to this investigation. Accordingly, Chairman Leahy directed
Karl Rove and White House Chief of Staff Joshua Bolten to comply
immediately with the Committee's subpoenas by producing documents and
testimony. They failed to do so, and on December 13, 2007, a bipartisan
majority of the Committee voted to report favorably resolutions finding Mr.
Rove and Mr. Bolten in contempt of Congress.
The Senate Judiciary Committee considered the resolutions on December 13,
2007. After debate, the Committee agreed to report the resolutions favorably
to the Senate by the following vote: Yeas–12 and Nays-7.
Source: Information compiled from committee reports, hearings, the Congressional Record and news sources by
CRS using LexisNexis, ProQuest Congressional, ProQuest Historical Newspapers, and the Legislative
Information Service (LIS) databases.
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Congress’s Contempt Power and the Enforcement of Congressional Subpoenas
Author Contact Information
Todd Garvey
Legislative Attorney
tgarvey@crs.loc.gov, 7-0174
Alissa M. Dolan
Legislative Attorney
adolan@crs.loc.gov, 7-8433
Acknowledgments
Julia Taylor and Cassandra Foley, Law Librarians in the Knowledge Services Group, provided research
assistance for the Appendix of this report.
Over time, authors of various versions of this report include the following Legislative Attorneys: Charles
Doyle, Jay R. Shampansky, Morton Rosenberg, T. J. Halstead, and Todd B. Tatelman.
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