Order Code RL34097
Congress’s Contempt Power: Law, History,
Practice, and Procedure
July 24, 2007
Morton Rosenberg
Specialist in American Public Law
American Law Division
Todd B. Tatelman
Legislative Attorney
American Law Division

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Congress’s Contempt Power: Law, History, Practice,
and Procedure
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 the contemnor (criminal contempt),
and/or to remove the obstruction (civil contempt). Although arguably any action that
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.

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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

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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. Kliendienst, 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,
(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
4 (...continued)
JAMES HAMILTON, THE POWER TO PROBE: A STUDY OF CONGRESSIONAL INVESTIGATIONS,
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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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.”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 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
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 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.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
adjournment.55
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 one-
third 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-at-
Arms 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 5 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. No. 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 comtemnor 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).

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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.R. 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).

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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).

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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.R. Rept. No. 98-323, 98th Cong., 1st Sess., 48-49 (1983). Of course,
(continued...)

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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)
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).
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.R.
(continued...)

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CRS-28
direction of President Reagan, EPA Adminstrator 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)
Rept. 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.

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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, Pub. L. No. 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, Pub. L. No. 103-283 § 207(2), 108 Stat. 1423, 1440 (1994)
(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 Ant-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)
(amending 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 attorney-
client 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.R. Rept. No. 684, 29th Cong., 1st Sess., 8-11 (1846)).
197 Id. (citing H.R. Rept. No. 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) and
Attorney General Janet Reno (1998). In every instance, save for John M. Quinn,200
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.201
Civil Contempt
Civil Contempt in the Senate. As an alternative to both the inherent
contempt power of each House and the criminal contempt statutes,202 in 1978
Congress enacted a civil contempt procedure,203 which is applicable only to the
198 Id. (citing H.R. Rept. No. 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 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.
201 See Fisher, supra note 169 at 111-34.
202 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.
203 Ethics in Government Act of 1978, Pub. L. No. 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)).

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Senate.204 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.205
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.”206 It is solely within the discretion of the Senate whether or not to use such
a two-step enforcement process.207
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.208 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,209 “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.210 If the individual still refuses to comply, he
204 The conference report accompanying the legislation which established then procedure
explained that the relevant House connuittees had not yet considered the proposal for
judicial enforcement of House subpoenas. H.R. Rept. No. 95-1756, 95th Cong., 2d Sess., 80
(1978).
205 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).
206 S. Rept. No. 95-170, 95th Cong., 1st Sess., 89 (1977).
207 Id. at 90.
208 Id. at 4.
209 See U.S. CONST. Art. 1, § 6, cl. 3.
210 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,211 with
sanctions being imposed to coerce their compliance.212
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,213 this
procedure gives the Senate the option of a civil action to enforce a subpoena.214 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
211 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.
212 28 U.S.C. § 1364(b) (2000).
213 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].
214 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.215
Since the statute’s enactment in 1979, the Senate has authorized the Office of Senate
Legal Counsel to seek civil enforcement of a document subpoena at least 6 times, the
last in 1995. 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 self-
incrimination, lack of compliance with congressional procedures, or an inability to
comply with the subpoena)216 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.217 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
215 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).
216 S. Rept. No. 95-170, 95th Cong., 1st Sess., 93.
217 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.218 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.”219 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.220
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.221 In addition,
several special panels have been specifically granted the authority to seek judicial
orders and participate in judicial proceedings.222
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
218 See Senate Select Committee on Presidential Campaign Activities v. Nixon, 366 F. Supp.
51 (D.D.C. 1973).
219 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).
220 Clarifying the Investigatory Powers of the United States Congress, H.R. Rep. No.
100-1040, 100th Cong. 2d Sess., 2 (1988).
221 See supra note 19; see also infra notes 228-232 and accompanying text.
222 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.223
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).224 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.225 When Mr. Secord refused to sign the consent directive, the Committee
sought to obtain a court order directing him to comply.226 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.227 Thus, the
court concluded that the Committee’s order was a violation of Mr. Secord’s Fifth
Amendment right against self-incrimination.228
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
223 See H. Res. 12, 100th Cong., 1st Sess., §§ 3, 8 (1987) (emphasis added).
224 This resolution was initially added to the House Rules as Rule L by the 97th Congress.
See H.R. 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.R.
RES. 5, 106th Cong. (1999).
225 Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan
Opposition v. Secord, 664 F.Supp. 562, 563 (D.D.C. 1987).
226 Id.
227 Id. at 564-65.
228 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;229 The White House Travel Office Inquiry;230 The
House Campaign Finance Investigation;231 The Select Committee on National
Security Commercial Concerns;232 and The Teamsters Election Investigation.233
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 ....”234 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.”235 Conversely, the federal-question jurisdiction
statute, first enacted in 1875,236 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 ....”237
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
229 See H. Res. 258, 102d Cong., 1st Sess., (1991).
230 See H. Res. 369, 104th Cong., 2d Sess., (1996).
231 See H. Res. 167, 105th Cong., 1st Sess., (1997).
232 See H. Res. 463, 105th Cong., 2d Sess., (1998).
233 See H. Res. 507, 105th Cong., 2d Sess., (1998).
234 U.S. CONST., Art. III, § 2, cl. 1.
235 See ERWIN CHEMERINSKY, FEDERAL JURISDICTION, 264 (3d Ed. 1999) (citing Osborn v.
Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824)).
236 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.”).
237 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,238 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.239 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.”240 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.”241 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”242
and having “passed laws calculated to facilitate such investigations,”243 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.”244
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.’”245 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
238 277 U.S. 376 (1928).
239 Id. at 378 (citing S. Res 195, 69th Cong., 1st Sess. (1926)).
240 Id. at 378-79.
241 Id. at 387.
242 Id. at 388 (citing McGrain v. Daugherty, 273 U.S. 135, 160-174 (1927)).
243 Id. (citing R.S. §§ 101-104, (codified as amended at 2 U.S.C. §§ 192, 194 (2000))).
244 Id. at 389.
245 Id.

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in court, there can be no basis for judicial jurisdiction over such a suit.246 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,247 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 and Modernization Act of 2003.248 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,”249
implicitly delegated to Members to right to sue to enforce their informational
demands.250 The court, in rejecting this argument, relied on the Supreme Court’s
holding in Reed v. County Commissioners.251 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.”252 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,253 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
246 It appears that the Court’s decision in Reed prompted the Senate to adopt its Standing
Order. See supra note 209.
247 Waxman v. Thompson, No. 04-3467, slip op. (C.D. Cal. July 24, 2006).
248 Id. at 2.
249 5 U.S.C. § 2954 (2000) (emphasis added).
250 Waxman v. Thompson, No. 04-3467, slip op. at 21 (C.D. Cal. July 24, 2006).
251 Id. at 21, n. 42.
252 Id.
253 366 F. Supp. 51 (D.D.C. 1973).

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duces tecum.254 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.255
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.”256 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.”257 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.258
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,”259 but also that Congress specifically removed the amount in
controversy requirement for federal question jurisdiction in 1980.260 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&T261 – 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
254 Id. at 61.
255 Id. at 55-61.
256 28 U.S.C. § 1331 (1970).
257 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).
258 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.”).
259 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)
260 See Pub. L. No. 96-486 § 2(a), 94 Stat. 2369 (1980).
261 567 F.2d 121

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branch are justiciable if authorized by one or both Houses of Congress.”262 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, there have been no attempts by a House of Congress to
seek civil enforcement of subpoenas in federal court authorized solely by resolution
of a single House, 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.”263 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.264
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.265 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.”266 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
262 Waxman v. Thompson, No. 04-3467, slip op. at 29 (C.D. Cal. July 24, 2006) (emphasis
added).
263 United States v. American Telephone & Telegraph, 551 F.2d 384, 385 (D.C. Cir. 1976).
264 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.
265 See H. Res. 1420, 94th Cong. 2d Sess. (1976); see also H. Rept. 94-1422, 94th Cong. 2d
Sess. (1976).
266 Id.

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to report to the full House on matters related as soon as practicable.267 The resolution
was adopted by the House by a vote of 180-108 on August 26, 1976.268
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.269
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.270 The district court granted Chairman Moss’s
motion to intervene and ultimately refused to grant the injunction.271 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.”272
While AT&T and Ashland Oil represent affirmative authorizations for
intervention by a house of Congress, In Re Beef Industry Antitrust Litigation,273
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 Representatives274 sought to intervene in a pending
267 Id.
268 See 122 CONG. REC. 27,865-866 (Aug. 26, 1976).
269 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.”).
270 See generally, Ashland Oil, Inc. v. FTC, 548 F.2d 977 (D.C. Cir. 1976); see also H.R.Res.
899, 94th Cong., 1st Sess. (1975); 121 CONG. REC. 41,707 (1976).
271 Ashland Oil, Inc. v. FTC, 409 F.Supp. 297, 301 (D.D.C. 1976).
272 Ashland Oil, 548 F.2d at 979.
273 589 F.2d 786 (5th Cir. 1979).
274 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
(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.275 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.”276 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.277
Therefore, according to the chairmen, they did not require authorization from the full
House of Representatives to appear in court.278
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.”279 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. 280 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.281
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
required for committees, the House General Counsel, or a House-retained private
274 (...continued)
Business Problems of the Committee on Small Business. See id. at 788.
275 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.”).
276 In Re Beef, 589 F.2d at 789.
277 Id.
278 Id.
279 Id. at 790-91.
280 Id. at 790.
281 Id. at 791.

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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.282
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.283
The criminal contempt statute is applicable t o contempts committed by a person
“summoned as a witness by the authority of either House of Congress ... .”284 The
statute applies regardless of whether a subpoena has been issued by a committee or
by the full House or Senate.285 Although the statute specifically makes the contempt
282 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. No. 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.”).
283 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.
284 2 U.S.C. § 192 (2000) (emphasis added).
285 McGrain v. Doughtery, 2 73 U.S. 135 (1927); see also Sinclair v. United States, 279
U.S. 263, 296 (1929).

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sanction applicable t o a witness who has been “summoned,” the law applies whether
the individual is subpoenaed or appears voluntarily and then refuses to testify.286
A contempt conviction will not be upheld if the committee’s investigation has
not been clearly authorized by the full House or Senate.287 The investigation, and the
questions posed, must be within the scope of the committee’s jurisdiction.288 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,289 a resolution,290
or a standing rule of the House or Senate.291 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.292 Investigations may be conducted, and
subpoenas issued, pursuant to a committee’s legislative or oversight jurisdiction.293
286 Sinclair, 279 U.S. at 296.
287 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).
288 See United States v. Rumely, 343 U.S. 41 (1953); see also United States v. Patterson, 206
F.2d 433 (D.C. Cir. 1953).
289 26 U.S.C. § 8021, 8022 (2000) (Joint Committee on Taxation).
290 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).
291 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).
292 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 ).
293 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,294 “[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.”295 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.296
Although the early case of Kilbourn v. Thompson297 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.298 In In re Chapman, 299 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.
294 360 U.S. 109, 117 (1959).
295 See Watkins v. United States, 354 U.S. 178, 209-215 (1957).
296 See, e.g., McGrain v. Daughtery, 273 U.S. 135 (1927); see also In Re Chapman, 166 U.S.
661 (1897).
297 103 U.S. 168 (1881).
298 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.
299 166 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.300
In McGrain v. Daugherty,301 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.302
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
300 In re Chapman, 166 U.S. at 699.
301 273 U.S. 135 (1927).
302 Id. at 179-180.

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the Congress exceeds its power when it seeks information in such areas.303 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;304
the function of deciding whether or not legislation is appropriate;305 oversight of the
administration of the laws by the executive branch;306 and the essential congressional
function of informing itself in matters of national concern.307 In addition, Congress’s
power to investigate such diverse matters as foreign and domestic subversive
activities,308 labor union corruption,309 and organizations that violate the civil rights
of others310 — have all been upheld by the Supreme Court.311
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.312 Furthermore, although “there is no
congressional power to expose for the sake of exposure,”313 “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.”314
Pertinency. Two different issues of pertinency arise in regard to a contempt
prosecution.315 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
303 Shelton v. United States, 404 F.2d 1292, 1297 (D.C. Cir. 1968), cert denied, 393 U.S.
1024 (1969).
304 Barenblatt v. United States, 360 U.S. 109 (1959).
305 Quinn v. United States, 349 U.S. 155, 161 (1955).
306 McGrain, 273 U.S. at 295.
307 United States v. Rumely, 345 U.S. 4, 43-45 (1953); see also Watkins, 354 U.S. at 200 n.
3.
308 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).
309 Hutcheson v. United States, 369 U.S. 599 (1962).
310 Shelton v. United States, 404 F.2d 1292 (D.C. Cir. 1968), cert. denied, 393 U.S. 1024
(1969).
311 For an indication of the likely breadth of Congress’s power to investigate, see supra note
5-19 and accompanying text.
312 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).
313 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.
314 Barenblatt, 360 U.S. at 132.
315 Deutch v. United States, 367 U.S. 456, 467-68 (1961).

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question under inquiry.”316 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.317 Given the breadth of
congressional investigations, the courts have long recognized that pertinency in the
legislative context is broader than in the judicial contenxt, 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.318
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.”319 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 decribe what the topic under inquiry is and the
connective reasoning whereby the precise questions asked relate to it.320
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.”321 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
316 2 U.S.C. § 192 (2000); see also Barenblatt, 360 U.S. at 123; Watkins, 354 U.S. at 208
317 Sinclair v. United States, 279 U.S. 263, 279 (1929); Ashland Oil, Inc. v. FTC, 409 F.
Supp. 287, 305 (D.D.C. 1976).
318 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).
319 Deutch, 367 U.S. at 467-68.
320 Watkins, 354 U.S. at 214-15.
321 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.322
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.323 However, an evil motive does not
have to be established.324 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.325 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.”326 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.327
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
322 Watkins, 354 U.S. at 209-14.
323 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).
324 See generally, Allen B. Moreland, Congressional Investigations and Private Persons, 40
SO. CAL. L. REV. 189, 239-42 (1967).
325 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).
326 Quinn v. United States, 203 F.2d 30, 33 (D.C. Cir. 1952), aff’d, 349 U.S. 155 (1955).
327 See Leading Cases, supra note 297 at 69.

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subpoenas328 and conducting investigations and hearings.329 It appears that a witness
can be convicted of criminal contempt,330 but not of perjury, where a quorum of the
committee was not present.331
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.”332 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,333 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.334 Moreover, the conclusion that recognition of non-
328 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).
329 Yellin v. United States, 374 U.S. 109 (1963); Gojack v. United States, 384 U.S. 702
(1966).
330 United States v. Bryan, 339 U.S. 323 (1950).
331 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).
332 Hearings, “International Uranium Cartel”, Subcomm. on Oversight and Investigations,
House Comm. on Interstate and Foreign Commerce, 95th Cong., 1st Sess., Vol. 1, 123
(1977).
333 See 2 U.S.C. 190d (1994).
334 See, e.g., Contempt of Congress Against Franklin L. Haney, H. Rept. No. 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.R. Rept.
No. 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.335
Although there is limited case law with respect to attorney-client privilege
claims before congressional committees,336 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.337 These rulings
may lead to additional arguments in support of the long-standing congressional
practice.

334 (...continued)
Produce Notes Subpoenaed by the Special Committee to Investigate Whitewater
Development Corporation and Related Matters, Sen. Rept. No. 104-191, 104th Cong. 1st
Sess., 9-19 (1995); Proceedings Against Ralph Bernstein and Joseph Bernstein, H. Rept.
No. 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).
335 See Investigative Oversight: An Introduction to the Law Practice and Procedure of
Congressional Inquiry, CRS Rept. No. 95-464A, 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).
336 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.”).
337 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)).

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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.338
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.339
While no court has recognized the inapplicability of the attorney-client privilege
in congressional proceedings in a decision directly addressing the issue,340 an opinion
issued by the Legal Ethics Committee of the District of Columbia Bar in February
1999, clearly acknowledges the longstanding congressional practice.341 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.342 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.343 The firm continued its refusal
to comply until the Subcommittee cited it for contempt, at which time the firm
338 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).
339 Westinghouse Electric Corporation v. Republic of the Philippines, 951 F.2d 1414, 1423
(3d Cir. 1991).
340 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.”).
341 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).
342 See H. Rep. No. 105-792, 105th Cong., 1st Sess., 1-6, 7-8, 15-16 (1997).
343 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).

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proposed to turn over the documents if the contempt citation was withdrawn. The
Subcommittee agreed to the proposal.344
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),345 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,346 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.347 Although there is no court case directly on
344 Id. at 101-105.
345 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.”
346 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).
347 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
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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.348 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.349 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.350 The basis for these determinations is rooted in Congress’s
Article I section 5 rulemaking powers,351 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.352
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.353 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.”354

347 (...continued)
accompanying text.
348 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.
349 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).
350 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)).
351 U.S. CONST. Art. 1, § 5, cl. 2
352 See generally, Telford Taylor, GRAND INQUEST: THE STORY OF CONGRESSIONAL
INVESTIGATIONS 227-28 (1974).
353 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.
354 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)).

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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.”355 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.356 In the leading case involving the application of First Amendment
rights in a congressional investigation, Barenblatt v. United States,357 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.358
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.” 359 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.360
355 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).
356 Watkins v. United States, 354 U.S. 178, 197 (1957).
357 360 U.S. 109, 126 (1959).
358 Id.
359 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).
360 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...)

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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.361 However, the Court has
narrowly construed the scope of a committee’s authority so as to avoid reaching a
First Amendment issue.362 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.363
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.364 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
360 (...continued)
Precedents, supra note 87, ch. 15, § 10, n. 15 and accompanying text.
361 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).
362 United States v. Rumely, 345 U.S. 41 (1953).
363 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.
364 H.R. Rept. No. 94-1754, 94th Cong. 2d Sess., 6 (1976).

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source.365 The desire to avoid a clash over First Amendment rights apparently was
a major factor in the committee’s decision on the contempt matter.366
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.367 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.368 After
extensive debate, the House failed to adopt the committee report, voting instead to
recommit the matter to the committee.369 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. 370
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.371 It appears that there must be probable cause for the
issuance of a congressional subpoena.372 The Fourth Amendment protects a
365 Id. at 42-43.
366 Id. at 47-48 (additional views of Representatives Spence, Teague, Hutchinson, and Flynt).
367 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.
368 H.R. Rept. No. 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.
369 See 117 CONG. REC. 23922-926, 24603-59, 24720-53 (1971).
370 Id. at 24731-732.
371 Watkins v. United States, 354 U.S. 178, 188 (1957); see also McPhaul v. United States,
364 U.S. 372 (1960).
372 Fourth amendment standards apply to subpoenas, such as those issued by committees, as
well as to search warrants. See Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186
(1946). 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
(continued...)

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congressional witness against a subpoena which is unreasonably broad or
burdensome.373 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] t o know what
particular documents were required and to select them adequately.374
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].375
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 t o 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.”376
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
372 (...continued)
predictable end result.”).
373 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).
374 McPhaul, 364 U.S. at 832.
375 Shelton, 404 F.2d at 1299-1300; see also Leading Cases, supra note 297, at 49.
376 McPhaul, 364 U.S. at 382.

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subsequent unrelated criminal prosecution because of the command of the
exclusionary rule.377 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).378
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.379 The privilege
is personal in nature,380 and may not be invoked on behalf of a corporation,381 small
377 Nelson v. United States, 208 F.2d 505 (D.C. Cir.), cert. denied, 346 U.S. 827 (1953).
378 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).
379 Watkins v. United States, 354 U.S. 178 (1957); Quinn v. United States, 349 U.S. 155
(1955).
380 See McPhaul v. United States, 364 U.S. 372 (1960); see also McCormick, EVIDENCE §
120 (Cleary ed. 1984) [hereinafter McCormick].
381 Hale v . Henkel, 201 U.S. 43 (1906).

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partnership,382 labor union,383 or other “artificial” organizations.384 The privilege
protects a witness against being compelled to testify but generally not against a
subpoena for existing documentary evidence.385 However, where compliance with
a subpoena duces tecum would constitute implicit testimonial authentication of the
documents produced, the privilege may apply.386
There is no required verbal formula for invoking the privilege, nor does there
appear to be necessary a warning by the committee.387 A committee should recognize
any reasonable indication, such as "the fifth amendment," that the witness is asserting
his privilege.388 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.389
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.390
The basis for asserting the privilege was elaborated upon in a lower court decision:
382 Bellis v. United States, 417 U.S. 85 (1974).
383 See United States v. White, 322 U.S. 694 (1944).
384 Bellis, 417 U.S. at 90; see also Rogers v. United States, 340 U.S. 367 (1951) (Communist
Party).
385 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.
386 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.
387 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).
388 Quinn v. Unlted States, 349 U.S. 155 (1955).
389 Emspak v. United States, 349 U.S. 190 (1955); see also Leading Cases, supra note 297
at 63.
390 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.391
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.392
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.393 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.394
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.395 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.396
391 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).
392 Emspak v. United States, 349 U.S. 190 (1955); see also Johnson v. Zerbst, 304 U.S. 458,
464 (1938).
393 18 U.S.C. §§ 6002, 6005 (2000).
394 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.
395 18 U.S.C. § 6005(a) (2000).
396 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),
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Although the order to testify may be issued before the witness’s appearance,397 it does
not become legally effective until the witness has been asked the question, invoked
his privilege, and been presented with the court order.398 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.399
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.”400 “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, state for the record the subject under inquiry
at that time and the manner in which the propounded questions are pertinent
thereto.”401 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.402
396 (...continued)
cert. denied, 454 U.S. 1084 (1981).
397 Application of the Senate Permeant Subcommittee on Investigations, 655 F.2d at 1257
398 See In re McElreath, 248 F.2d 612 (D.C. Cir. 1957) (en banc).
399 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.
400 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.
401 Watkins v. United States, 354 U.S. 178, 214-15 (1957).
402 Deutch v. United States, 367 U.S. 456, 467-68 (1961).

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