Congress’s Contempt Power and the
Enforcement of Congressional Subpoenas:
Law, History, Practice, and Procedure

Todd Garvey
Legislative Attorney
Alissa M. Dolan
Legislative Attorney
August 17, 2012
Congressional Research Service
7-5700
www.crs.gov
RL34097
CRS Report for Congress
Pr
epared for Members and Committees of Congress

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas

Summary
Congress’s contempt power is the means by which Congress responds to certain acts that in its
view obstruct the legislative process. Contempt may be used either to coerce compliance, to
punish the contemnor, and/or to remove the obstruction. Although arguably any action that
directly obstructs the effort of Congress to exercise its constitutional powers may constitute a
contempt, in recent times the contempt power has most often been employed in response to non-
compliance with a duly issued congressional subpoena—whether in the form of a refusal to
appear before a committee for purposes of providing testimony, or a refusal to produce requested
documents.
Congress has three formal methods by which it can combat non-compliance with a duly issued
subpoena. Each of these methods invokes the authority of a separate branch of government. First,
the long dormant inherent contempt power permits Congress to rely on its own constitutional
authority to detain and imprison a contemnor until the individual complies with congressional
demands. Second, the criminal contempt statute permits Congress to certify a contempt citation to
the executive branch for the criminal prosecution of the contemnor. Finally, Congress may rely on
the judicial branch to enforce a congressional subpoena. Under this procedure, Congress may
seek a civil judgment from a federal court declaring that the individual in question is legally
obligated to comply with the congressional subpoena.
A number of obstacles face Congress in any attempt to enforce a subpoena issued against an
executive branch official. Although the courts have reaffirmed Congress’s constitutional authority
to issue and enforce subpoenas, efforts to punish an executive branch official for non-compliance
with a subpoena through criminal contempt will likely prove unavailing in many, if not most,
circumstances. Where the official refuses to disclose information pursuant to the President’s
decision that such information is protected under executive privilege, past practice suggests that
the Department of Justice (DOJ) will not pursue a prosecution for criminal contempt. In addition,
although it appears that Congress may be able to enforce its own subpoenas through a declaratory
civil action, relying on this mechanism to enforce a subpoena directed at an executive official
may prove an inadequate means of protecting congressional prerogatives due to the time required
to achieve a final, enforceable ruling in the case. Although subject to practical limitations,
Congress retains the ability to exercise its own constitutionally based authorities to enforce a
subpoena through inherent contempt.
This report examines the source of the contempt power, reviews the historical development of the
early case law, outlines the statutory and common law basis for Congress’s contempt power, and
analyzes the procedures associated with inherent contempt, criminal contempt, and the civil
enforcement of subpoenas. The report also includes a detailed discussion of two recent
information access disputes that led to the approval of contempt citations in the House against
then-White House Chief of Staff Joshua Bolten and former White House Counsel Harriet Miers,
as well as Attorney General Eric Holder. Finally, the report discusses both non-constitutional and
constitutionally based limitations on the contempt power.

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Contents
Introduction...................................................................................................................................... 1
Congress’s Power to Investigate...................................................................................................... 2
Early History of Congressional Contempt....................................................................................... 4
Inherent Contempt ......................................................................................................................... 11
Inherent Contempt Proceedings By Committees of Congress ................................................ 13
Statutory Criminal Contempt......................................................................................................... 18
Civil Enforcement of Subpoenas ................................................................................................... 23
Civil Enforcement in the Senate.............................................................................................. 23
Civil Enforcement in the House of Representatives................................................................ 26
Special Investigatory Committees..................................................................................... 31
Committee Intervention in Subpoena Related Litigation.................................................. 32
Enforcement of a Criminal or Inherent Contempt Resolution Against an
Executive Branch Official .......................................................................................................... 34
The Burford Contempt ............................................................................................................ 35
The Bolten and Miers Contempt: Committee on the Judiciary v. Miers ................................. 40
The Holder Contempt .............................................................................................................. 45
Practical Limitations of Congressional Reliance on Criminal Contempt or the Civil
Enforcement of Subpoenas................................................................................................... 49
Non-Constitutional Limitations ..................................................................................................... 51
Authorization and Jurisdiction................................................................................................. 51
Legislative Purpose ................................................................................................................. 52
Pertinency................................................................................................................................ 54
Willfulness............................................................................................................................... 55
Other Procedural Requirements............................................................................................... 56
Attorney-Client Privilege ........................................................................................................ 56
Work Product Immunity and Other Common Law Testimonial Privileges............................. 59
Constitutional Limitations ............................................................................................................. 60
First Amendment ..................................................................................................................... 60
Fourth Amendment.................................................................................................................. 62
Fifth Amendment Privilege Against Self-Incrimination.......................................................... 64
Fifth Amendment Due Process Rights..................................................................................... 66

Tables
Table A-1. Floor Votes on Contempt Resolutions in the House of Representatives, 1980-
Present ........................................................................................................................................ 67
Table A-2. Other Committee Actions on Contempt Resolutions in the
House of Representatives, 1980-Present .................................................................................... 70
Table A-3. Floor Votes on Civil Enforcement Resolutions in the Senate, 1980-Present ............... 74
Table A-4. Other Committee Actions on Contempt Resolutions in the Senate,
1980-Present ............................................................................................................................... 76
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Appendixes
Appendix. Congressional Contempt Resolutions, 1980-Present ................................................... 67

Contacts
Author Contact Information........................................................................................................... 77
Acknowledgments ......................................................................................................................... 78

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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, to
punish the contemnor, and/or to remove the obstruction.1 Although any action that directly
obstructs the effort of Congress to exercise its constitutional powers may arguably constitute a
contempt,2 in recent decades the contempt power has most often been employed in response to
the refusal of a witness to comply with a congressional subpoena—whether in the form of a
refusal to provide testimony, or a refusal to produce requested documents.3
Congress has three formal methods by which it can combat non-compliance with a duly issued
subpoena.4 Each of these methods invokes the authority of a separate branch of government.
First, the long dormant inherent contempt power permits Congress to rely on its own
constitutional authority to detain and imprison a contemnor until the individual complies with
congressional demands.5 Because the contemnor is generally released once the terms of the
subpoena are met, inherent contempt serves the purposes of encouraging compliance with a
congressional directive. Second, the criminal contempt statute6 permits Congress to certify a
contempt citation to the executive branch for the criminal prosecution of the contemnor.7
Criminal contempt serves as punishment for non-compliance with a congressional subpoena, but
does not necessarily encourage subsequent acquiescence. Once convicted, the contemnor is not
excused from criminal liability if he later chooses to comply with the subpoena. Finally, Congress
may rely on the judicial branch to enforce a congressional subpoena.8 Under this procedure,
Congress may seek a civil judgment from a federal court declaring that the individual in question
is legally obligated to comply with the congressional subpoena. If the court finds that the party is
legally obligated to comply, continued non-compliance may result in the party being held in
contempt of court. Where the target of the subpoena is an executive branch official, civil

1 See generally, RONALD L. GOLDFARB, THE CONTEMPT POWER (2d ed., Anchor Books 1971).
2 Compare Jurney v. MacCracken, 294 U.S. 125 (destruction of documentary evidence which had been subpoenaed by
a committee of Congress can constitute contempt) with Marshall v. Gordon, 243 U.S. 521 (1917) (publication by U.S.
Attorney of letter critical of Congress could not constitute contempt because it did not directly obstruct the legislative
process). The Jurney decision also upheld the use of the inherent contempt power to punish a past contempt, even
where removal of the obstruction to the legislative process was no longer possible. See Jurney, 294 U.S. at 147-48, 150.
3 However, in two cases, defendants entered pleas of nolo contendere to the statutory offense of contempt, a
misdemeanor, rather than stand trial for perjury, a felony. United States v. Helms, Cr. No. 77-650 (D.D.C. 1977);
United States v. Kleindienst, Cr. No. 74-256 (D.D.C. 1974); see also Prosecution of Contempt of Congress, Hearing
before the Subcommittee on Administrative Law and Governmental Relations of the House Judiciary Committee on
H.R. 2684 and H.R. 3456, 98th Cong., 1st Sess., 29 (1983) (prepared statement of Stanley Brand, former Counsel to the
Clerk of the House). It should also be noted that a witness who refuses to testify before a committee, or who provides a
committee with false or misleading testimony, can potentially be prosecuted under other criminal provisions, including
18 U.S.C. §1001 (false statements), 18 U.S.C. §1621 (perjury), and 18 U.S.C. §1505 (obstruction of committee
proceedings). A detailed discussion of those offenses, however, is beyond the scope of this report. See generally, JAMES
HAMILTON, THE POWER TO PROBE: A STUDY OF CONGRESSIONAL INVESTIGATIONS, 78 (1976).
4 With respect to subpoenas issued against the executive branch, Congress may utilize other powers, including the
imposition of funding restrictions, to coerce compliance.
5 See, “Inherent Contempt” infra.
6 2 U.S.C. §§192, 194.
7 See, “Statutory Criminal Contempt” infra.
8 See, “Civil Enforcement of Subpoenas” infra.
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enforcement may be the only practical means by which Congress can effectively ensure
compliance with its own subpoena.9
This report examines the source of the contempt power; reviews the historical development of the
early case law; discusses noteworthy contempt proceedings; outlines the statutory, common law,
and constitutional limitations on the contempt power, and analyzes the procedures associated with
inherent contempt, criminal contempt, and the civil enforcement of congressional subpoenas.
Congress’s Power to Investigate
The power of Congress to punish for contempt is inextricably related to the power of Congress to
investigate.10 Generally speaking, Congress’s authority to investigate and obtain information,
including but not limited to confidential information, is extremely broad. While there is no
express provision of the Constitution or specific statute authorizing the conduct of congressional
oversight or investigations, the Supreme Court has firmly established that such power is essential
to the legislative function as to be implied from the general vesting of legislative powers in
Congress.11 The broad legislative authority to seek and enforce informational demands was
unequivocally established in two Supreme Court rulings arising out of the 1920’s Teapot Dome
scandal.
In McGrain v. Daugherty,12 which arose out of the exercise of the Senate’s inherent contempt
power, the Supreme Court described the power of inquiry, with the accompanying process to
enforce it, as “an essential and appropriate auxiliary to the legislative function.” The Court
explained:
A legislative body cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect or change; and where the
legislative body does not itself possess the requisite information—which not infrequently is
true—recourse must be had to others who possess it. Experience has taught that mere
requests for such information often are unavailing, and also that information which is
volunteered is not always accurate or complete; so some means of compulsion are essential
to obtain that which is needed. All this was true before and when the Constitution was
framed and adopted. In that period the power of inquiry—with enforcing process—was
regarded and employed as a necessary and appropriate attribute of the power to legislate—
indeed, was treated as inhering in it. Thus there is ample warrant for thinking, as we do, that
the constitutional provisions which commit the legislative function to the two houses are
intended to include this attribute to the end that the function may be effectively exercised.13

9 See, “Enforcement of a Criminal or Inherent Contempt Resolution Against an Executive Branch Official” infra.
10 See generally, Allen B. Moreland, Congressional Investigations and Private Persons, 40 SO. CAL. L. REV. 189
(1967).
11 See, e.g., Nixon v. Administrator of General Services, 433 U.S. 435 (1977); Eastland v. United States Servicemen’s
Fund
, 421 U.S. 491 (1975); Barenblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States, 354 U.S. 178
(1957); McGrain v. Daugherty, 273 U.S. 135 (1927); Committee on the Judiciary v. Miers, 558 F. Supp. 2d 53, 84
(D.D.C. July 31, 2008) (“In short, there can be no question that Congress has a right—derived from its Article I
legislative function—to issue and enforce subpoenas, and a corresponding right to the information that is the subject of
such subpoenas. Several Supreme Court decisions have confirmed that fact.”).
12 273 U.S. 135, 174-75 (1927).
13 Id.
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In Sinclair v. United States,14 a different witness at the congressional hearings refused to provide
answers, and was prosecuted for contempt of Congress. The witness had noted that a lawsuit had
been commenced between the government and the Mammoth Oil Company, and declared, “I shall
reserve any evidence I may be able to give for those courts ... and shall respectfully decline to
answer any questions propounded by your committee.”15 The Supreme Court upheld the witness’s
conviction for contempt of Congress. The Court considered and rejected in unequivocal terms the
witness’s contention that the pendency of lawsuits provided an excuse for withholding
information. Neither the laws directing that such lawsuits be instituted, nor the lawsuits
themselves, “operated to divest the Senate, or the committee, of power further to investigate the
actual administration of the land laws.”16 The Court further explained that “[i]t may be conceded
that Congress is without authority to compel disclosure for the purpose of aiding the prosecution
of pending suits; but the authority of that body, directly or through its committees to require
pertinent disclosures in aid of its own constitutional power is not abridged because the
information sought to be elicited may also be of use in such suits.”17
Subsequent Supreme Court rulings have consistently reiterated and reinforced the breadth of
Congress’s investigative authority. For example, in Eastland v. United States Servicemen’s Fund,
the Court explained that “[t]he scope of [Congress’s] power of inquiry ... is as penetrating and far-
reaching as the potential power to enact and appropriate under the Constitution.”18 In addition, the
Court in Watkins v. United States, described the breadth of the power of inquiry. According to the
Court, Congress’s power “to conduct investigations is inherent in the legislative process. That
power is broad. It encompasses inquiries concerning the administration of existing laws as well as
proposed or possibly needed statutes.”19 The Court did not limit the power of congressional
inquiry to cases of “wrongdoing.” It emphasized, however, that Congress’s investigative power is
at its peak when the subject is alleged waste, fraud, abuse, or maladministration within a
government department. The investigative power, the Court stated, “comprehends probes into
departments of the Federal Government to expose corruption, inefficiency, or waste.”20 “[T]he
first Congresses,” held “inquiries dealing with suspected corruption or mismanagement by
government officials”21 and subsequently, in a series of decisions, “[t]he Court recognized the
danger to effective and honest conduct of the Government if the legislative power to probe
corruption in the Executive Branch were unduly hampered.”22 Accordingly, the Court now clearly
recognizes “the power of the Congress to inquire into and publicize corruption,
maladministration, or inefficiencies in the agencies of Government.”23

14 279 U.S. 263 (1929).
15 Id. at 290.
16 Id. at 295.
17 Id.
18 421 U.S. 491, 504, n. 15 (1975) (quoting Barenblatt v. United States, 360 U.S. 109, 111 (1960)).
19 354 U.S. 178, 187 (1957).
20 Id.
21 Id. at 182.
22 Id. at 194-95
23 Id. at 200 n. 33; see also Morrison v. Olson, 487 U.S. 654, 694 (1988) (noting that Congress’s role under the
Independent Counsel Act “of receiving reports or other information and oversight of the independent counsel’s
activities ... [are] functions we have recognized as being incidental to the legislative function of Congress”) (citing
McGrain v. Daugherty, 273 U.S. 135 (1927)).
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The inherent contempt power is not specified in a statute or constitutional provision, but has been
deemed implicit in the Constitution’s grant to Congress of all legislative powers. In an inherent
contempt proceeding, the offender is tried at the bar of the House or Senate and can be held in
custody until such time as the contemnor provides the testimony or documents sought, or until the
end of the session. Inherent contempt was most often used as a means of coercion, not
punishment. A statutory criminal contempt provision was first enacted by Congress in 1857, in
part because of the inadequacies of proceedings under the inherent power. In cases of criminal
contempt, the offender is cited by the subcommittee, the committee, and the full House or Senate,
with subsequent indictment by a grand jury and prosecution by the U.S. Attorney. Criminal
contempt, unlike inherent contempt, is intended as a means of punishing the contemnor for non-
compliance rather than to obtain the information sought. A statutory civil enforcement procedure,
applicable only to the Senate, was enacted in 1978. Under that procedure, a witness, who refuses
to testify before a Senate committee or provide documents sought by the committee can, after
being served with a court order, be held in contempt of court and incarcerated until he agrees to
testify. Moreover, the House and Senate have authorized standing or special committees to seek
civil enforcement of subpoenas.24
Early History of Congressional Contempt
While the contempt power was exercised both by the English Parliament25 and by the American
colonial assemblies,26 Congress’s first assertion of its contempt authority occurred in 1795,
shortly after the ratification of the Constitution. At the time, three Members of the House of
Representatives reported that they had been offered what they interpreted to be a bribe by men
named Robert Randall and Charles Whitney.27 The House of Representatives interpreted these
allegations as sufficient evidence of an attempt to corrupt its proceedings and reported a
resolution ordering their arrest and detention by the Sergeant-at-Arms, pending further action by
the House.28 The matter was then referred to a special Committee on Privileges which reported
out a resolution recommending that formal proceedings be instituted against Messrs. Randall and
Whitney at the bar of the House.29 In addition, the resolution provided that the accused be
questioned by written interrogatories submitted by the Speaker of the House with both the

24 See, e.g., S.Res. 60 & S.Res. 194, 93d Cong., (1973) (Senate Select Committees on Watergate); H.Res. 60, 97th
Cong., (1981) (ABSCAM); H.Res. 12, 100th Cong. (1987) (House Iran–Contra); S.Res. 23, 100th Cong. (1987) (Senate
Iran–Contra); H.Res. 463, 105th Cong., (1998) (Select Committee on National Security Commercial Concerns); see
also
H.Res. 1420, 94th Cong. 2d Sess. (1976) (authorizing the chairman of the House Interstate and Foreign Commerce
Subcommittee on Oversight and Investigations to intervene in United States v. American Telephone & Telegraph, 419
F. Supp. 454 (D.D.C. 1976)); H.Res. 899, 121 CONG. REC. 918-19 (1975) (authorizing the chairman of the House
Interstate and Foreign Commerce Subcommittee on Oversight and Investigations to intervene in Ashland Oil Inc., v.
FTC
, 409 F. Supp. 297, 307 (D.D.C. 1976)); H.Res. 980, 110th Cong. (2008) (authorizing the chairman of the House
Committee on the Judiciary to initiate judicial proceedings affirming the authority of a congressional subpoena.).
25 MAY’S TREATISE ON THE LAW, PRIVILEGES, PROCEEDINGS AND USAGE OF PARLIAMENT, 141-42 (17th ed . 1964).
26 MARY PATTERSON CLARKE, PARLIAMENTARY PRIVILEGE IN THE AMERICAN COLONIES (1971); see also CARL BECK,
CONTEMPT OF CONGRESS: A STUDY OF THE PROSECUTIONS INITIATED BY THE COMMITTEE ON UN-AMERICAN ACTIVITIES,
1945-1957 (1959) [hereinafter Beck].
27 2 ASHER C. HINDS, PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, §1599 (1907) [hereinafter Hinds’s Precedents].
According to the records, Messrs. Randall and Whitney allegedly offered three Members emoluments and money in
exchange for the passage of a law granting Randall and his associates some 18-20 million acres of land bordering Lake
Erie. See id.
28 Id.
29 Id. at §1600.
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questions and the answers entered into the House minutes.30 The resolution also provided that
individual Members could submit written questions to the accused.31
Upon adopting the resolution and after considerable debate, the House determined that the
following procedures be adhered to: First, the complaining Members were to submit a written
signed information to the accused and for publication in the House Journal. In addition, the
accused were to be provided counsel, the right to call witnesses on their behalf, the right to cross-
examination of the complaining Members through written questions submitted to the Speaker,
and adequate time to prepare a defense.32 A proceeding was held at the bar of the House, and on
January 4, 1796, the House, by a vote of 78-17, adopted a resolution finding Mr. Randall guilty of
“a contempt to, and a breach of the privileges of, this House by attempting to corrupt the integrity
of its Members in the manner laid to his charge.”33 The House ordered Mr. Randall to be brought
to the bar, reprimanded by the Speaker, and held in custody until further resolution of the
House.34 Mr. Randall was detained until January 13, 1796, when he was discharged by House
resolution. Mr. Whitney, on the other hand, was absolved of any wrongdoing as the House
determined that his actions were against a “member-elect,” and had taken place “away from the
seat of government.”35
Of additional significance is the fact that the records indicate that almost no question was raised
with respect to the power of Congress to punish a non-Member for contempt. According to one
commentator, who noted that many of the Members of the early Congress were also members of
the Constitutional Convention and, thus, fully aware of the legislative practices of the time, it was
“substantially agreed that the grant of the legislative power to Congress carried with it by
implication the power to punish for contempt.”36
Four years later, the Senate exercised its contempt power against William Duane, who, as editor
of the Aurora newspaper, was charged with the publication of a libelous article concerning the
Senate and one of its committees. Mr. Duane was ordered by Senate resolution to appear before
the bar of the Senate and “make any proper defense for his conduct in publishing the aforesaid
false, defamatory, scandalous, and malicious assertions and pretended information.”37 At his
initial appearance before the Senate, Mr. Duane requested, and was granted, the assistance of
counsel and ordered to appear again two days later.38 Instead of appearing before the Senate as
ordered, Mr. Duane submitted a letter indicating he did not believe he could receive a fair trial
before the Senate.39 Mr. Duane was subsequently held in contempt of the Senate for his failure to
appear, not for his alleged libelous and defamatory publications.40 As a result, he was held in the

30 Id.
31 Id.
32 Id. at §§1601-1602. The proceedings appear to have been delayed from December 30, 1795 to January 4, 1796, at the
request of Randall and his counsel. Id.
33 Id. at §1603.
34 Id.
35 Id.
36 C.S. Potts, Power of Legislative Bodies to Punish for Contempt, 74 U. PENN. L. REV. 691, 720 (1926).
37 2 Hinds’s Precedents, supra note 27 at §1604.
38 Id.
39 Id.
40 Id. The Senate voted 16-11 to hold Mr. Duane in contempt. Id.
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custody of the Senate for several weeks before the Senate, by resolution, instructed that he be
released and tried by the courts.41
The Senate’s contempt of Mr. Duane generated considerably more debate concerning Congress’s
contempt authority. A majority of Senators argued that the Senate’s contempt power was an
inherent right of legislative bodies, derived not specifically from the Constitution, but rather from
“the principle of self-preservation, which results to every public body from necessity and from
the nature of the case.”42 Moreover, Senators supportive of this position argued that their
reasoning was firmly supported by English and colonial practices, as well as the practice of the
state legislatures. Finally, the majority asserted that if Congress did not possess a contempt power
it would be vulnerable to the disruption of its proceedings by outside intruders.43
While the Senate’s exercise of its contempt power was not without precedent, many Senators
disputed these claims, arguing that all powers sought to be exercised by Congress must be
specifically derived from the Constitution; that because the contempt power is not among the
enumerated powers given to Congress, the power is reserved to the states and the people. In
addition, the minority argued that Congress, unlike the English Parliament or state legislatures,
was intentionally not granted the plenary powers of sovereignty by the Constitution and, thus,
could not claim any inherent right to self-preservation.44 As an alternative, the minority proposed
that Congress, which has the power to “make all laws which shall be necessary and proper for
carrying into execution the foregoing powers”45 had sufficient authority to enact a statute that
would protect the integrity of its proceedings.46 Moreover, the minority argued that disruptions of
congressional proceedings would continue to be subject to the criminal laws.47
After Mr. Duane’s contempt by the Senate, it appeared that the subject of the Congress’s inherent
contempt power was settled. The authority, however, was not used again for another 12 years. In
1812, the House issued a contempt resolution against Mr. Nathaniel Rounsavell, who had refused
to answer a select committee’s questions concerning which Representative had given him
information regarding secret sessions.48 However, before Mr. Rounsavell was brought before the
bar of the House a Member admitted his indiscretion and the matter was not pursued.49
Congress’s inherent contempt power was not used again until 1818, where it eventually made its
way to the Supreme Court for adjudication.

41 Id. The records indicate that Mr. Duane was held in contempt of the Senate on March 27, 1800, and released by
resolution adopted on May 14, 1800, the last day of the session, by a vote of 13-4. Id.
42 Senate Proceedings, 6th Cong. 1799-1801 86 (March 5, 1800); see also Constitution, Jefferson’s Manual, and the
Rules of the House of Representatives, H.R. Doc. 108-241, 108th Cong., 2d Sess., §§297-299 (2005) [hereinafter
Jefferson’s Manual]
43 See id.
44 Id. at §298
45 U.S. CONST. Art. 1, §8, cl.18.
46 Jefferson’s Manual, supra note 42 at §298.
47 See id.
48 See Beck, supra note 26 at 192.
49 Id.
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Anderson v. Dunn
In 1821, the Supreme Court was faced with interpreting the scope of Congress’s contempt
power.50 The case arose when Representative Louis Williams of North Carolina introduced a
letter before the House from a John Anderson, which Representative Williams interpreted as an
attempt to bribe him.51 Following its 1795 precedent, the House adopted a resolution ordering the
Sergeant-at-Arms to arrest Mr. Anderson bring him before the bar of the House. Upon Mr.
Anderson’s arrest, however, a debate erupted on the floor of the House as the motion for referral
to the Committee on Privileges to adopt procedures was considered. Several Members objected to
the House’s assertion of an inherent contempt power. They argued, as the minority Senators had
in Mr. Duane’s contempt, that neither the Constitution nor the general laws afforded the Congress
such an inherent power to punish for actions that occurred elsewhere.52 Relying on the 1795
precedent and examples from the British Parliament and state legislatures, the Committee was
formed and it adopted a resolution requiring Mr. Anderson to be brought before the bar of the
House for questioning by the Speaker.53 At his appearance, Mr. Anderson, like Mr. Randall and
Mr. Whitney before him, was afforded counsel and permitted to present the testimony of eleven
witnesses. Ultimately, Mr. Anderson was found in contempt of Congress and was ordered to be
reprimanded by the Speaker for the “outrage he committed” and discharged into the custody of
the Sergeant-at-Arms.54
Mr. Anderson subsequently filed suit against Mr. Thomas Dunn, the Sergeant-at-Arms of the
House, alleging assault, battery, and false imprisonment. Mr. Dunn responded by asserting that he
was carrying out the lawful orders of the House of Representatives. The Supreme Court heard the
case in February of 1821 and concluded that the Congress possessed the inherent authority to
punish for contempt and dismissed the charges against Mr. Dunn.55 The Court noted that while
the Constitution does not explicitly grant either House of Congress the authority to punish for
contempt, except in situations involving its own Members, such a power is necessary for
Congress to protect itself. The Court asserted that if the House of Representatives did not possess
the power of contempt it would “be exposed to every indignity and interruption, that rudeness,
caprice, or even conspiracy, may meditate against it.”56
The Court’s decision in Anderson does not define the specific actions that would constitute
contempt; rather, it adopted a deferential posture, noting that “it is only necessary to observe that
there is nothing on the facts of the record from which it can appear on what evidence the warrant
was issued and we do not presume that the House of Representatives would have issued it without
fully establishing the facts charged on the individual.”57
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

50 Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821).
51 See 2 Hinds’s Precedents, supra note 27 at §1606. The letter offered Representative Williams $500 as “part pay for
extra trouble” with respect to furthering the claims of Mr. Anderson with respect to the River Raisin. Id.
52 Id.
53 Id.
54 Id.
55 Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821).
56 Id. at 228.
57 Id. at 234.
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Congress could supplement this power to punish for contempt committed in its presence by
enacting a statute, which would prohibit “all other insults which there is any necessity for
providing.”58
The Court in Anderson also endorsed the existing parliamentary practice that the contemnor could
not be held beyond the end of the legislative session.59 According to the Court, “[s]ince the
existence of the power that imprisons is indispensable to its continuance, and although the
legislative power continues perpetual, the legislative body ceases to exist, on the moment of its
adjournment or periodical dissolution. It follows, that imprisonment must terminate with that
adjournment.”60
Since Anderson was decided there has been an unresolved question as to whether this rule would
apply with equal force to a contempt by the Senate, since it is considered a “continuing body.”61
The Senate, it appears, has only addressed this issue once, in 1871, regarding the contempt of two
recalcitrant witnesses, Z.L. White and H.J. Ramsdell.62 During these contempt proceedings, the
Senate found itself near the end of a session and the question arose as to whether the Senate’s
acquiescence to the Anderson rule would provide adequate punishment. After vigorous debate,
the Senate instructed the Sergeant-at-Arms to release the prisoners immediately upon the final
adjournment of the Congress.63 The House, however, has imprisoned a contemnor for a period
that extended beyond the adjournment of a Congress. Patrick Wood was sentenced by the House
to a three-month term in jail for assaulting Representative Charles H. Porter.64 Although there is
no doubt that Mr. Woods’s period of incarceration extended beyond the date of adjournment, it
was not challenged and, therefore, there is no judicial opinion addressing the issue.
Kilbourn v. Thompson
In 1876, the House established a select committee to investigate the collapse of Jay Cooke &
Company, a real estate pool in which the United States had suffered losses as a creditor.65 The

58 Id. at 228.
59 See 2 Hinds’s Precedents, supra note 27 at §1604 (noting that Mr. Duane, who had been held in contempt by the
Senate, was released from custody on the last day of the legislative session).
60 Anderson, 19 U.S. (6 Wheat.) at 231.
61 Unlike the House, whose entire membership stands for election every two years, only one-third of the Senate is
elected each Congress.
62 Allen B. Moreland, Congressional Investigations and Private Persons, 40 SO. CAL. L. REV. 189, 199, n. 31 (1967)
[hereinafter Moreland].
63 Id.
64 See 2 Hinds’s Precedents, supra note 27 at §§1628-629.
65 See 2 Hinds’s Precedents, supra note 27 at §1609. It should also be noted that the Speaker also reported Mr.
Kilbourn’s contempt to the District Attorney for the District of Columbia pursuant to the 1857 criminal contempt
statute. According to records, the District Attorney presented the case to a grand jury and received an indictment for
five counts of contempt. The District Attorney requested the Mr. Kilbourn be turned over to his custody for trial. The
House, however, after considerable debate, adopted a resolution instructing the Sergeant-at-Arms not to release Mr.
Kilbourn. See 4 CONG. REC. 2483-2500, 2513-2532 (April 15-16 1876). Although the Supreme Court later indicated, in
the case of In re Chapman, 166 U.S. 661, 672 (1897), that the double jeopardy clause of the Constitution would not
prohibit a criminal prosecution of a witness for contempt of Congress after he had been tried at the bar of the House
under the inherent contempt power, subsequent developments in the interpretation of the double jeopardy clause
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,
(continued...)
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committee was, by resolution, given the power to subpoena both persons and records pursuant to
its investigation. Acting under its authority, the committee issued a subpoena duces tecum to one
Hallet Kilbourn, the manager of the real estate pool. When Mr. Kilbourn refused to produce
certain papers or answer questions before the committee he was arrested and tried under the
House’s inherent contempt power. The House adjudged Mr. Kilbourn in contempt and ordered
him detained by the Sergeant-at-Arms until he purged himself of contempt by releasing the
requested documents and answering the committee’s questions.66
Mr. Kilbourn filed a suit against the Speaker, the members of the committee, and the Sergeant-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.67 While the Court appeared to recognize that Congress possessed
an inherent contempt power, it declined to follow Anderson v. Dunn’s expansive view of
Congress’s authority. Moreover, the Court rejected any reliance on the English and colonial
precedents establishing the source and extent of Congress’s contempt power. The Court stated
that
[w]e are of opinion that the right of the House of Representatives to punish the citizen for a
contempt of its authority or a breach of its privileges can derive no support from the
precedents and practices of the two Houses of the English Parliament, nor from the adjudged
cases in which the English courts have upheld these practices. Nor, taking what has fallen
from the English judges, and especially the later cases on which we have just commented, is
much aid given to the doctrine, that this power exists as one necessary to enable either House
of Congress to exercise successfully their function of legislation.68
The Court held that the investigation into the real estate pool was not undertaken by the
committee pursuant to one of Congress’s constitutional responsibilities, but rather was an attempt
to pry into the personal finances of private individuals, a subject that could not conceivably result
in the enactment of valid legislation. According to the Court, because Congress was acting
beyond its constitutional responsibilities, Mr. Kilbourn was not legally required to answer the
questions asked of him. In short, the Court held that “no person can be punished for contumacy as
a witness before either House, unless his testimony is required in a matter into which that House
has jurisdiction to inquire, and we feel equally sure that neither of these bodies possesses the
general power of making inquiry into the private affairs of the citizen.”69
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

(...continued)
a subsequent criminal prosecution would be permissible since the double jeopardy clause bars only dual criminal
prosecutions. See S.Rept. No. 95-170, 95th Cong., 1st Sess., 89 (1977) (stating that “[o]nce a committee investigation
has terminated, a criminal contempt of Congress citation under 2 U.S.C. §192 might still be referred to the Justice
Department if the Congress finds this appropriate. Such prosecution for criminal contempt would present no double
jeopardy problem.”); see also Hearings Before the Senate Committee on Governmental Affairs on S. 555, 95th Cong.,
1st Sess., 798-800 (1977).
66 See 2 Hinds’s Precedents, supra note 27 at §1609.
67 Kilbourn v. Thompson, 103 U.S. 168, 189-90 (1881).
68 Id. at 189.
69 Id.
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could interfere with the judicial proceedings.70 The Court specifically challenged Congress’s
assertion that there were no other viable remedies available to the government to retrieve the lost
funds.71 Thus, the Court concluded that
the resolution of the House of Representatives authorizing the investigation was in excess of
the power conferred on that body by the Constitution; that the committee, therefore, had no
lawful authority to require Kilbourn to testify as a witness beyond what he voluntarily chose
to tell; that the orders and resolutions of the House, and the warrant of the speaker, under
which Kilbourn was imprisoned, are, in like manner, void for want of jurisdiction in that
body, and that his imprisonment was without any lawful authority.72
Finally, in dicta, the Court indicated that the contempt power might be upheld where Congress
was acting pursuant to certain specific constitutional prerogatives, such as disciplining its
Members, judging their elections, or conducting impeachment proceedings.
Although the precedential value of Kilbourn has been significantly limited by subsequent case
law, the case continues to be cited for the proposition that the House has no power to probe into
private affairs, such as the personal finances of an individual, on which legislation could not be
enacted. The doubts raised by Kilbourn about the scope of Congress’s contempt power have
essentially been removed by later cases sanctioning the use of the power in investigations
conducted pursuant to Congress’s authority to discipline its Members,73 to judge the elections of
its Members,74 and, most importantly, to probe the business and conduct of individuals to the
extent that the matters are subject to congressional regulation.75 For example, in McGrain v.
Daugherty
, which involved a Senate investigation into the claimed failure of the Attorney General
to prosecute certain antitrust violations, a subpoena was issued to the brother of the Attorney
General, Mallie Daugherty, the president of an Ohio bank. When Daugherty refused to comply,
the Senate exercised its inherent contempt power and ordered its Sergeant-at-Arms to take him
into custody. The grant of a writ of habeas corpus was appealed to the Supreme Court. The
Court’s opinion in the case considered the investigatory and contempt powers of Congress to be
implicit in the grant of legislative power.76 The Court distinguished Kilbourn, which was an
investigation into purely personal affairs, from the instant case, which was a probe of the
operation of the Department of Justice (DOJ). According to the Court, the subject was plainly
“one on which legislation could be had and would be materially aided by information the
investigation was calculated to elicit.”77 The Court in McGrain was willing to presume that the
investigation had been undertaken to assist the committee in its legislative efforts.78

70 273 U.S. 135 (1927).
71 Id. at 194 (questioning “[h]ow could the House of Representatives know, until it had been fairly tried, that the courts
were powerless to redress the creditors of Jay Cooke & Co.? The matter was still pending in a court, and what right had
the Congress of the United States to interfere with a suit pending in a court of competent jurisdiction?”).
72 Id. at 196.
73 In Re Chapman, 166 U.S. 661 (1897).
74 Barry v. United States ex rel Cunningham, 279 U.S. 597 (1929).
75 McGrain v. Daugherty, 273 U.S. 135 (1927).
76 Id.
77 Id. at 177.
78 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 62, 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
(continued...)
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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 or
detained in the Capitol or perhaps elsewhere.79 The purpose of the imprisonment or other sanction
may be either punitive80 or coercive.81 Thus, the witness can be imprisoned for a specified period
of time as punishment, or for an indefinite period (but not, at least by the House, beyond the end
of a session of the Congress) until he agrees to comply. One commentator has concluded that the
procedure followed by the House in the contempt citation that was at issue in Anderson v. Dunn is
typical of that employed in the inherent contempt cases.
These traditional methods may be explained by using as an illustration Anderson v. Dunn. ...
In 1818, a Member of the House of Representatives accused Anderson, a non-Member, of
trying to bribe him. ... The House adopted a resolution pursuant to which the Speaker
ordered the Sergeant-at-Arms to arrest Anderson and bring him before the bar of the House
(to answer the charge). When Anderson appeared, the Speaker informed him why he had
been brought before the House and asked if he had any requests for assistance in answering
the charge. Anderson stated his requests, and the House granted him counsel, compulsory
process for defense witnesses, and a copy, of the accusatory letter. Anderson called his
witnesses; the House heard and questioned them and him. It then passed a resolution finding
him guilty of contempt and directing the Speaker to reprimand him and then to discharge
him from custody. The pattern was thereby established of attachment by the Sergeant-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.82
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.83 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,84 and (b) whether the contempt proceedings complied

(...continued)
States and, therefore, it could not be said that purely personal affairs were the subjects of the investigations.
79Given Congress’s plenary power over the District of Columbia, the contemnor could potentially be detained or jailed
in a D.C. Metropolitan Police Department facility. See Art. I § 8 (“The Congress shall have Power…To exercise
exclusive Legislation in all Cases whatsoever, over such District…as may…become the Seat of the Government of the
United States.”).
80 Jurney v. MacCracken, 294 U.S. 125, 147 (1935).
81 McGrain v. Daugherty, 273 U.S. at 161.
82 Thomas L. Shriner, Jr., Legislative Contempt and Due Process: The Groppi Cases, 46 IND. L. J. 480, 491 (1971)
[hereinafter Shriner].
83 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].
84 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).
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with minimum due process standards.85 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.86 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.87
Although many of the inherent contempt precedents have involved incarceration of the
contemnor, there may be an argument for the imposition of monetary fines as an alternative. Such
a fine would potentially have the advantage of avoiding a court proceeding on habeas corpus
grounds, as the contemnor would never be jailed or detained. Drawing on the analogous authority
that courts have to inherently impose fines for contemptuous behavior,88 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.89
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....”90 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 not aware of, and could not locate,
any precedent for Congress imposing a fine in the contempt 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,

85 Groppi v. Leslie, 404 U.S. 496 (1972).
86 Id.
87 For a discussion of these statutory limitations on the contempt power see infra at notes 279-351 and accompanying
text.
88 See, e.g., United States v. United Mine Workers, 330 U.S. 258 (1947) (upholding a $700,000 fine against a labor
union as punishment for disobedience of a preliminary injunction preventing it from continuing a worker strike and
approving the imposition of a $2.8 million fine if the union did not end the strike within five days).
89 Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 230-31 (1821) (emphasis added).
90 Kilbourn v. Thompson, 103 U.S. 168, 190 (1881) (emphasis added).
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compared to the plenary review accorded by the courts in cases of conviction under the criminal
contempt statute.
There are also certain limitations on the inherent contempt process. Although the contemnor can
be incarcerated until he agrees to comply with the subpoena, imprisonment may not extend
beyond the end of the current session of Congress.91 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.92 Because of these drawbacks, the inherent contempt process has not been used by either
body since 1935.93 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,94 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.95
Inherent Contempt Proceedings By Committees of Congress
As has been indicated, although the majority of the inherent contempt actions by both the House
and the Senate were conducted via trial at the bar of the full body, there is historical evidence to
support the notion that this is not the exclusive procedure by which such proceeding can occur.
This history, when combined with a 1993 Supreme Court decision addressing the power of
Congress to make its own rules for the conduct of impeachment trials,96 strongly suggests that the
inherent contempt process can be supported and facilitated by the conduct of evidentiary
proceedings and the development of recommendations at the committee level.
Actually, the consideration of the use of committees to develop the more intricate details of an
inquiry into charges of contempt of Congress date back to the very first inherent contempt
proceedings of Messrs. Randall and Whitney in 1795. As discussed above, in these cases the
House appointed a Committee on Privileges to report a mode of procedure. The Committee
reported the following resolution, which was adopted by the full House of Representatives:
Resolved, That the said Robert Randall and Charles Whitney be brought to the bar of the
House and interrogated by the Speaker touching the information given against them, on

91 Watkins v. United States, 354 U.S. 178, 207, n.45 (1957); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 231 (1821).
92 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].
93 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 93, at 255.
94 See Beck, supra note 26, at 4; ERNEST J. EBERLING, CONGRESSIONAL INVESTIGATIONS 289 (1928) [hereinafter
Eberling].
95 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.
96 See United States v. Nixon, 506 U.S. 224 (1992).
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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
.97
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.98 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.”99 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.”100 It
was recommended that, “the subject should be remanded to a committee, which would save a
good deal of time.”101 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.”102
Ultimately, it appears that none of the proceedings in this case was conducted before a select
committee. That said, Congress’s interpretation of its own powers and prerogatives is significant.
It is clear that during the very first exercise of Congress’s power of inherent contempt, the House
allowed for the possibility that at least some of the proceedings could occur before a committee,
rather than at the bar of the House.
This early precedent was finally invoked in 1836, when after the assault of reporter Robert Codd
by reporter Henry Wheeler on the House floor, the House committed the examination of a
contempt and breach of privilege to a select committee. The House adopted the following
resolution empowering the committee to conduct a contempt investigation:
Resolved, That a select committee be forthwith appointed, whose duty it shall be forthwith to
inquiry into an assault committed within the Hall of the House of Representatives this
morning, while this House was in session and for and on account of which two persons are
now in custody of the Sergeant-at-Arms; and said committee are to make their report to this
House; and that said committee be authorized to administer oaths and to cause the attendance
of witnesses.103
The Committee’s report noted that Mr. Wheeler admitted his offense and included a
recommendation that the punishment not be vindictive.104 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

97 See 2 Hinds’s Precedents, supra note 27 at §1599 (emphasis added).
98 See 5 ANNALS OF CONG. 188 (1792).
99 See id. (statement of Rep. Baldwin).
100 Id. at 189 (statement of Rep. W. Smith).
101 Id. at 190 (statement of Rep. W. Smith).
102 Id. at 188 (statement of Rep. Hillhouse).
103 2 Hinds’s Precedents, supra note 27 at §1630.
104 See id.; see also H.Rept. 792, 24th Cong. 1st Sess., (1836).
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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.105
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.106
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....”107
The select committee, in its report to the full House, noted that it had heard the testimony of
several witnesses concerning the incident, including the voluntary statement of Mr. Field.108 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.109 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.110 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,”111 which may be
interpreted as indicating that the committee’s proceedings were deemed to be sufficient in the
eyes of the House.

105 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).
106 CONG. GLOBE, 38th Cong., 2nd Sess., 371 (1865).
107 Id. (statement of Rep. Thayer).
108 Id. at 971.
109 Id.
110 Id. at 972-74.
111 Id. at 991 (emphasis added).
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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,112 which, while not a contempt case, involved an analogous
delegation of authority by the Senate to a select committee for the purposes of hearing evidence
regarding the impeachment of two federal judges. Specifically, the impeached judges challenged
the Senate’s procedure under Rule XI of the “Rules of Procedure and Practice in the Senate when
Sitting on Impeachment Trials,” which provides:
That in the trial of any impeachment the Presiding Officer of the Senate, if the Senate so
orders, shall appoint a committee of Senators to receive evidence and take testimony at such
times and places as the committee may determine
, and for such purpose the committee so
appointed and the chairman thereof, to be elected by the committee, shall (unless otherwise
ordered by the Senate) exercise all the powers and functions conferred upon the Senate and
the Presiding Officer of the Senate, respectively, under the rules of procedure and practice in
the Senate when sitting on impeachment trials.
Unless otherwise ordered by the Senate, the rules of procedure and practice in the Senate
when sitting on impeachment trials shall govern the procedure and practice of the committee
so appointed. The committee so appointed shall report to the Senate in writing a certified
copy of the transcript of the proceedings and testimony had and given before the committee,
and such report shall be received by the Senate and the evidence so received and the
testimony so taken shall be considered to all intents and purposes, subject to the right of the
Senate to determine competency, relevancy, and materiality, as having received and taken
before the Senate, but nothing herein shall prevent the Senate from sending for any witness
and hearing his testimony in open Senate, or by order of the Senate having the entire trial in
open Senate.113
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.”114 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.’”115 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.”116 Justice Souter’s concurring
opinion noted that “[i]t seems fair to conclude that the [Impeachment] Clause contemplates that

112 506 U.S. 224 (1993).
113 Id. at 227, n. 1 (emphasis added).
114 Id. at 739.
115 Id. (quoting United States v. Nixon, 938 F.2d 239, 246 (D.C. Cir. 1991)).
116 Id. at 740.
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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.”117
The Court’s affirmation of the Senate’s procedures with respect to the appointment of select
committees for impeachment trials, clearly indicates that the use of committees for contempt
proceedings—whether they be standing legislative committees, or select committees created by
resolution for a specific purpose—is a permissible exercise of each House’s Article I, Section 5
rulemaking power. As such, it would appear that one of the suggested reasons for the apparent
abandonment of the use of Congress’s inherent contempt power, namely, that it became to
cumbersome and time consuming to try contemptuous behavior on the floor of the body, is no
longer compelling. The ability to utilize the committee structure for trials, evidentiary hearings,
and other procedural determinations appears to be supported not only by the historical records of
previous contempt proceedings, but also by the Court’s decision in Nixon.
While the Court in Nixon addressed the permissibility of using select committees in impeachment
trials, it says nothing about the rights or privileges that would be required to be afforded to the
accused. Similarly, in any contempt proceedings before a congressional committee, the question
of rights and privileges remains one that has not yet been directly addressed by the courts.
According to the Supreme Court in Groppi v. Leslie,
[t]he past decisions of this Court strongly indicate that the panoply of procedural rights that
are accorded a defendant in a criminal trial has never been thought necessary in legislative
contempt proceedings. The customary practice in Congress has been to provide the
contemnor with an opportunity to appear before the bar of the House, or before a committee,
and give answer to the misconduct charged against him.118
The Court also suggested that “the length and nature of the [right to be heard] would traditionally
be left largely to the legislative body....”119 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,120 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.

117 Id. at 748 (Souter, J., concurring).
118 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)).
119 Id. at 503.
120 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).
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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.”121 Since these
procedures appear to be in excess of what the Court instructed was required in Groppi, it would
seem reasonable to conclude that any inherent contempt proceeding that conforms with these
traditions would likely satisfy judicial review.
Statutory Criminal Contempt
Between 1795 and 1857, 14 inherent contempt actions were initiated by the House and Senate,
eight of which can be considered successful in that the contemnor was meted out punishment,
agreed to testify or produce documents. Such inherent contempt proceedings, however, involved a
trial at the bar of the chamber concerned and, therefore, were seen by some as time-consuming,
cumbersome, and in some instances ineffective—because punishment could not be extended
beyond a House’s adjournment date.122 In 1857, a statutory criminal contempt procedure was
enacted,123 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.124 With
only minor amendments, those statutory provisions are codified today as 2 U.S.C. §§192 and 194,
which state the following:
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.125

121 Shriner, supra note 82 at 491.
122 See Eberling, supra note 94 at 302-16.
123 Act of January 24, 1857, c. 19 §3, 11 Stat. 156 (1857) (codified as amended at 2 U.S.C. §§192, 194 (2000)). The
constitutionality of the statute was upheld by the Supreme Court in 1897. See In re Chapman, 166 U.S. 661 (1897).
124 Beck, supra note 26 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.
125 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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Whenever a witness summoned as mentioned in Section 192 of this title fails to appear to
testify or fails to produce any books, papers, records, or documents, as required, or whenever
any witness so summoned refuses to answer any question pertinent to the subject under
inquiry before either House, or any joint committee established by a joint or concurrent
resolution of the two Houses of Congress, or any committee or subcommittee of either
House of Congress, and the fact of such failure or failures is reported to either House while
Congress is in session or when Congress is not in session, a statement of fact constituting
such failure is reported to and filed with the President of the Senate or the Speaker of the
House, it shall be the duty of the said President of the Senate or Speaker of the House, as the
case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal
of the Senate or House, as the case may be, to the appropriate United States attorney, whose
duty it shall be to bring the matter before the grand jury for its action.126
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.127 The select committee responded by
reporting a resolution citing Mr. Simonton for contempt, as well as introducing a bill128 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.”129 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.130
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.131 Others argued
that Congress’s inherent contempt powers rendered the proposed bill unnecessary.132 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).133
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.134 Rather, supporters of the bill saw

126 2 U.S.C. §194 (2000).
127 See Eberling, supra note 94 at 302-04.
128 H.R. 757, 34th Cong., 3d Sess. (1857).
129 42 CONG. GLOBE. 34th Cong., 3d Sess., 403-04 (1857) (discussing H.R. 757).
130 See id. at 425-26.
131 See Eberling, supra note 94 at 309..
132 Id. at 311.
133 Id. at 309.
134 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 all....”)
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it as designed to give Congress “additional authority, and to impose additional penalties on a
witness who fails to appear before an investigating committee of either House, or who, appearing,
fails to answer any question.”135 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.
Dunn
136 prohibited terms of incarceration that extended beyond the adjournment of a session.137
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.”138
The bill was ultimately passed by both the House139 and the Senate.140 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.141
Under 2 U.S.C. §192, a person who has been “summoned as a witness” by either House or a
committee thereof to testify or to produce documents and who fails to do so, or who appears but
refuses to respond to questions, is guilty of a misdemeanor, punishable by a fine of up to
$100,000 and imprisonment for up to one year. 2 U.S.C. §194 establishes the procedure to be
followed by the House or Senate if it chooses to refer a recalcitrant witness to the courts for
criminal prosecution rather than try him at the bar of the House or Senate. Under the procedure
outlined in Section 194,142 “the following steps precede judicial proceedings under [the statute]:
(1) approval by committee;143 (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

135 Eberling, supra note 94 at 306; see also 42 CONG. GLOBE, 34th Cong., 3d Sess., 405 (1857) (statement of Mr. Orr).
136 See supra notes 50-64 and accompanying text.
137 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;....”).
138 Eberling, supra note 94 at 313 (citing 42 CONG. GLOBE, 34th Cong. 3d Sess., 427 (1857) (statement of Mr. Davis).
139 42 CONG. GLOBE, 34th Cong., 3d Sess., 433 (1857).
140 Id. at 445.
141 Eberling, supra note 94 at 316.
142 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 93, at §§17-22.
143 In case of a defiance of a subcommittee subpoena, subcommittee approval of the contempt citation precedes
committee action on the matter.
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determination by the Speaker to certify the report;144 [and] (4) certification by the Speaker to the
appropriate U.S. Attorney for prosecution.145
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.146 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,147
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.148
Under the statute, after a contempt has been certified by the President of the Senate or the
Speaker, it is the “duty” of the United States Attorney “to bring the matter before the grand jury
for its action.”149 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,150 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.151 The court ordered the witnesses released since the procedure, described as
“mandatory” by the court,152 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.

144 See Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966).
145 4 Deschler’s Precedents, supra note 93, 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.
146 See, e.g., S.Rept. No. 95-170, 95th Cong., 1st Sess., 97 (1977).
147 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).
148 See 4 Deschler’s Precedents, supra note 93, ch. 15, 521 (witness before the House Committee on Un-American
Activities voluntarily purged himself of his contempt); see also H.Res. 180, 98th Cong. (resolution stating that
prosecution of Anne Gorsuch Burford, Administrator of the Environmental Protection Agency, was not required
following implementation of an agreement granting the House access to documents which had been withheld under a
claim of executive privilege).
149 2 U.S.C. §194 (2000).
150 32 F.Supp 915 (D.D.C. 1940).
151 Id. at 916.
152 Id.
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It seems quite apparent that Congress intended to leave no measure of discretion to either the
Speaker of the House or the President of the Senate, under such circumstances, but made the
certification of facts to the district attorney a mandatory proceeding, and it left no discretion
with the district attorney as to what he should do about it. He is required, under the
language of the statute, to submit the facts to the grand jury.
153
Similarly, in United States v. United States House of Representatives,154 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.”155
Conversely, in Wilson v. United States,156 the United States Court of Appeals for the District of
Columbia Circuit concluded, based in part on the legislative history of the contempt statute and
congressional practice under the law, that the “duty” of the Speaker when certifying contempt
citations to the United States Attorney during adjournments is a discretionary, not a mandatory,
one.157 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.158 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.159 In Wilson, the defendants’ convictions were reversed because the Speaker had
certified the contempt citations without exercising his discretion.160 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.161 Nevertheless, it should be noted that the courts have generally
afforded U.S. Attorneys broad prosecutorial discretion, even where a statute uses mandatory
language.162 Prosecutorial discretion was the principal basis of the U.S. Attorney’s decision not to

153 Id. (emphasis added).
154 United States v. United States House of Representatives, 556 F. Supp. 150, 151 (D.D.C. 1983).
155 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.
156 369 F.2d 198 (D.C. Cir. 1966).
157 Id. at 201-03.
158 Id. at 203-04.
159 See id.
160 Id. at 205.
161 See id. at 201-02.
162 See Confiscation Cases, 74 U.S. (7 Wall.) 454 (1868); see also United States v. Nixon, 418 U.S. 683, 694 (1974);
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present the grand jury with the contempt citations of Environmental Protection Agency
Administrator Anne Gorsuch Burford in 1982, former White Housel Counsel Harriet Miers and
White House Chief of Staff Joshua Bolten in 2008, and Attorney General Eric Holder in 2012.163
Finally, 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.164
Civil Enforcement of Subpoenas
Where the use of inherent or criminal contempt is unavailable or unwarranted, Congress may
invoke the authority of the judicial branch in an effort to enforce a congressional subpoena. Civil
enforcement entails a single house or committee of Congress filing suit in federal district court
seeking a declaration that the individual in question is legally obligated to comply with the
congressional subpoena.165 If the court finds that such an obligation exists and issues an order to
that effect, continued non-compliance may result in contempt of court—as opposed to contempt
of Congress.166 Although the Senate has existing statutory authority to pursue such an action,
there is no corresponding provision applicable to the House.167 However, the House has
previously pursued civil enforcement pursuant to an authorizing resolution.168
Civil Enforcement in the Senate
As an alternative to both the inherent contempt power of each House and the criminal contempt
statutes,169 in 1978 Congress enacted a civil enforcement procedure,170 which is applicable only to

(...continued)
Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 376 (2d Cir. 1973); Moses v. Kennedy, 219 F. Supp.
762, 765 (D.D.C. 1963), aff ‘d sub. nom., Moses v . Katzenbach, 342 F.2d 931 (D.C. Cir. 1965).
163 See Examining and Reviewing the Procedures That Were Taken by the 0ffice of the U.S. Attorney for the District of
Columbia in Their Implementation of a Contempt Citation that Was Voted by the Full House of Representatives against
the Then-Administrator of the Environmental Protection Agency, Anne Gorsuch Burford
, Hearing before the House
Committee on Public Works and Transportation, 98th Cong., 1st Sess., 30 (1983) [hereinafter Burford Contempt
Prosecution Hearing]. The U.S. Attorney also suggested that it would have been inappropriate for him to institute a
criminal suit against Burford while a related civil action brought by the Justice Department against the House was
pending). See Letter from U.S. Attorney Stanley Harris to Speaker Thomas P. O’Neill, December 27, 1982, reprinted
in
, H.Rept. 98-323, 98th Cong., 1st Sess., 48-49 (1983); Letter from Attorney General Michael B. Mukasey to Speaker
of the House Nancy Pelosi, Feb. 29, 2008; Letter from Deputy Attorney General James M. Cole to Speaker of the
House John Boehner, June 28, 2012. Of course, as a practical matter, even if the United States Attorney is required to
refer a contempt under 2 U.S.C. §§192, 194 to the grand jury, there is no apparent requirement that the United States
Attorney concur in the prosecution of any subsequent indictment. See FED. R. CRIM. PRO. 7(c); see also United States v.
Cox
, 342 F.2d 167 (5th Cir. 1965).
164 See infra notes 279-325 and accompanying text.
165 See, e.g., 2 U.S.C. §288d (“When directed … the counsel shall bring a civil action … to enforce, to secure a
declaratory judgment concerning the validity of, or to prevent a threatened failure or refusal to comply with, any
subpoena or order issued by the Senate.”).
166 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).
167 2 U.S.C. §§288b(b), 288d, and 1365.
168 See, “The Bolten and Miers Contempt: Committee on the Judiciary v. Miersinfra.
169 The inadequacies of the inherent and criminal contempt procedures had been recognized by the Congress itself, the
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the Senate.171 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.172
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.”173 It is solely within
the discretion of the Senate whether or not to use such a two-step enforcement process.174
Regardless of whether the Senate seeks the enforcement of, or a declaratory judgment concerning
a subpoena, the court will first review the subpoena’s validity.175 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,176 “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.177 If the individual still refuses to comply, he may be tried by
the court in summary proceedings for contempt of court,178 with sanctions being imposed to
coerce their compliance.179

(...continued)
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 81.
170 Ethics in Government Act of 1978, P.L. 95-521, §§703, 705, 92 Stat. 1877-80 (1978) (codified as amended at 2
U.S.C. §§288b(b) 288d, and 28 U.S.C. §1365 (2000)).
171 The conference report accompanying the legislation which established the procedure explained that the relevant
House committees had not yet considered the proposal for judicial enforcement of House subpoenas. H.Rept. 95-1756,
95th Cong., 2d Sess., 80 (1978).
172 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).
173 S.Rept. No. 95-170, 95th Cong., 1st Sess., 89 (1977).
174 Id. at 90.
175 Id. at 4.
176 See U.S. CONST. Art. 1, §6, cl. 3.
177 S.Rept. No. 95-170, 95th Cong., 1st Sess., 94 (1977).
178 See, S.Rept. No. 95-170, 95th Cong., 1st Sess., 41, 92. It is also worth noting that the Senate has in place a standing
order, adopted in 1928, that appears to provide the authority, independent of the civil enforcement statute, for a
committee to seek a court order to enforce its subpoenas. The standing order states that
Resolved, That hereafter any committee of the Senate is hereby authorized to bring suit on behalf
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Without affecting the right of the Senate to institute criminal contempt proceedings or to try an
individual for contempt at the bar of the Senate,180 this procedure gives the Senate the option of a
civil action to enforce a subpoena.181 Civil enforcement might be employed when the Senate is
more concerned with securing compliance with the subpoena or with clarifying legal issues than
with punishing the contemnor. Unlike criminal contempt, in a civil enforcement, sanctions
(imprisonment and/or a fine) can be imposed until the subpoenaed party agrees to comply thereby
creating an incentive for compliance; namely, the termination of punishment.182 Since the statute’s
enactment in 1979, the Senate has authorized the Office of Senate Legal Counsel to seek civil
enforcement of a subpoena for documents or testimony at least 6 times, the last in 1995. None has
been against executive branch officials.
The civil enforcement process is arguably more expeditious than a criminal proceeding, where a
court may more closely scrutinize congressional procedures and give greater weight to the
defendant’s constitutional rights. The civil enforcement procedure also provides an element of
flexibility, allowing the subpoenaed party to raise possible constitutional and other defenses (e.g.,
the privilege against self-incrimination, lack of compliance with congressional procedures, or an
inability to comply with the subpoena)183 without risking a criminal prosecution.

(...continued)
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 enforcement procedure in
1978 has had on this Standing Order. The Standing Order appears to have never been invoked and, therefore, its
validity remains an open question.
179 28 U.S.C. §1364(b) (2000).
180 Not only do the inherent and criminal contempt procedures remain available as an alternative to the civil
enforcement mechanism, but the legislative history indicates that the civil and criminal statutes could both be employed
in the same case. “Once a committee investigation has terminated, a criminal contempt of Congress citation under 2
U.S.C. §192 might still be referred to the Justice Department if the Congress finds this appropriate. Such prosecution
for criminal contempt would present no double jeopardy problem.” S.Rept. No. 95-170, 95th Cong., 1st Sess., 95
(citations omitted); see also Hearings Before the Senate Committee on Governmental Affairs on S. 555, 95th Cong., 1st
Sess., 798-800 (1977) [hereinafter Civil Contempt Hearing].
181 For a more detailed analysis of the civil enforcement procedure and a comparison with the other options available to
the Senate when faced with a contempt, See S.Rept. No. 95-170, 95th Cong., 1st Sess., 16-21, 40-41, 88-97; see also 123
CONG. REC. 20,956-21,019 (June 27, 1977).
182 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).
183 S.Rept. No. 95-170, 95th Cong., 1st Sess., 93.
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Civil enforcement, however, has limitations. Most notable is that the statute granting jurisdiction
to the courts to hear such cases is, by its terms, inapplicable in the case of a subpoena issued to an
officer or employee of the federal government acting in their official capacity.184 Enacted as part
of the Ethics in Government Act of 1978, early drafts of the civil enforcement statute did not
include an exception for federal government officers and employees acting within the scope of
their duties. It appears that the section was drafted primarily in response to the District Court’s
dismissal, for lack of jurisdiction, of an Ervin Committee’s request for a declaratory judgment
regarding the lawfulness of its subpoena of President Nixon’s tape recordings.185 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.”186 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.187
Civil Enforcement in the House of Representatives
While the House of Representatives cannot pursue actions under the Senate’s civil enforcement
statute discussed above, past precedent and the decision of the U.S. District Court for the District
of Columbia in Committee on the Judiciary v. Miers suggest that the House may authorize a
committee to seek a civil enforcement action to force compliance with a subpoena.188 Prior to
Miers—which represented the first congressional attempt to seek civil enforcement of a subpoena
in federal court authorized solely by resolution of a single house—a number of threshold

184 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
185 See Senate Select Committee on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51 (D.D.C. 1973).
186 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).
187 Clarifying the Investigatory Powers of the United States Congress, H.Rept. 100-1040, 100th Cong. 2d Sess., 2
(1988).
188 558 F. Supp. 2d 53 (D.D.C. 2008).
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questions, including whether the federal courts would have jurisdiction over such a claim,
remained unresolved.
The jurisdiction of the federal district courts, where a civil action for enforcement of a
congressional subpoena would be brought, is derived from both Article III of the Constitution and
federal statute. Article III states, in relevant part, that “[t]he judicial Power shall extend to all
Cases, in Law and Equity, arising under this Constitution, the Laws of the United States....”189
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.”190 Conversely, the federal question jurisdiction statute, first enacted in 1875,191 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....”192
The fact that the statutory jurisdiction provided by Congress is narrower than the Constitution’s
grant of judicial power may give rise to an argument that the statutory grant of jurisdiction cannot
be used by the House should it merely adopt a resolution authorizing a subpoena enforcement
proceeding to be brought in court. Following this argument to its conclusion might suggest that
both houses of Congress must pass a law, signed by the President, which authorizes a civil
enforcement action to be brought in federal district court because a mere one-house resolution
will not suffice to provide such jurisdiction. However, the limited precedent from the Supreme
Court and other federal courts, especially the federal district court decision in Committee on the
Judiciary v. Miers
, may be read to suggest that the current statutory basis is sufficient to establish
jurisdiction for a civil action of the type contemplated here if the representative of the
congressional committee is specifically authorized by a house of Congress to act.
In 1928, the Supreme Court decided Reed v. The County Commissioners of Delaware County,
Pennsylvania,
193 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.194 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.”195 During the course of its

189 U.S. CONST., Art. III, §2, cl. 1.
190 See ERWIN CHEMERINSKY, FEDERAL JURISDICTION, 264 (3d Ed. 1999) (citing Osborn v. Bank of the United States, 22
U.S. (9 Wheat.) 738 (1824)).
191 See Act of March 3, 1875, ch. 137, 18 Stat. 470 (codified as amended at 28 U.S.C. §1331 (stating that “[t]he district
courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United
States.”).
192 Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 494-95 (1983) (internal quotation marks and citations
omitted).
193 277 U.S. 376 (1928).
194 Id. at 378 (citing S. Res 195, 69th Cong., 1st Sess. (1926)).
195 Id. at 378-79.
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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.”196 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”197 and having “passed laws calculated to facilitate such investigations,”198
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.”199 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.’”200 The
Court in Reed made no mention of the jurisdictional statute that existed at the time. Rather, the
Court appears to have relied on the fact that the Senate did not specifically authorize the
committee to sue; therefore, absent particular language granting the power to sue in court, there
can be no basis for judicial jurisdiction over such a suit.201 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,202 the plaintiffs, all minority members of the House Government Reform Committee,
sought a court order pursuant to 5 U.S.C. §§2954 and 7211—often times referred to as the “rule
of seven”—granting them access to Department of Health and Human Services records related to
the anticipated costs of the Medicare Prescription Drug Implementation and Modernization Act of
2003.203 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,”204 implicitly delegated to Members to right to sue to enforce their
informational demands.205 The court, in rejecting this argument, relied on the Supreme Court’s
holding in Reed v. County Commissioners.206 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.”207 According to the

196 Id. at 387.
197 Id. at 388 (citing McGrain v. Daugherty, 273 U.S. 135, 160-174 (1927)).
198 Id. (citing R.S. §§101-104, (codified as amended at 2 U.S.C. §§192, 194 (2000))).
199 Id. at 389.
200 Id.
201 It appears that the Court’s decision in Reed prompted the Senate to adopt its Standing Order.
202 Waxman v. Thompson, No. 04-3467, slip op. (C.D. Cal. July 24, 2006).
203 Id. at 2.
204 5 U.S.C. §2954 (2000) (emphasis added).
205 Waxman v. Thompson, No. 04-3467, slip op. at 21 (C.D. Cal. July 24, 2006).
206 Id. at 21, n. 42.
207 Id.
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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. According to the court in
Waxman, the holdings of Reed, Senate Select Committee and United States v. AT&T208—a case
involving the intervention by a House committee chairman into a lawsuit by the DOJ, which was
attempting to enjoin compliance with a committee subpoena by AT&T—suggest that “legislative
branch suits to enforce requests for information from the executive branch are justiciable if
authorized by one or both Houses of Congress
.”209
The argument that a mere one-house resolution is not sufficient to provide jurisdiction chiefly
derives its support from the ruling in Senate Select Committee on Presidential Campaign
Activities v. Nixon
,210 a 1973 decision by the U.S. District Court for the District of Columbia. In
Senate Select Committee, the court held that there was no jurisdictional statute available that
authorizes the court to hear and decide the merits of the Committee’s request for a declaratory
judgment, mandatory injunction, and writ of mandamus arising from President Nixon’s refusal to
produce tape recordings and other documents sought by the Committee pursuant to a subpoena
duces tecum
.211 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.212
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.”213 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
.”214
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.215
The 2008 district court opinion in Committee on the Judiciary v. Miers made clear that the lack of
subject matter jurisdiction in Senate Select Committee was based solely on the jurisdictional
amount in controversy—which has since been repealed—216and not on any larger limit on the
reach of federal question jurisdiction.217 In Miers, the House Judiciary Committee was authorized,

208 567 F.2d 121.
209 Waxman v. Thompson, No. 04-3467, slip op. at 29 (C.D. Cal. July 24, 2006) (emphasis added).
210 366 F. Supp. 51 (D.D.C. 1973).
211 Id. at 61.
212 Id. at 55-61.
213 28 U.S.C. §1331 (1970).
214 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).
215 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.”).
216 See P.L. 96-486 §2(a), 94 Stat. 2369 (1980).
217 Committee on the Judiciary v. Miers, 558 F. Supp. 2d. 53, 64 (D.D.C. 2008) (“Both sides concede, and the Court
agrees, that 28 U.S.C. §1331 provides subject matter jurisdiction over this lawsuit.”).
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by resolution, to pursue civil enforcement of subpoenas issued against former White House
Counsel Harriet Miers and White House Chief of Staff Joshua Bolten.218 The Miers court, without
significant discussion, succinctly stated that although the district court in Senate Select Committee
had dismissed the claim for failure to satisfy the amount in controversy requirement, “that
requirement no longer exists and there is no other impediment to invoking §1331 subject matter
jurisdiction.”219 The court expressly held that because the subpoena power at issue in the suit
“derives implicitly from Article I of the Constitution, this case arises under the Constitution for
purposes of §1331” and, therefore, qualifies for federal question jurisdiction.220
Following Miers, it appears that all that is legally required for House committees, the House
general counsel, or a House-retained private counsel to seek civil enforcement of subpoenas or
other orders is that authorization be granted by resolution of the full House.221 Absent such
authorization, it appears that the courts will not entertain civil motions of any kind on behalf of
Congress or its committees. While some may still argue that a measure passed by both houses and
signed by the President conferring jurisdiction is required, it appears that—at least with respect to
claims filed in the U.S District Court for the District of Columbia—if an authorizing resolution by
the House can be obtained, there is a likelihood that the court will find no legal impediment to
seeking civil enforcement of subpoenas or other committee orders.222
In the summer of 2012, the House again authorized a congressional committee to pursue a civil
action in federal court to enforce a subpoena in connection with the approval of a contempt
citation against an executive branch official.223 On June 28, 2012, in addition to holding Attorney
General Eric Holder in contempt of Congress for his failure to comply fully with subpoenas
issued pursuant to the House Oversight and Government Reform Committee investigation of
Operation Fast and Furious, the House also approved a resolution authorizing Chairman Darrell
Issa to initiate a civil lawsuit on behalf of the Committee to enforce the outstanding subpoenas.224
The lawsuit, which seeks a declaratory judgment directing the Attorney General to comply with

218 The Miers litigation is discussed in greater detail infra.
219 Miers, 558 F. Supp. 2d. at 65.
220 Id. at 64. The court also determined that the committee had standing to bring the claim and that the Constitution
provided an implied cause of action necessary to authorize the suit. Id. at 66-99 (“It is the Constitution, and not any
independent cause of action, that supplies the basis for Congress’s right to invoke the [Declaratory Judgment Act]
here.”).
221 Although Miers is the only judicial opinion discussing the merits of federal court jurisdiction over a civil suit to
enforce a subpoena, it should be noted that its precedential value is limited to that which is traditionally accorded a
district court decision.
222 Relatedly, the Department of Justice has, on numerous occasions, including most recently in 1996, suggested that
committees of Congress resolve inter-branch disputes involving the enforcement of subpoenas by civil proceeding in
federal court. See, e.g., H.Rept. 104-598, 104th Cong., 2d Sess., 63 (1996) (additional views of Hon. William F.
Clinger, Jr.) (stating that “I am astonished at hearing this recommendation by a Democrat President when the
contemnor is a Democrat after knowing that the concept of a civil remedy has been so resoundingly rejected by
previous Democrat Congresses when the contemnor was a Republican.”); 10 Op. Off. Legal Counsel, 68, 87-89 (1986)
(suggesting that “the courts may be willing to entertain a civil suit brought by the House to avoid any question about
the possible applicability of the criminal contempt provisions of [2 U.S.C.] §§192 and 194.”); 8 Op. Off. Legal
Counsel, 101, 139, n.40 (1984) (stating that “[t]he use of criminal contempt is especially inappropriate ... because
Congress has the clearly available alternative of civil enforcement proceedings.”).
223 See “The Holder Contempt” infra.
224 See H.Res. 711, 112th Cong. (2012) (holding Attorney General Holder in contempt of Congress); H.Res. 706, 112th
Cong. (2012) (authorizing Chairman Issa to initiate judicial proceeding to enforce the Committee subpoena).
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the Committee subpoenas, was filed on August 13, 2012 and is currently pending before the U.S.
District Court for the District of Columbia.225
Special Investigatory Committees
There have been numerous examples of the House, by resolution, affording special investigatory
committees authority not ordinarily available to its standing committees. Such special panels have
often been vested with staff deposition authority, and given the particular circumstances, special
panels have also been vested with the authority to obtain tax information, as well as the authority
to seek international assistance in information gathering efforts abroad.226 In addition, several
special panels have been specifically granted the authority to seek judicial orders and participate
in judicial proceedings.227
For example, in 1987, the House authorized the creation of a select committee to investigate the
covert arms transactions with Iran (Iran-Contra). As part of this resolution, the House provided
the following authorization:
(3) The select committee is authorized ... to require by subpoena or otherwise the attendance
and testimony of such witnesses ... as it deems necessary, including all intelligence materials
however classified, White House materials, ... and to obtain evidence in other appropriate
countries with the cooperation of their governments. ... (8) The select committee shall be
authorized to respond to any judicial or other process, or to make any applications to court,
upon consultation with the Speaker consistent with [House] rule L.228
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).229 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.230 When Mr. Secord refused to sign the consent directive, the committee sought to

225 Complaint, Committee on Oversight and Government Reform v. Holder, No. 1:12-cv-1332 (D.D.C. Aug. 13, 2012).
Available at http://images.politico.com/global/2012/08/housevholdercomp.pdf.
226 See supra note 24.
227 Id.
228 See H.Res. 12, 100th Cong., 1st Sess., §§3, 8 (1987) (emphasis added).
229 This resolution was initially added to the House Rules as Rule L by the 97th Congress. See H.Res. 5, 97th Cong.
(1981). The 106th Congress re-codified the rules and this provision became House Rule VIII, which is where it remains
today as amended. See H.Res. 5, 106th Cong. (1999).
230 Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition v. Secord, 664
F.Supp. 562, 563 (D.D.C. 1987).
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obtain a court order directing him to comply.231 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.232 Thus, the court concluded
that the committee’s order was a violation of Mr. Secord’s Fifth Amendment right against self-
incrimination.233
Committee Intervention in Subpoena Related Litigation
Although, as indicated, prior to the Miers dispute there have been no previous attempts by a
House of Congress to seek civil enforcement of subpoenas in federal court authorized solely by
resolution of a single House,234 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.”235 Before AT&T could comply
with the request, the DOJ and the Subcommittee’s chairman, Representative John Moss, entered
into negotiations seeking to reach an alternate agreement which would prevent AT&T from
having to turn over all its records.236 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.237 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.”238 In addition, the
resolution authorized Chairman Moss to hire a special counsel, use not more than $50,000 from

231 Id.
232 Id. at 564-65.
233 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).
234 The recent litigation filed during the 110th Congress by the House Judiciary Committee represents the first such
attempt at civil enforcement. See infra notes 405-416 and accompanying text.
235 United States v. American Telephone & Telegraph, 551 F.2d 384, 385 (D.C. Cir. 1976).
236 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.
237 See H.Res. 1420, 94th Cong. 2d Sess. (1976); see also H.Rept. 94-1422, 94th Cong. 2d Sess. (1976).
238 Id.
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the contingent fund of the Committee to cover expenses, and to report to the full House on
matters related as soon as practicable.239 The resolution was adopted by the House by a vote of
180-108 on August 26, 1976.240
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.241 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.242 The district court granted Chairman Moss’s motion to intervene and ultimately
refused to grant the injunction.243 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.”244
While AT&T and Ashland Oil represent affirmative authorizations for intervention by a house of
Congress, In Re Beef Industry Antitrust Litigation,245 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 Representatives246 sought to intervene
in a pending antitrust dispute for the purpose of obtaining access to documents subpoenaed by
subcommittees from a party to the litigation. The subpoenaed documents had been obtained
through litigation discovery and were thus subject to a standing court protective order. The
district court refused to modify its protective order allowing the party to comply with the
subpoena.247 The subcommittee chairmen appealed to the United States Court of Appeals for the
Fifth Circuit.

239 Id.
240 See 122 CONG. REC. 27,865-866 (August 26, 1976).
241 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.”).
242 See generally, Ashland Oil, Inc. v. FTC, 548 F.2d 977 (D.C. Cir. 1976); see also H.Res. 899, 94th Cong., 1st Sess.
(1975); 121 CONG. REC. 41,707 (1976).
243 Ashland Oil, Inc. v. FTC, 409 F.Supp. 297, 301 (D.D.C. 1976).
244 Ashland Oil, 548 F.2d at 979.
245 589 F.2d 786 (5th Cir. 1979).
246 The Subcommittee on Oversight and Investigations of the Committee on Interstate and Foreign Commerce, and the
Subcommittee on SBA and SBIC Authority and General Small Business Problems of the Committee on Small
Business. See id. at 788.
247 See In re Beef Industry Antitrust Litigation, 457 F.Supp. 210, 212 (C.D. Tex. 1978) (stating that “the persons whom
(continued...)
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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.”248 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.249 Therefore, according
to the chairmen, they did not require authorization from the full House of Representatives to
appear in court.250
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.”251 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. 252 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.253
Enforcement of a Criminal or Inherent Contempt
Resolution Against an Executive Branch Official

Although the DOJ appears to have acknowledged that properly authorized procedures for seeking
civil enforcement provide the preferred method of enforcing a subpoena directed against an
executive branch official,254 the executive branch has consistently taken the position that

(...continued)
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.”).
248 In Re Beef, 589 F.2d at 789.
249 Id.
250 Id.
251 Id. at 790-91.
252 Id. at 790.
253 Id. at 791.
254 See, Prosecution for the Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of
Executive Privilege
, 8 Op. Off. Legal Counsel 101 (1984) [hereinafter Olson Memo] (“Congress could obtain a judicial
resolution of the underlying privilege claim and vindicate its asserted right to obtain any documents by a civil action for
enforcement of a congressional subpoena.”); see also Response to Congressional Requests for Information Regarding
Decisions Made Under the Independent Counsel Act
, 10 Op. Off. Legal Counsel 68 (1986) [hereinafter Cooper Memo]
(“although the civil enforcement route has not been tried by the House, it would appear to be viable option.”);
Committee on the Judiciary v. Miers, 558 F. Supp.2d 53, 76 (D.D.C. July 31, 2008)(“OLC rather emphatically
concluded that a civil action would be the least controversial way for Congress to vindicate its investigative
authority.”). The DOJ may, however, continue to argue that the federal courts lack jurisdiction to hear a civil
enforcement case when the suit is authorized solely by a House resolution.
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Congress cannot, as a matter of statutory or constitutional law, invoke either its inherent contempt
authority or the criminal contempt of Congress procedures255 against an executive branch official
acting on instructions by the President to assert executive privilege in response to a congressional
subpoena. Under such circumstances, the Attorney General has previously directed the U.S.
Attorney to refrain from pursuing a criminal contempt prosecution under 2 U.S.C. §§192, 194.256
This view is most fully articulated in two opinions by the DOJ’s Office of Legal Counsel (OLC)
from the mid-1980s,257 and further evidenced by actions taken by the DOJ in the Burford, Miers,
and Holder disputes, discussed below. 258 As a result, when an executive branch official is
invoking executive privilege at the behest of the President, the criminal contempt provision may
prove ineffective, forcing Congress to rely on other avenues to enforce subpoenas, including civil
enforcement through the federal courts.
The Burford Contempt
The DOJ’s early legal analyses were prompted by the outcome of an investigation by two House
committees into the Environmental Protection Agency’s (EPA) implementation of provisions of
the Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(Superfund). Subpoenas were issued by both committees seeking documents contained in the
EPA’s litigation files.259 At the direction of President Reagan, EPA Administrator Burford claimed
executive privilege over the documents and refused to disclose them to the committees on the
grounds that they were “enforcement sensitive.”260 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.261 On December 16, 1982, the full
House of Representatives voted, 259-105, to adopt the contempt citation.262 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.”263

255 2 U.S.C. §§192, 194.
256 Miers, 558 F. Supp. 2d at 64 (“The Attorney General then directed the U.S. Attorney not to proceed against Ms.
Miers and Mr. Bolten.”).
257 See Olson Memo, supra note 254; Cooper Memo, supra note 254.
258 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);
Letter from James M. Cole, Deputy Attorney General, to John Boehner, Speaker of the House, June 28, 2012.
259 See generally, Congressional Proceedings Against Anne M. Gorsuch, Administrator, U.S. Environmental Protection
Agency, for Withholding Subpoenaed Documents Relating to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, H.Rept. 97-968, 97th Cong. (1982) [hereinafter Gorsuch Contempt Report].
260 Id. at 42-43.
261 Id. at 57, 70.
262 128 CONG. REC. 31,776 (1982).
263 See generally, United States v. United States House of Representatives, 556 F. Supp. 150 (D.D.C. 1983).
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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.”264 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.265 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.266 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,267 he
had discretion with respect to whether to make the presentation. The issue was never resolved
because the ultimate settlement agreement included a withdrawal of the House’s contempt
citation.
In its initial 1984 opinion, OLC revisited the statutory, legal, and constitutional issues that were
not judicially resolved by the Superfund dispute. The opinion concluded that, as a function of
prosecutorial discretion, a U.S. Attorney is not required to refer a contempt citation to a grand
jury or otherwise to prosecute an executive branch official who is carrying out the President’s
direction to assert executive privilege.268 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.269 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.270 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

264 Id. at 152.
265 Id. (stating that “[c]onstitutional claims and other objections to congressional investigations may be raised as
defenses in a criminal prosecution”).
266 See LOUIS FISHER, THE POLITICS OF EXECUTIVE PRIVILEGE, 126-130 (Carolina Academic Press., 2004) [hereinafter
Fisher].
267 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).
268 See Olson Memo, supra note 254 at 102, 114-15, & 118-28.
269 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.”).
270 See id. at 102, 135-142.
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is an unreasonable, unwarranted, and therefore intolerable burden on the exercise by the
President of his functions under the Constitution.271
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 against a Presidential assertion of privilege applies to Congress’
inherent contempt powers as well.272
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.”273 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.274
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.275 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.276 Moreover, principles of due process require that the government adhere
to the terms of any immunity agreement it makes.277 It appears that a President has implicitly

271 Id. at 102.
272 Id. at 140, n. 42 (internal citation omitted).
273 Cooper Memo, supra note 254 at 86.
274 Id. (citing INS v. Chadha, 462 U.S. 919, 962-66 (1983); Buckley v. Valeo, 424 U.S. 1 (1976); United States v.
Brown
, 381 U.S. 437 (1965); United States v. Levett, 328 U.S. 303, 317 (1940)). It is important to note that the 1984
OLC opinion pre-dates the Supreme Court’s decisions in Morrison v. Olson, 487 U.S. 654 (1988) and Mistretta v.
United States
, 488 U.S. 361 (1989), both of which appear to undercut portions of the OLC’s reasoning.
275 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).
276 Id.
277 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,
(continued...)
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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.278 At the time, the DOJ, in an
opinion from OLC, argued that the requirement was unconstitutional on its face, directed the
executive branch departments not to comply with the statute as passed by Congress, and noted
that executive branch officials who are involved in making decisions that violate the statute face
little to no litigation risk, including, it appears, no risk of prosecution under the Anti-Deficiency
Act,279 for which the DOJ is solely responsible.280 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.281 Thus, a finding of inherent contempt against an
executive branch official does not appear to be subject to the President’s Pardon power282—as an
inherent contempt arguably is not an “offense against the United States,” but rather is an offense
against a house of Congress. Likewise, it appears that the same arguments would be applicable to
a potential civil enforcement by Congress.
The assertion that the legislative history of the 1857 statute establishing the criminal contempt
process demonstrates that it was not intended to be used against executive branch official is not
supported by the historical record. The floor debates leading to the enactment of the statute make
it clear that the legislation was intended as an alternative to, not a substitute for, the inherent
contempt authority. This understanding has been reflected in numerous Supreme Court opinions
upholding the use of the criminal contempt statute.283 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.”284
Moreover, language from the floor debate indicates that Congress was aware of the effect that this
language would have on the ability of persons to claim privileges before Congress. Specifically,
the sponsor of the bill, Representative Orr, was asked about the potential instances in which the

(...continued)
804 F.2d 1200, 1202-03 (11th Cir.1986).
278 See Legislative Branch Appropriations Act of 1993, P.L. 102-392 §207(a), 106 Stat. 1703, 1719 (1992) (codified at
44 U.S.C. §501 note); see also Legislative Branch Appropriations Act of 1995, P.L. 103-283 §207(2), 108 Stat. 1423,
1440 (1994) (amending Section 207(a) of the 1993 Act).
279 See 31 U.S.C. §1341 (2000).
280 See Memorandum for Emily C. Hewitt, General Counsel, GSA, Involvement of the Government Printing Office in
Executive Branch Printing and Duplicating
, May 31, 1996.
281 See supra pages 12-14.
282 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.”).
283 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).
284 42 CONG. GLOBE 429 (1857).
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proposed legislation might interfere with recognized common law and other governmental
privileges, such as the attorney-client privilege,285 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,”286 or to support inquires about “diplomatic matters.”287 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.”288 Later in the same debate, a proposed
amendment to expressly recognize the attorney-client privilege in the statute was overwhelmingly
defeated.289
With respect to the secret service fund, Representative Orr explained:
this House has already exercised the power and authority of forcing a disclosure as to what
disposition had been made for the secret-service fund. And it is right and proper that is
should be so. Under our Government—under our system of laws—under our Constitution—I
should protest against the use of any money by an executive authority, where the House had
not the right to know how every dollar had been expended, and for what purpose.290
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.291 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
testified292 and former President Adams filed a deposition293 detailing the uses of the fund during
their Administrations. In addition, President Polk’s Secretary of State, James Buchanan, was
subpoenaed and testified.294 Ultimately, Mr. Webster was found innocent of any wrongdoing.
From these references, it appears that the House was, in 1857, sensitive to and cognizant of its
oversight and investigative prerogatives vis-à-vis the executive branch. It therefore appears
arguable that in the context of the debate, the contempt statute was not intended to preclude the
House’s ability to engage in oversight of the executive branch.

285 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?”).
286 Id.
287 Id.
288 Id. (statement of Rep. Orr).
289 Id. at 441-43.
290 Id. at 431.
291 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)).
292 Id. (citing H.Rept. 684, 29th Cong., 1st Sess., 8-11 (1846)).
293 Id. (citing H.Rept. 686, 29th Cong., 1st Sess., 22-25 (1846)).
294 Id. (citing H.Rept. 686, 29th Cong., 1st Sess., 4-7 (1846)).
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Finally, it should be noted that past practice suggests that Congress clearly claims the authority to
utilize the criminal contempt statute to cite executive branch officials for contempt. Since 1980,
Congress has cited a number of executive branch officials or former executive branch officials for
contempt of Congress. The House of Representatives has approved contempt citations for two
former officials (former EPA Assistant Administrator Rita M. Lavelle and former White House
Counsel Harriet Miers), and three sitting295 officials (EPA Administrator Anne Gorsuch Burford,
White House Chief of Staff Joshua Bolten, and Attorney General Eric Holder). Additionally,
committees and subcommittees of the House of Representatives have also voted contempt
citations against Secretary of Energy Charles Duncan (1980); Secretary of Energy James B.
Edwards (1981); Secretary of the Interior James Watt (1982); Attorney General William French
Smith (1983); White House Counsel John M. Quinn (1996); Attorney General Janet Reno (1998);
and former White House Advisor Karl Rove (2008).296 Senate committees and subcommittees
have voted contempt citations against William French Smith (1984); Joshua Bolten (2007); and
White House Advisor Karl Rove (2007). (For a summary of House and Senate action on contempt
resolutions see Appendix.)
The Bolten and Miers Contempt: Committee on the Judiciary v.
Miers

The DOJ’s position on the use of criminal contempt against an executive branch official invoking
executive privilege was put into practical effect during a dispute over an investigation into the
resignations of nine United States Attorneys by the House Judiciary Committee and its
Subcommittee on Commercial and Administrative Law (“the Committee”).297 This investigation
resulted in the first legal confrontation over Congress’s contempt authority since the early 1980s
and the first civil lawsuit filed by a house of Congress in an attempt to affirm its information
gathering prerogatives. The actions and approach taken by both branches throughout the dispute;
the Attorney General’s unwillingness to prosecute a former presidential advisor for contempt of
Congress; and the resulting district court decision remain uniquely informative in delineating the
ability of Congress to issue and effectively enforce its own subpoenas against executive branch
officials.
After an extensive investigation into whether political motives and White House involvement had
prompted the requested resignations of the U.S. Attorneys—including numerous informal
communications and requests for information, witness interviews, and several congressional
hearings—the Committee ultimately sought information relating to the resignations directly from
a number of President Bush’s closest White House legal advisors.298 Following several months of
unfruitful negotiations and a number of attempts to obtain the information sought voluntarily,299

295 These officials held office at the time of the contempt citation.
296 Notably, House committees have also approved contempt citations against Secretary of State Henry Kissinger
(1975); Secretary of Commerce Rogers C. B. Morton (1975); and Secretary of Health, Education, and Welfare Joseph
A. Califano, Jr. (1978).
297 For additional information on the U.S. Attorneys dispute See H.Rept. 110-423, 110th Cong. (2007).
298 Id.; H. Jud. Comm. Mot. Summ. J. at 11 (copy on file with authors).
299 Following the initial request by the Committee for testimony and documents, Counsel to the President Fred Fielding
responded with an offer to make certain officials and documents available, but only with respect to external White
House communications, and only under the condition that any testimony be taken in private, “without the need for an
oath, transcript, subsequent testimony, or the subsequent issuance of subpoenas.” Letter from Fred Fielding, Counsel to
the President to John Conyers, Chairman, House Committee on the Judiciary, et. al. (March 20, 2007); Miers, 558 F.
(continued...)
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on March 21, 2007, the Committee authorized subpoenas for Ms. Harriet Miers, the former White
House Counsel and Mr. Joshua Bolten, the White House Chief of Staff and custodian of White
House records.300 The Miers subpoena was for both documents and testimony relating to her role,
if any, in the resignations, while the Bolten subpoena was only for White House records and
documents related to the resignations.301 In an effort to obtain a negotiated solution, Chairman
Conyers did not issue the authorized subpoenas until June 13, 2007.302
In response to the Committee’s action, the White House, via its Counsel Fred F. Fielding, notified
the Committee that it did not intend to comply with the Bolten subpoena on the grounds of
executive privilege. With respect to the subpoena directed to Ms. Miers, who had been living in
Texas since her resignation as White House Counsel in January 2007, Mr. Fielding first sent a
letter to Miers’s private attorney containing notice of the President’s assertion of executive
privilege over information related to the investigation, and suggested that Ms. Miers refrain from
producing any documents pursuant to her subpoena.303 Several days later, Mr. Fielding sent a
second letter to Miers’s attorney indicating that she was “not to provide ... testimony” pursuant to
the subpoena on the grounds that any such testimony would also be covered by the President’s
assertion of executive privilege.304 Subsequently, Miers’s attorney notified the Committee that, as
a result of the President’s claim of executive privilege, Ms. Miers would not appear at the
scheduled hearing.305
Although negotiations between the Committee and the White House continued in an attempt to
reach a compromise over the disclosure of documents and the requested testimony, by July 25,
2007, the sides had apparently reached an impasse, and the Committee voted to recommend that
Ms. Miers and Mr. Bolten be cited for contempt of Congress for failure to comply with the duly
issued subpoenas.306 The resolutions were forwarded to the House of Representatives, which
voted to cite Ms. Miers and Mr. Bolten for contempt of Congress on February 14, 2008.307 The
House approved Resolution 979, which directed the Speaker to forward the contempt citation to
the U.S. Attorney for the District of Columbia for action against Ms. Miers and Mr. Bolten; and
Resolution 980, which expressly authorized Chairman Conyers to initiate a civil lawsuit in federal
court to enforce the subpoenas in the event that the Department of Justice did not pursue the
criminal contempt actions.308
On February 28, 2008, pursuant to 2 U.S.C. §194, the Speaker of the House certified the report to
the U.S. Attorney for the District of Columbia for presentation to the grand jury.309 The next day,
however, the Attorney General sent a letter to the Speaker, stating that the Department of Justice

(...continued)
Supp.2d at 59-60.
300 Miers, 558 F. Supp. 2d. at 60.
301 Id.
302 Id. at 61.
303 See, H. Jud. Comm. Mot. Summ. J. at 12.
304 Id.
305 Id.
306 See H.Rept. 110-423, 60 (2007).
307 See H.Res. 979, H.Res. 980, H.Res. 982, 110th Cong. (2008).
308 The House actually passed H.Res. 982, which incorporated the terms of H.Res. 979 and H.Res. 980.
309 H. Jud. Comm. Mot. Summ. J. at 13.
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would “not bring the congressional contempt citations before a grand jury or take any other action
to prosecute Mr. Bolten or Ms. Miers.”310 Consistent with the positions asserted in the previously
discussed OLC opinions, it appeared that the DOJ would not proceed with the prosecution of a
White House official for criminal contempt of Congress where that official had invoked executive
privilege at the behest of the President. With any criminal contempt prosecution under 2 U.S.C.
§§192 and194 unavailable, on March 10, 2008, pursuant to the resolution adopted by the House
of Representatives, the Committee filed a civil suit in the U.S. District Court for the District of
Columbia “seek[ing] [a] declaratory judgment[]” and other “appropriate relief, including
injunctive relief” to enforce the Committee’s subpoenas.311 It is important to note that the case
filed by the Committee was limited only to whether Miers and Bolten could be forced to comply
with the issued subpoenas, not whether the House had the authority to hold either of the officials
in contempt of Congress.312
In Committee on the Judiciary v. Miers, the Bush Administration adopted the position that senior
presidential advisors, like Ms. Miers,313 were absolutely immune from compelled testimony
before Congress when asserting executive privilege at the direction of the President.314 As such,
Ms. Miers could not be required to present herself before the Committee.315 The Administration’s
absolute immunity argument rested primarily on the assertion that a senior presidential advisor, as
the President’s “alter ego,” should be accorded the same constitutional immunities enjoyed by the
President, just as congressional aides were accorded the same protections as Members of
Congress under the Speech or Debate Clause.316 Therefore, if the President were absolutely
immune from compelled testimony before Congress, which the Administration argued he surely
was, so to should that immunity extend to his closest presidential advisors, including his White
House Counsel.317
The opinion issued by the U.S. District Court for the District of Columbia on July 31, 2008,
rejected the Administration’s position, noting that “the asserted absolute immunity claim here is
entirely unsupported by existing case law.” 318 In addition, the court reaffirmed Congress’s

310 Id. at 13-14.
311 Id.
312 Miers, 558 F. Supp. 2d. at 55 (“The Committee … asks the Court to declare that … Miers must comply with a
subpoena and appear before the Committee to testify … and that current White House Chief of Staff Joshua Bolten
must produce a privilege log in response to a congressional subpoena.”).
313 The Administration did not claim that absolute immunity extended to a congressional subpoenas for documents, as
opposed to a subpoenas for testimony. However, the Administration did argue that the individual documents responsive
to Mr. Bolten’s subpoena were protected by executive privilege. Id. at 99.
314 Id. at 99-100.
315 Although the case dealt only with the enforceability of the Committee’s subpoenas, if the Committee did not have
the authority to compel Ms. Miers to appear, non-compliance with the Committee’s subpoena would not appear to have
been grounds for a contempt citation.
316 Miers, 558 F. Supp. 2d. at 100 (“Because senior White House advisers ‘have no operational authority over
government agencies … [t]heir sole function is to advise and assist the President in the exercise of his duties.’
Therefore, they must be regarded as the President’s ‘alter ego.’”) (citations omitted).
317 Id. (“Accordingly, forcing close presidential advisers to testify before Congress would be tantamount to compelling
the President himself to do so, a plainly untenable result in the Executive’s view.”).
318 Id. at 99 (“The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior
presidential advisors in this or any other context. That simple yet critical fact bears repeating: the asserted absolute
immunity claim here is entirely unsupported by existing case law. In fact, there is Supreme Court authority that is all
but conclusive on this question and that powerfully suggests that such advisors do not enjoy absolute immunity. The
Court therefore rejects the Executive’s claim of absolute immunity for senior presidential aides.”).
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“essential,” constitutionally based power to issue and enforce subpoenas.319 Although upholding
Congress’s “right” to information, and acknowledging that that right “derived from its Article I
legislative function, ” the district court made no explicit comment about Congress’s authority to
punish executive branch officials through contempt.320 Nor did the court reach the question of
whether the U.S. Attorney could decline to refer a duly certified criminal contempt citation to a
grand jury under 2 U.S.C. §194.
In dismissing the Administration’s absolute immunity argument, the district court held that past
precedent suggested that presidential advisors could not be regarded as the “alter ego” of the
President for immunity purposes. The Supreme Court had previously rejected the alter ego
analogy in the case of Harlow v. Fitzgerald.321 There, the Court held that executive officers were
not entitled to the same absolute immunity in a civil suit arising from official conduct as enjoyed
by legislators, judges, prosecutors, and the President. As opposed to the relationship between
congressional aides and Members of Congress,322 the President and his advisors were considered
“analytically distinct.”323 These advisors were, therefore, only entitled to qualified immunity in
the performance of their official duties. In light of the Supreme Court’s reasoning in Harlow that
presidential advisors were not entitled to alter ego status for immunity purposes, the Miers court
concluded that there was “nothing left to the Executive’s primary argument …”324
The district court continued, however, and noted that even if presidential advisors were entitled to
the same immunity as the President, it was not clear that the President himself would enjoy
absolutely immune from compelled congressional testimony.325 Although reaching no decision on
whether Congress could subpoena a sitting President for testimony, the court noted that the
Supreme Court’s opinions in U.S. v. Nixon and Clinton v. Jones could be interpreted as
recognizing that the President was not absolutely immune from compulsory process generally. In
the Nixon case, President Nixon was only entitled to a presumptive privilege over the White
House tapes in question—a privilege that could be overcome by a sufficient showing of need by
the grand jury.326 Additionally, in the Clinton case, the Supreme Court held that President Clinton
was not immune from a civil suit arising from unofficial conduct not occurring during his
Presidency, and, therefore, could be required to comply with compulsory process in the suit.327
Like the judiciary’s essential need for access to information in Nixon and Clinton, the district

319 Id. at 75 (citing McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
320 Id. at 84 (“In short, there can be no question that Congress has a right—derived from its Article I legislative
function—to issue and enforce subpoenas, and a corresponding right to the information that is the subject of such
subpoenas.”).
321 457 U.S. 800 (1982).
322 The Supreme Court has held that the liability protections of the Speech or Debate Clause extend beyond Members to
include their personal staff. Doe v. McMillan, 412 U.S. 306 (1973).
323 Miers, 558 F. Supp. 2d. at 106.
324 Id. at 101.
325 Id. at 102-03. (“Significantly, although the Supreme Court has established that the President is absolutely immune
from civil suits arising out of his official actions, even the President may not be absolutely immune from compulsory
process more generally … the President may only be entitled to a presumptive, rather than an absolute, privilege
here.”).
326 U.S. v. Nixon, 418 U.S. 683 (1974).
327 Clinton v. Jones, 520 U.S. 681 (1997).
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court reasoned that a congressional subpoena likewise involved “core functions of a co-equal
branch of the federal government.”328
Although the district court opinion in Miers may be characterized as a vindication of
congressional oversight prerogatives, or at least a limitation on the scope of executive privilege in
the face of a congressional investigation, the opinion also made clear that Congress’s authority to
compel testimony from executive branch officials was not unlimited. Indeed, the court noted two
important restrictions. First, the court specifically held that although not enjoying absolute
immunity from congressionally compelled testimony, Ms. Miers was still free to assert executive
privilege “in response to any specific questions posed by the Committee.”329 Thus, Ms. Miers
could still assert the protections of executive privilege during her testimony depending on the
substance of any individual question posed by a Member of the Committee. Second, the court
suggested that Congress may lack authority to compel testimony where such testimony related to
national security, foreign affairs, or another “particularly sensitive function” of the executive
branch.330 Without further explanation, the district court repeatedly noted that absolute immunity
may inhere to presidential advisors where “national security or foreign affairs form the basis for
the Executive’s assertion of privilege.”331
The Administration appealed the district court decision and asked the U.S. Court of Appeals for
the District of Columbia Circuit (D.C. Circuit) to stay the district court order pending an
expedited final decision by that court. On September 16, 2008 the D.C. Circuit granted the stay,
but denied the Administration’s request for an expedited schedule.332 The appeals court had
concluded that “even if expedited, this controversy will not be fully and finally resolved by the
Judicial Branch … before the 110th Congress ends on January 3, 2009. At that time, the 110th
House of Representatives will cease to exist as a legal entity, and the subpoenas it has issued will
expire.”333 As noted previously, the authority underlying a House subpoena or contempt citation
has traditionally been considered to expire at the termination of the Congress in which it was
authorized.334 Accordingly, because the Committee’s subpoenas were likely to expire before the
dispute could be resolved, the court saw no reason to expedite the case.335
On January 13, 2009—with the Miers case still on appeal before the D.C. Circuit, the 110th
Congress having reached its conclusion, and all presidential records set to transfer into the
custody of the Archivist of the United States336 at the end of President Bush’s second term on
January 20th—the district court issued a second order to preserve the availability of documents
covered by the Committee subpoenas.337 The order required the Administration to make copies of

328 Miers, 558 F. Supp. 2d. at 103. But see, Senate Select Committee v. Nixon, 498 F.2d 725 (D.C. Cir. 1974)
(describing a select committee’s need for the Nixon White house tapes as “merely cumulative.”).
329 Miers, 558 F. Supp. 2d. at 105.
330 Id. at 101, 106.
331 Id. at 106.
332 Committee on the Judiciary v. Miers, 542 F.3d 909 (D.C. Cir. 2008) [hereinafter Miers II].
333 Id. at 911.
334 See, supra note 60.
335 The concurring opinion appeared to disagree with the majority on this point, arguing that “the successor Congress
can assert the prior Committee’s investigatory interest …” Committee on the Judiciary v. Miers, 542 F.3d 909, 912
(D.C. Cir. 2008)(Tatel, Judge, concurring) (citing United States v. AT&T Co., 567 F.2d 121 (D.C. Cir. 1977)).
336 Presidential Records Act, 44 U.S.C. §§2201-2207.
337 Committee on the Judiciary v. Miers, 2009 U.S. Dist. LEXIS 2326 (D.D.C. 2009).
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all materials responsive to the subpoenas for storage at the White House until the conclusion of
the litigation.
In March of 2009, after the arrival of a newly elected Congress and presidential administration,
the parties reached a settlement in which some, but not all, of the requested documents would be
provided to the Committee. In addition, Ms. Miers would be permitted to testify, under oath, in a
closed, but transcribed hearing.338 Accordingly, the D.C. Circuit dismissed Miers on October 14,
2009, pursuant to a motion for voluntary dismissal.339 Thus the Miers litigation ended, more than
a year and a half after the Committee first filed its suit to enforce the subpoenas. Ultimately,
however, the Committee was able to gain access to much of the information it had been
seeking.340
The Holder Contempt
In the summer of 2012, the DOJ again refused to pursue a contempt prosecution against an
executive branch official when the President had invoked executive privilege as the basis for non-
compliance with a congressional subpoena. The dispute arose out of a subpoena issued by the
House Oversight and Government Reform Committee seeking disclosure of internal DOJ
documents detailing the department’s response to the Committee’s investigation into Operation
Fast and Furious.
In early 2011, the Committee on Oversight and Government Reform began investigating the
Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), a DOJ sub-agency, regarding
Operation Fast and Furious—an ATF operation based in the Phoenix, Arizona field office. 341 The
investigations were principally triggered by ATF whistleblowers who had alleged that suspected
straw purchasers were allowed to amass large quantities of firearms as part of long-term gun
trafficking investigations.342 As a consequence, some of these firearms were allegedly “walked,”
or trafficked to gunrunners and other criminals in Mexico.343 In December 2010, two of these
firearms were reportedly found at the scene of a shootout near the U.S.-Mexico border where
U.S. Border Patrol Agent Brian Terry had been killed.344 Following public reports of the operation
and Agent Terry’s death, Attorney General Eric Holder instructed the DOJ Office of the Inspector
General to review ATF’s gun trafficking investigations.345

338 David Johnston, Top Bush Aides to Testify in Attorneys’ Firings, N.Y. TIMES, March. 4, 2009. The settlement also
permitted Karl Rove to testify under the same conditions.
339 Committee on the Judiciary v. Miers, 2009 U.S. App. LEXIS 29374 (D.C. Cir. 2009).
340 The testimony and documents are available at http://judiciary.house.gov/issues/issues_WHInterviews.html.:
http://judiciary.house.gov/issues/issues_WHInterviews.html.
341 For a detailed discussion of Operation Fast and Furious, see CRS Report RL32842, Gun Control Legislation, by
William J. Krouse. The Senate and House Judiciary Committees also initiated contemporaneous investigations.
342 James V. Grimaldi and Sari Horwitz, ATF Probe Strategy is Questioned, WASH. POST, Feb. 2, 2011, at A4.
343 Id.
344 John Solomon, David Heath, and Gordon Witkin, “ATF Let Hundred of U.S. Weapons Fall into Hands of Suspected
Mexican Gun Runners: Whistleblower Says Agents Strongly Objected to Risky Strategy,” Center for Public Integrity,
available at http://www.iwatchnews.org/2011/03/03/2095/atf-let-hundreds-us-weapons-fall-hands-suspected-mexican-
gunrunners.
345 Pete Yost, Justice IG to Look into Anti-Gun Efforts on Border, ASSOCIATED PRESS ONLINE, March 4, 2011.
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On February 4, 2011, Assistant Attorney General for Legislative Affairs Ronald Weich sent a
letter to Congress denying that ATF had either sanctioned or knew of the sale of weapons to straw
purchasers who then transported the guns into Mexico.346 In March 2011, Representative Darrell
Issa, Chairman of the Oversight and Government Reform Committee, requested additional
documents and information about the operation from then-Acting ATF Director Kenneth E.
Melson. DOJ acknowledged the request but, according to the Committee, “did not provide any
documents or information to the Committee by the March 30, 2011 deadline.”347 The following
day, the Committee subpoenaed the documents from both DOJ and ATF.348 Over the next year, the
Committee held several hearings regarding Operation Fast and Furious and also heard direct
testimony from Attorney General Holder. 349 On October 12, 2011, after DOJ informed the
committee that it had produced all the documents it was willing to provide, the Committee issued
a second subpoena to the Attorney General requesting all departmental communications and
documents “referring or related to Operation Fast and Furious.”
Notably, at a November 8, 2011 Senate Judiciary Committee hearing, Attorney General Holder
conceded that the February 4, 2011 letter—disclaiming ATF knowledge of “gun walking”—
contained “inaccurate” information about the depth of knowledge DOJ officials had regarding
ATF’s “gun walking” methods.350 The next month, DOJ formally withdrew the February 4 letter
and acknowledged that Operation Fast and Furious was “fundamentally flawed.”351 The letter was
accompanied by nearly 1,400 pages of pre-February 4 documents and communications that
addressed how inaccurate information had been included in the February 4 letter.352
This disclosure deviated from DOJ’s general position that congressional requests “seeking
information about the Executive Branch’s deliberations ... implicate significant confidentiality
interests grounded in the separation of powers under the U.S. Constitution.”353 As such, DOJ
maintained that it made “extraordinary accommodations”354 in responding to requests about the
drafting of the February 4 letter. Furthermore, it stated:

346 Letter from Assistant Attorney General Ronald Weich to Ranking Member Charles Grassley, February 4, 2011,
available at http://oversight.house.gov/wp-content/uploads/2012/06/Feb-4-Dec-2-letters.pdf.
347 Report of the Committee on Oversight and Government Reform U.S. House of Representatives, “Report
Recommending that the House of Representatives Find Eric H. Holder, Jr., Attorney General, U.S. Department of
Justice in Contempt of Congress for Refusal to Comply With a Subpoena Duly Issued by the Committee on Oversight
and Government Reform, June 20, 2012, p. 4 [hereinafter Contempt Committee Report].
348 Press Release, “Chairman Issa Subpoenas ATF for ‘Project Gunrunner’ Documents,” April 1, 2011.
349 The Committee hearings included: June 13, 2011: “Obstruction of Justice: Does the Justice Department Have to
Respond to a Lawfully Issued and Valid Congressional Subpoena?”; June 15, 2011: “Operation Fast and Furious:
Reckless Decisions, Tragic Outcomes”; July 26, 2011: “Operation Fast and Furious: The Other Side of the Border”;
February 2, 2012: “Fast and Furious: Management Failures at the Department of Justice” (Attorney General Holder
testified); June 20, 2012: “Full Committee Business Meeting” (voting on citation to hold Attorney General Holder in
contempt).
350 Jerry Jarkon, Holder Amends Remarks on Gun Sting: Attorney General Heard of ‘Fast and Furious’ Earlier Than
He First Said
, WASH. POST, Nov. 9, 2011, at A2.
351 Letter from Deputy Attorney General James Cole to Chairman Darrell Issa and Ranking Member Charles Grassley,
December 2, 2011, available at http://oversight.house.gov/wp-content/uploads/2012/06/Feb-4-Dec-2-letters.pdf.
352 Id.
353 Id.
354 Letter from Deputy Attorney General James Cole to Chairman Darrell Issa, June 20, 2012, available at
http://i2.cdn.turner.com/cnn/2012/images/06/20/letter_to_issa.pdf]
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The Department has substantially complied with the outstanding subpoenas. The documents
responsive to the remaining subpoena items pertain to sensitive law enforcement activities,
including ongoing criminal investigations and prosecutions, or were generated by
Department officials in the course of responding to congressional investigations or media
inquiries about this matter that are generally not appropriate for disclosure.355
However, the Committee maintained that despite its flexibility and being “unfailingly patient,”356
DOJ had “refused to produce certain documents”357 and had “fought this committee’s
investigation every step of the way.”358 During a Committee hearing, Chairman Issa remarked
that the Attorney General had specifically “refused to cooperate, offering to provide subpoenaed
documents only if the committee agrees in advance to close the investigation. No investigator
would ever agree to that.”359 As a result, Chairman Issa publicly threatened a contempt vote if the
Attorney General’s refusal to comply with the subpoena continued. As negotiations between the
Attorney General and Chairman Issa continued, the Chairman reportedly narrowed the scope of
the documents that would need to be produced in order to avoid a contempt vote to only those
documents created after February 4, 2011—the date in which DOJ provided Congress with
admittedly inaccurate information about Operation Fast and Furious—and which related to the
Department’s response to various congressional inquiries.360 The Attorney General maintained
that he could not provide the Committee with the requested documents.
In light of the Committee’s continued dissatisfaction with DOJ’s refusal to comply fully with the
subpoenas, Chairman Issa scheduled a vote to hold Attorney General Holder in contempt of
Congress. Although the Attorney General and Chairman Issa met the night before the scheduled
vote, they were unable to reach an acceptable accommodation with regard to document
disclosure. On the morning of the vote, President Obama formally invoked executive privilege
“over the relevant post-February 4, 2011, documents.”361 In defending this assertion, DOJ noted
that:
the compelled production to Congress of these internal Executive Branch documents
generated in the course of the deliberative process concerning the Department’s response to
congressional oversight and related media inquiries would have significant, damaging
consequences ... it would inhibit the candor of such Executive Branch deliberations in the
future and significantly impair the Executive Branch’s ability to respond independently and
effectively to congressional oversight. Such compelled disclosure would be inconsistent with
the separation of powers established in the Constitution and would potentially create an
imbalance in the relationship between these co-equal branches of the Government.362
In its contempt citation, the Oversight and Government Reform Committee rejected the
President’s assertion of executive privilege, calling it “transparently invalid” due to the timing

355 Id.
356 Contempt Committee Report, p. 22.
357 Id. at 4.
358 Congressional Quarterly Hearing Transcript: “House Oversight and Government Reform Committee Holds Markup
on a Contempt of Congress Citation for U.S. Attorney General Holder,” available at http://www.cq.com/doc/
congressionaltranscripts-4110610 [hereinafter Hearing Transcript].
359 Id.
360 Contempt Committee Report, p. 38.
361 Letter from Deputy Attorney General James Cole to Chairman Darrell Issa, June 20, 2012.
362 Id.
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and blanket application of the privilege to all withheld documents.363 The Committee voted 23 to
17 to hold Attorney General Holder in contempt of Congress.364
The contempt citation was reported to the full House, and on June 28, 2012, two important
resolutions were passed. The first, H.Res. 711, constituted the formal criminal contempt citation
and was approved by a vote of 255-67.365 The resolution found the Attorney General in contempt
of Congress for his failure to comply with a congressional subpoena and directed the Speaker,
pursuant to 2 U.S.C. § 194, to certify the contempt citation to the U.S. Attorney for the District of
Columbia for prosecution. The second resolution, H.Res. 706, authorized Chairman Issa to
initiate a judicial proceeding on behalf of the Committee “to seek declaratory judgments
affirming the duty of Eric H. Holder Jr….to comply with any subpoena…issued to him by the
Committee as part of its investigation into [Operation Fast and Furious].”366 H.Res. 706 was
approved by a vote of 258-95.367 As in the Miers and Bolten contempt proceedings, the House
voted to hold an executive branch official in criminal contempt of Congress, while preserving the
option to seek enforcement of the Committee subpoenas through a civil action in federal court.
Consistent with DOJ’s legal position and the precedent set in the Burford, Miers, and Bolten
contempt actions, Deputy Attorney General James Cole informed Speaker Boehner on the same
day that the contempt was approved that “the [DOJ] has determined that the Attorney General’s
response to the subpoena issued by the Committee on Oversight and Government Reform does
not constitute a crime, and therefore the Department will not bring the congressional contempt
citation before a grand jury or take any other action to prosecute the Attorney General.”368
Although the criminal prosecution of the Attorney General for contempt of Congress appears to
be foreclosed, H.Res. 706 still permits the Committee to ask a federal district court to compel the
Attorney General to comply with the Committee subpoena. This civil case, although arising in
conjunction with a contempt action, will likely have a greater impact on the scope of executive
privilege than it will on the law surrounding contempt of Congress. The case will not resolve
whether DOJ has an obligation to prosecute contempt citations that have been approved by a
House of Congress and forwarded to the appropriate U.S. Attorney. Nor is it likely that the court
will opine on the scope of the contempt power and its proper application. Instead, if the court
proceeds to the merits of the claim, the case will likely focus only on the validity of the
Committee subpoenas. In evaluating whether the Attorney General is required to comply with the
subpoena, the court will likely consider whether the subject matter covered by the subpoena was
within the Committee’s jurisdiction and whether the Committee was pursuing a valid legislative
purpose.369 Perhaps more significantly, the court will also likely consider whether the documents

363 Contempt Committee Report, p. 42 (as stated in Representative Gowdy’s amendment, approved by a 23 to 17 vote).
364 Ed O’Keefe and Sari Horwitz, Fast and Furious: House Committee Votes 23-17 to Hold Attorney General Eric
Holder in Contempt of Congress
, WASH. POST, June 20, 2011, available at http://www.washingtonpost.com/blogs/
2chambers/post/live-fast-and-furious-hearing-to-discuss-contempt-of-congress-charge-against-eric-holder/2012/06/20/
gJQAzQKHqV_blog.html.
365 See H.Res. 711 (roll call vote available at http://cq.com/doc/floorvote-236138000).
366 H.Res. 706, 112th Cong. (2012).
367 Id. (roll call vote available at http://cq.com/doc/floorvote-236141000).
368 Letter from James M. Cole, Deputy Attorney General, to John Boehner, Speaker of the House, June 28, 2012.
369 Federal courts have generally adopted a deferential view of whether a congressional committee was pursuing a valid
legislative purpose. See, “Legislative Purpose” infra.
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in question were properly protected by executive privilege, and if so, whether the Committee’s
need for those documents supersedes that privilege.370
As previously noted, the civil enforcement action was filed on August 13, 2012 and is currently
pending before the U.S. District Court for the District of Columbia.371

Practical Limitations of Congressional Reliance on
Criminal Contempt or the Civil Enforcement of Subpoenas

The lessons to be gleaned from information access disputes between congressional committees
and the executive branch, including the interbranch quarrels over documents and testimony
relating to Operation Fast and Furious, the U.S. Attorney resignations, and the Superfund
litigation, appear to be twofold. First, Congress faces a number of obstacles in any attempt to
enforce a subpoena issued against an executive branch official through the criminal contempt
statute. Although the courts have reaffirmed Congress’s constitutional authority to issue and
enforce subpoenas,372 efforts to punish an executive branch official for non-compliance with a
subpoena through criminal contempt will likely prove unavailing in many, if not most
circumstances. Where the President directs or endorses the non-compliance of the official, such as
where the official refuses to disclose information pursuant to the President’s decision that such
information is protected under executive privilege, past practice suggests that the DOJ will not
pursue a prosecution for criminal contempt.373 The U.S. Attorney would likely rely on
prosecutorial discretion as grounds for not forwarding the contempt citation to the grand jury
pursuant to 2 U.S.C. §194.374 In other scenarios, however, where the conduct of the executive
branch official giving rise to the contempt citation was not endorsed by the President, for example
where an official disregards a congressional subpoena to protect personal rather than institutional
interests, the criminal contempt provision may remain an effective avenue for punishing
executive officials. Even in these situations, however, the executive branch may choose not to
prosecute the official so as to avoid establishing a precedent for Congress’s authority to use the
criminal contempt statute to punish an executive branch officer.375
Second, although it appears that Congress may be able to enforce its own subpoenas through a
declaratory civil action, relying on this mechanism to enforce a subpoena directed at an executive
official may prove an inadequate means of protecting congressional prerogatives due to the time
required to achieve a final, enforceable ruling in the case.376 This shortcoming was apparent in the

370 For a detailed discussion of executive privilege see, CRS Report RL30319, Presidential Claims of Executive
Privilege: History, Law, Practice, and Recent Developments
, by Todd Garvey and Alissa M. Dolan.
371 Complaint, Committee on Oversight and Government Reform v. Holder, No. 1:12-cv-1332 (D.D.C. Aug. 13, 2012).
Available at http://images.politico.com/global/2012/08/housevholdercomp.pdf.
372 Such subpoenas are still subject to valid claims of executive privilege and other constitutional imitations. See,
“Constitutional Limitations” infra.
373 Although criminal contempt citations were forwarded to the U.S. Attorney for the District of Columbia in the
Burford, Miers, and Holder disputes, no prosecutions were ever brought.
374 See supra pages 21-23.
375 The OLC opinions previously discussed only challenged the application of the criminal contempt statute in cases in
which the executive branch official in question has asserted a claim of executive privilege. See, Olson Memo, supra
note 254.
376 It should also be repeated that the Senate civil enforcement statute, by its own terms, is inapplicable in the case of a
(continued...)
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Miers case, where the Committee received a favorable decision from the district court, but was
unable to enforce that decision prior to the expiration of the 110th Congress and the conclusion of
the Bush Administration.377 Given the precedential importance of any civil action to enforce a
congressional subpoena, the resulting litigation would likely include a protracted appeals process.
The Miers litigation, which never reached a decision on the merits by the D.C. Circuit, was
dismissed at the request of the parties after approximately 19 months.378 Although the Committee
gained access to much of the information the Bush Administration had refused to disclose, the
change in administrations and the passage of time could be said to have diminished the
Committee’s ability to utilize the provided information to engage in effective oversight. Whereas
it may be possible for a federal district court to reach a decision on the Holder subpoena prior to
the expiration of the 112th Congress, it is highly unlikely that the expected appeals process will be
completed by that point. Thus, a new authorization will likely be required for the Committee to
continue the litigation into the 113th Congress.379
In light of these practical realties, in many situations Congress likely will not be able to rely on
the executive branch to effectively enforce subpoenas directed at executive branch officials, nor
will reliance on the civil enforcement of subpoenas through the judicial branch always result in a
prompt resolution of the dispute. Although subject to practical limitations, Congress retains the
ability to exercise its own constitutionally based authorities to enforce a subpoena through
inherent contempt.380

(...continued)
subpoena issued to an officer or employee of the federal government acting in their official capacity. 28 U.S.C.
§1364(a).
377 At least one commentator has suggested that reliance on the courts to enforce congressional subpoenas has
diminished Congress’s constitutional standing. See, Josh Chafetz, Congress’s Constitution, 160 U. PA. L. REV. 715, 741
(2012) (“It seems literally unimaginable to the [Miers] court that the executive branch might resist a court order as
readily as it would resist an order from the House. And the House, in choosing to invoke the court’s authority rather
than its own, played right into this perception. It reinforced the idea that that the judiciary is the domain of reasoned,
principled judgments that must be respected, while congressional action in defense of its powers is ‘unseemly.’”).
378 However, if a lawsuit were brought early in a Congress, a reviewing court was willing to expedite the case, and
discretionary appeals were denied, civil enforcement of a subpoena could be achieved promptly.
379 See, Anderson v. Dunn, 19 U.S. (6 Wheat.) at 231 (“Since 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.”); Committee on the Judiciary v. Miers, 542 F.3d 909, 911 (D.C. Cir. 2008) (“Even if expedited, this
controversy will not be fully and finally resolved by the Judicial Branch … before the 110th Congress ends on January
3, 2009. At that time, the 110th House of Representatives will cease to exist as a legal entity, and the subpoenas it has
issued will expire.”
380 The district court in Miers highlighted the risks of inherent contempt. 558 F. Supp. 2d. at 78 (“Exercise of
Congress’s inherent contempt power through arrest and confinement of a senior executive official would provoke an
unseemly constitutional confrontation that should be avoided.”). In addition, even where either contempt or civil
enforcement proceedings prove unavailing, Congress may utilize other powers, including, for example, the imposition
of funding restrictions, to coerce compliance by executive branch officials.
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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.381
The criminal contempt statute is applicable to contempts committed by a person “summoned as a
witness by the authority of either House of Congress ... .”382 The statute applies regardless of
whether a subpoena has been issued by a committee or by the full House or Senate.383 Although
the statute specifically makes the contempt sanction applicable to a witness who has been
“summoned,” the law applies whether the individual is subpoenaed or appears voluntarily and
then refuses to testify.384
A contempt conviction will not be upheld if the committee’s investigation has not been clearly
authorized by the full House or Senate.385 The investigation, and the questions posed, must be
within the scope of the committee’s jurisdiction.386 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,387 a resolution,388 or a standing rule of the House or Senate.389 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.390 Investigations may be conducted, and subpoenas
issued, pursuant to a committee’s legislative or oversight jurisdiction.391

381 Russell v. United States, 369 U.S. 749 (1962); see also Sinclair v. United States, 279 U.S. 263 (1929). While most of
the case law in this section of the report involves decisions under the statutory criminal contempt procedure, many of
the holdings would be applicable to exercises of the civil enforcement statute and the inherent contempt power. See
S.Rept. No. 95-170, 95th Cong., 1st Sess., 41, 94.
382 2 U.S.C. §192 (2000) (emphasis added).
383 McGrain v. Daugherty, 2 73 U.S. 135 (1927); see also Sinclair v. United States, 279 U.S. 263, 296 (1929).
384 Sinclair, 279 U.S. at 296.
385 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).
386 See United States v. Rumely, 343 U.S. 41 (1953); see also United States v. Patterson, 206 F.2d 433 (D.C. Cir. 1953).
387 26 U.S.C. §8021, 8022 (2000) (Joint Committee on Taxation).
388 Resolutions are generally used to establish select or special committees and to delineate their authority. and
jurisdiction. See 4 Deschler’s Precedents, supra note 93, ch. 17, 56; see also e.g., S.Res. 23, 100th Cong. (Iran-Contra);
S.Res. 495, 96th Cong. (Billy Carter/Libya).
389 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).
390 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
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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,392 “[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.”393 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.394 Although the early case of Kilbourn v. Thompson395 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.396 In In re Chapman, 397 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

(...continued)
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 ).
391 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).
392 360 U.S. 109, 117 (1959).
393 See Watkins v. United States, 354 U.S. 178, 209-215 (1957).
394 See, e.g., McGrain v. Daugherty, 273 U.S. 135 (1927); see also In Re Chapman, 166 U.S. 661 (1897).
395 103 U.S. 168 (1881).
396 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 62, at 232.
397 166 U.S. 661, 669 (1897).
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of what the Senate regarded as offensive imputations, while affirmative answers might have
led to further action on the part of the Senate within its constitutional powers.
Nor will it do to hold that the Senate had no jurisdiction to pursue the particular inquiry
because the preamble and resolutions did not specify that the proceedings were taken for the
purpose of censure or expulsion, if certain facts were disclosed by the investigation. The
matter was within the range of the constitutional powers of the Senate. The resolutions
adequately indicated that the transactions referred to were deemed by the Senate
reprehensible and deserving of condemnation and punishment. The right to expel extends to
all cases where the offense is such as in the judgment of the Senate is inconsistent with the
trust and duty of a member.
We cannot assume on this record that the action of the Senate was without a legitimate
object, and so encroach upon the province of that body. Indeed, we think it affirmatively
appears that the Senate was acting within its right, and it was certainly not necessary that the
resolutions should declare in advance what the Senate meditated doing when the
investigation was concluded.398
In McGrain v. Daugherty,399 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.400
Moreover, when the purpose asserted is supported by reference to specific problems which in the
past have been, or in the future may be, the subject of appropriate legislation, it has been held that
a court cannot say that a committee of the Congress exceeds its power when it seeks information
in such areas.401 In the past, the types of legislative activity which have justified the exercise of

398 In re Chapman, 166 U.S. at 699.
399 273 U.S. 135 (1927).
400 Id. at 179-180.
401 Shelton v. United States, 404 F.2d 1292, 1297 (D.C. Cir. 1968), cert denied, 393 U.S. 1024 (1969).
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the power to investigate have included the primary functions of legislating and appropriating;402
the function of deciding whether or not legislation is appropriate;403 oversight of the
administration of the laws by the executive branch;404 and the essential congressional function of
informing itself in matters of national concern.405 In addition, Congress’s power to investigate
such diverse matters as foreign and domestic subversive activities,406 labor union corruption,407
and organizations that violate the civil rights of others408—have all been upheld by the Supreme
Court.409
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.410 Furthermore, although “there is no congressional power to expose for the sake of
exposure,”411 “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.”412
Pertinency
Two different issues of pertinency arise in regard to a contempt prosecution.413 First, a witness’s
refusal to answer questions or provide subpoenaed documents will be punished as a contempt
only if the questions posed (or documents requested) by the committee are, in the language of the
statute, “pertinent to the question under inquiry.”414 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.415 Given the breadth of congressional
investigations, the courts have long recognized that pertinency in the legislative context is broader
than in the judicial context, which relies primarily on the law of evidence’s standard of relevance.
For example, the D.C. Circuit has stated that

402 Barenblatt v. United States, 360 U.S. 109 (1959).
403 Quinn v. United States, 349 U.S. 155, 161 (1955).
404 McGrain, 273 U.S. at 295.
405 United States v. Rumely, 345 U.S. 4, 43-45 (1953); see also Watkins, 354 U.S. at 200 n. 3.
406 See, e.g., Barenblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States, 354 U.S. 178 (1957); McPhaul
v. United States
, 364 U.S. 372 (1960).
407 Hutcheson v. United States, 369 U.S. 599 (1962).
408 Shelton v. United States, 404 F.2d 1292 (D.C. Cir. 1968), cert. denied, 393 U.S. 1024 (1969).
409 For an indication of the likely breadth of Congress’s power to investigate, see supra note 10-24 and accompanying
text.
410 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).
411 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.
412 Barenblatt, 360 U.S. at 132.
413 Deutch v. United States, 367 U.S. 456, 467-68 (1961).
414 2 U.S.C. §192 (2000); see also Barenblatt, 360 U.S. at 123; Watkins, 354 U.S. at 208
415 Sinclair v. United States, 279 U.S. 263, 279 (1929); Ashland Oil, Inc. v. FTC, 409 F. Supp. 287, 305 (D.D.C. 1976).
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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.416
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.”417 The Court in Watkins
stated that
[u]nless the subject matter has been made to appear with undisputable clarity, it is the duty of
the investigative body, upon objection of the witness on grounds of pertinency, to state for
the record the subject under inquiry at that time and the manner in which the propounded
questions are pertinent thereto. To be meaningful, the explanation must describe what the
topic under inquiry is and the connective reasoning whereby the precise questions asked
relate to it.418
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.”419 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 of the proceedings; and (e) the chairman’s response to a witness’s
objections on the grounds of lack of pertinency.420
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.421 However, an evil motive does not have to be established.422 Because of the willfulness
requirement, and to satisfy constitutional due process standards, when a witness objects to a

416 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).
417 Deutch, 367 U.S. at 467-68.
418 Watkins, 354 U.S. at 214-15.
419 See James Hamilton, THE POWER TO PROBE: A STUDY OF CONGRESSIONAL INVESTIGATIONS, 241 (1977) [hereinafter
Hamilton].
420 Watkins, 354 U.S. at 209-14.
421 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).
422 See generally, Allen B. Moreland, Congressional Investigations and Private Persons, 40 SO. CAL. L. REV. 189, 239-
42 (1967).
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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.423 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.”424 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.425
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 subpoenas426 and conducting investigations and hearings.427 It appears that a witness
can be convicted of criminal contempt,428 but not of perjury, where a quorum of the committee
was not present.429
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.”430 More particularly, the process of committee resolution of claims of attorney-

423 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).
424 Quinn v. United States, 203 F.2d 30, 33 (D.C. Cir. 1952), aff’d, 349 U.S. 155 (1955).
425 See Leading Cases, supra note 394 at 69.
426 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).
427 Yellin v. United States, 374 U.S. 109 (1963); Gojack v. United States, 384 U.S. 702 (1966).
428 United States v. Bryan, 339 U.S. 323 (1950).
429 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).
430 Hearings, “International Uranium Cartel”, Subcomm. on Oversight and Investigations, House Comm. on Interstate
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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,431 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.432 Moreover, the
conclusion that recognition of non-constitutionally based privileges, such as attorney-client
privilege, is a matter of congressional discretion is consistent with both traditional British
parliamentary and the Congress’s historical practice.433
Although there is limited case law with respect to attorney-client privilege claims before
congressional committees,434 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.435 These rulings may lead to additional arguments in support of the long-
standing congressional practice.

(...continued)
and Foreign Commerce, 95th Cong., 1st Sess., Vol. 1, 123 (1977).
431 See 2 U.S.C. 190d (1994).
432 See, e.g., Contempt of Congress Against Franklin L. Haney, H.Rept. 105-792, 105th Cong., 2d Sess., 11-15 (1998);
Proceedings Against John M. Quinn, David Watkins, and Matthew Moore (Pursuant to Title 2, United States Code,
Sections 192 and 194)
, H.Rept. 104-598, 104th Cong., 2d Sess., 40-54 (1996); Refusal of William H. Kennedy, III, To
Produce Notes Subpoenaed by the Special Committee to Investigate Whitewater Development Corporation and Related
Matters
, S.Rept. 104-191, 104th Cong. 1st Sess., 9-19 (1995); Proceedings Against Ralph Bernstein and Joseph
Bernstein
, H.Rept. 99-462, 99th Cong. 2d Sess., 13, 14 (1986); Hearings, International Uranium Control, before the
Subcommittee on Oversight and Investigations, House Committee on Interstate and Foreign Commerce
, 95th Cong., 1st
Sess., 60, 123 (1977).
433 See, CRS Report 95-464, Investigative Oversight: An Introduction to the Law, Practice and Procedure of
Congressional Inquiry
, pp. 43-55 (April 7, 1995; available upon request); see also, Glenn A. Beard, Congress v. the
Attorney-Client Privilege: A “Full and Frank Discussion,”
35 Amer. CRIM. L. REV. 119 122-127 (1997)
(“[C]ongressional witnesses are not legally entitled to the protection of the attorney-client privilege, and investigating
committees therefore have discretionary authority to respect or overrule such claims as they see fit.”); Thomas Millett,
The Applicability of Evidentiary Privileges for Confidential Communications Before Congress, 21 JOHN MARSHALL L.
REV. 309 (1988).
434 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.”).
435 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
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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.436 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.437
While no court has recognized the inapplicability of the attorney-client privilege in congressional
proceedings in a decision directly addressing the issue,438 an opinion issued by the Legal Ethics
Committee of the District of Columbia Bar in February 1999, clearly acknowledges the
longstanding congressional practice.439 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.440 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.441 The firm continued its
refusal to comply until the Subcommittee cited it for contempt, at which time the firm proposed
to turn over the documents if the contempt citation was withdrawn. The Subcommittee agreed to
the proposal.442

(...continued)
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)).
436 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).
437 Westinghouse Electric Corporation v. Republic of the Philippines, 951 F.2d 1414, 1423 (3d Cir. 1991).
438 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.”).
439 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).
440 See H.Rept. 105-792, 105th Cong., 1st Sess., 1-6, 7-8, 15-16 (1997).
441 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).
442 Id. at 101-105.
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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),443 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,444 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.445 Although there is
no court case directly on point, it appears that, like the privilege between attorney and client,
congressional committees are not legally required to allow a witness to decline to testify on the
basis of other similar testimonial privileges.446 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

443 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.”
444 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).
445 See generally, 8 Wigmore, EVIDENCE §2285 (McNaughton ed. 1961); see also FED. R. EVID. 501. For an analysis of
the attorney client privilege, See infra notes 331-344 and accompanying text.
446 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 10 at 265-67.
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of grand jury subpoenas that have been grounded on the assertion that the materials sought were
prepared in anticipation of possible congressional hearings.447 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.448 The basis for these determinations is rooted in Congress’s Article I Section 5
rulemaking powers,449 under which each House is the exclusive determiner of the rules of its own
proceedings. This rulemaking authority, as well as general separation of powers considerations,
suggests that Congress and its committees are not obliged to abide by rules established by the
courts to govern their own proceedings.450
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.451 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.”452
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.”453 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.454 In the leading case involving the application of

447 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).
448 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)).
449 U.S. CONST. Art. 1, §5, cl. 2
450 See generally, Telford Taylor, GRAND INQUEST: THE STORY OF CONGRESSIONAL INVESTIGATIONS 227-28 (1974).
451 See Hamilton, supra note 417, 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.
452 Attorney-Client Privilege Comm. Print, supra note 444, 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)).
453 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).
454 Watkins v. United States, 354 U.S. 178, 197 (1957).
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First Amendment rights in a congressional investigation, Barenblatt v. United States,455 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.456
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.” 457 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.458
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.459
However, the Court has narrowly construed the scope of a committee’s authority so as to avoid
reaching a First Amendment issue.460 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.461

455 360 U.S. 109, 126 (1959).
456 Id.
457 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).
458 See, e.g., Barenblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States, 354 U.S. 178 (1957); United
States v. Rumely
, 345 U.S. 41 (1953); see also 4 Deschler’s Precedents, supra note 93, ch. 15, §10, n. 15 and
accompanying text.
459 Leading Cases, supra note 394, at 42; Hamilton, supra note 417, at 234. Although it was not in the criminal
contempt context, one court of appeals has upheld a witness’s First Amendment claim. In Stamler v. Willis, the Seventh
Circuit Court of Appeals ordered to trial a witness’s suit for declaratory relief against the House Un-American
Activities Committee in which it was alleged that the committee’s authorizing resolution had a “chilling effect” on
plaintiff’s First Amendment rights. See 415 F.2d 1365 (7th Cir. 1969), cert. denied, 399 U.S. 929 (1970). In other cases
for declaratory and injunctive relief brought against committees on First Amendment grounds, relief has been denied
although the courts indicated that relief could be granted if the circumstances were more compelling. See, e.g., Sanders
v. McClellan
, 463 F.2d 894 (D.C. Cir. 1972); Davis v. Chord, 442 F. 2d 1207 (D.C. Cir. 1970); Ansara v. Eastland, 442
F.2d 751 (D.C. Cir. 1971). However, in Eastland v. United States Servicemen’s Fund, the Supreme Court held that the
Constitution’s Speech or Debate Clause (Art. I, Section 6, cl. 1) generally bars suits challenging the validity of
congressional subpoenas on First Amendment or other grounds. Thus, a witness generally cannot raise his
constitutional defenses until a subsequent criminal prosecution for contempt unless, in the case of a Senate committee,
the statutory civil enforcement procedure is employed. 421 U.S. 491 (1975); see also United States v. House of
Representatives
, 556 F. Supp. 150 (D.D.C. 1983).
460 United States v. Rumely, 345 U.S. 41 (1953).
461 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
(continued...)
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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.462 The Standards of Official Conduct
Committee concluded that Mr. Schorr had obtained a copy of the Select Committee’s report and
had made it available for publication. Although the ethics committee found that “Mr Schorr’s role
in publishing the report was a defiant act in disregard of the expressed will of the House of
Representatives to preclude publication of highly classified national security information,” it
declined to cite him for contempt for his refusal to disclose his source.463 The desire to avoid a
clash over First Amendment rights apparently was a major factor in the committee’s decision on
the contempt matter.464
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.465 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.466 After extensive debate, the House failed to adopt
the committee report, voting instead to recommit the matter to the committee.467 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. 468
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.469 It appears that there must be a legitimate
legislative or oversight-related basis for the issuance of a congressional subpoena.470 The Fourth

(...continued)
substantial relation [or nexus] between the information sought and a subject of overriding and compelling state interest.
Id. a t 546.
462 H.Rept. 94-1754, 94th Cong. 2d Sess., 6 (1976).
463 Id. at 42-43.
464 Id. at 47-48 (additional views of Representatives Spence, Teague, Hutchinson, and Flynt).
465 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.
466 H.Rept. 92-349, 92d Cong., 1st Sess. (1971). The legal argument of CBS was based in part on the claim that
Congress could not constitutionally legislate on the subject of editing techniques and, therefore, the subcommittee
lacked a valid legislative purpose for the investigation. Id. at 9.
467 See 117 CONG. REC. 23922-926, 24603-59, 24720-53 (1971).
468 Id. at 24731-732.
469 Watkins v. United States, 354 U.S. 178, 188 (1957); see also McPhaul v. United States, 364 U.S. 372 (1960).
470 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
(continued...)
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Amendment protects a congressional witness against a subpoena which is unreasonably broad or
burdensome.471 The Court has outlined the standard to be used in judging the reasonableness of a
congressional subpoena:
Petitioner contends that the subpoena was so broad as to constitute an unreasonable search
and seizure in violation of the Fourth Amendment .... ‘Adequacy or excess in the breath of
the subpoena are matters variable in relation to the nature, purposes, and scope of the
inquiry’ .... The subcommittee’ s inquiry here was a relative1y broad one ... and the
permissible scope of materials that could reasonably be sought was necessarily equally
broad. It was not reasonable to suppose that the subcommittee knew precisely what books
and records were kept by the Civil Rights Congress, and therefore the subpoena could only ‘
specify ... with reasonable particularity, the subjects to which the documents ... relate .... ‘The
call of the subpoena for ‘all records, correspondence and memoranda’ of the Civil Rights
Congress relating to the specified subject describes them ‘with all of the particularity the
nature of the inquiry and the [subcommittee’s] situation would permit .... ‘The description
contained in the subpoena was sufficient to enable [petitioner] to know what particular
documents were required and to select them adequately.472
If a witness has a legal objection to a subpoena duces tecum or is for some reason unable to
comply with a demand for documents, he must give the grounds for his non-compliance upon the
return of the subpoena. As the D.C. Circuit stated:
If [the witness] felt he could refuse compliance because he considered the subpoena so broad
as to constitute an unreasonable search and seizure within the prohibition of the fourth
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].473
Similarly, if a subpoenaed party is in doubt as to what records are required by a subpoena or
believes that it calls for documents not related to the investigation, he must inform the committee.
Where a witness is unable to produce documents he will not be held in contempt “unless he is
responsible for their unavailability ... or is impeding justice by not explaining what happened to
them.”474
The application of the exclusionary rule to congressional committee investigation is in some
doubt and appears to depend on the precise facts of the situation. It seems that documents which
were unlawfully seized at the direction of a congressional investigating committee may not be
admitted into evidence in a subsequent unrelated criminal prosecution because of the command of
the exclusionary rule.475 In the absence of a Supreme Court ruling, it remains unclear whether the

(...continued)
see Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 509 (1975), (recognizing that an investigation may
lead “up some ‘blind alleys’ and into nonproductive enterprises. To be a valid legislative inquiry there need be no
predictable end result.”).
471 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).
472 McPhaul, 364 U.S. at 832.
473 Shelton, 404 F.2d at 1299-1300; see also Leading Cases, supra note 394, at 49.
474 McPhaul, 364 U.S. at 382.
475 Nelson v. United States, 208 F.2d 505 (D.C. Cir.), cert. denied, 346 U.S. 827 (1953).
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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).476
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.477 The privilege is personal in nature,478
and may not be invoked on behalf of a corporation,479 small partnership,480 labor union,481 or other
“artificial” organizations.482 The privilege protects a witness against being compelled to testify
but generally not against a subpoena for existing documentary evidence.483 However, where
compliance with a subpoena duces tecum would constitute implicit testimonial authentication of
the documents produced, the privilege may apply.484

476 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).
477 Watkins v. United States, 354 U.S. 178 (1957); Quinn v. United States, 349 U.S. 155 (1955).
478 See McPhaul v. United States, 364 U.S. 372 (1960); see also McCormick, EVIDENCE §120 (Cleary ed. 1984)
[hereinafter McCormick].
479 Hale v . Henkel, 201 U.S. 43 (1906).
480 Bellis v. United States, 417 U.S. 85 (1974).
481 See United States v. White, 322 U.S. 694 (1944).
482 Bellis, 417 U.S. at 90; see also Rogers v. United States, 340 U.S. 367 (1951) (Communist Party).
483 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 476 at §§126, 127.
484 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 476 at §126.
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There is no required verbal formula for invoking the privilege; nor does there appear to be
necessary a warning by the committee.485 A committee should recognize any reasonable
indication, such as “the fifth amendment,” that the witness is asserting his privilege.486 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.487
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.488
The basis for asserting the privilege was elaborated upon in a lower court decision:
The privilege may only be asserted when there is reasonable apprehension on the part of the
witness that his answer would furnish some evidence upon which he could be convicted of a
criminal offense ... or which would reveal sources from which evidence could be obtained
that would lead to such conviction or to prosecution therefore ... .Once it has become
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.489
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.490
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.491 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

485 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).
486 Quinn v. United States, 349 U.S. 155 (1955).
487 Emspak v. United States, 349 U.S. 190 (1955); see also Leading Cases, supra note 394 at 63.
488 Hoffman v. United States, 341 U.S. 479, 486-87 (1951).
489 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).
490 Emspak v. United States, 349 U.S. 190 (1955); see also Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
491 18 U.S.C. §§6002, 6005 (2000).
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perjury or contempt relating to his testimony. However, he may be convicted of the crime (the
“transaction”) on the basis of other evidence.492
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.493 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.494 Although the order to testify may be issued before the
witness’s appearance,495 it does not become legally effective until the witness has been asked the
question, invoked his privilege, and been presented with the court order.496 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.497
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.”498 “Unless the subject matter has been made to appear with
undisputable clarity, it is the duty of the investigative body, upon objection of the witness on
grounds of pertinency, to state for the record the subject under inquiry at that time and the manner
in which the propounded questions are pertinent thereto.”499 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.500


492 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.
493 18 U.S.C. §6005(a) (2000).
494 However, the Justice Department may waive the notice requirement. Application of the Senate Permanent
Subcommittee on Investigations
, 655 F.2d 1232, 1236 (D.C. Cir. 1980), cert. denied, 454 U.S. 1084 (1981).
495 Application of the Senate Permanent Subcommittee on Investigations, 655 F.2d at 1257.
496 See In re McElreath, 248 F.2d 612 (D.C. Cir. 1957) (en banc).
497 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.
498 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.
499 Watkins v. United States, 354 U.S. 178, 214-15 (1957).
500 Deutch v. United States, 367 U.S. 456, 467-68 (1961).
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Appendix. Congressional Contempt Resolutions,
1980-Present

The tables below contain information on contempt resolutions in the House and Senate and civil
enforcement resolutions in the Senate since 1980. The tables include contextual information such
as the individuals or organizations charged, the recommending committee, resolution number, and
roll call votes related to various actions. Summarized descriptions of the allegations and
committee actions are derived from the identified House or Senate Report. CRS has attempted to
make the table as comprehensive as possible; however, some relevant citations may not have been
identified by CRS’s searches.
Table A-1. Floor Votes on Contempt Resolutions in the House of Representatives,
1980-Present
Name and
Resolution and
Title
Recommending Committee and Report Excerpt
Vote
O. Robert
Standards of Official Conduct, H.Rept. 96-1078 (1980)
H.Res. 743, 96th
Fordiani,
Cong. (1980)
District
On January 2, 1980, O. Robert Fordiani, having been summoned as a witness by
Representative the authority of the House Committee on Standards of Official Conduct
Agreed to by Voice
for
pursuant to a subpoena of the said Committee, failed to appear to give testimony Vote on July 21,
Congressman
before said Committee, meeting in executive session for the purpose of
1980. See 126 Cong.
Charles H.
receiving testimony, concerning possible violations of House Rule XLIII, of the
Rec. 18,830-32
Wilson
Code of Official Conduct, by Representative Charles H. Wilson of California,
(1980)
pursuant to the authority of House Rule X, clause 4(e)(1)(B).
Chairman Bennett found Fordiani’s failure to appear contemptuous, and,
thereafter, the Committee, a quorum being present, authorized its Chairman,
the Honorable Charles E. Bennett, ayes 7, nays 0, to file this report and to offer
a resolution directing the Speaker of the House to certify this report to the U.S.
Attorney for the District of Columbia to the end that Fordiani be prosecuted for
criminal contempt of Congress, pursuant to the provisions of title 2, United
States Code, Sections 192 and 194.
Anne M.
Public Works and Transportation, H.Rept. 97-968 (1982)
H.Res. 632, 97th
(Gorsuch)
Cong. (1982)
Burford,
Last month, during an ongoing investigation by the Subcommittee on
Administrator
Investigations and Oversight into the functioning of the Superfund law in the face
Agreed to in House
of the
of recurring problems of contamination of the Nation’s ground and surface
by Yea-Nay Vote:
Environmental
water resources by illegally spilled or disposed hazardous wastes, the
259 - 105 (Record
Protection
Subcommittee sought necessary information from the U.S. Environmental
Vote No: 472) on
Agency
Protection Agency. Anne M. Gorsuch, Administrator, had responsibility for the
December 16, 1982.
administration of that law and was the custodian of the relevant documents.
See 128 Cong. Rec.
31,746-76 (1982)
Administrator Gorsuch failed to cooperate, and the Subcommittee found it
necessary to subpoena her to appear with the documents. Upon refusal to
comply with the subpoena, the Subcommittee voted to hold the Administrator in
contempt and referred the matter to the Committee on Public Works and
Transportation.
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Congress’s Contempt Power and the Enforcement of Congressional Subpoenas

Name and
Resolution and
Title
Recommending Committee and Report Excerpt
Vote
Rita M.
Energy and Commerce, H.Rept. 98-190 (1983)
H.Res. 200, 98th
Lavelle,
Cong. (1983)
former
On April 26, 1983, the Committee unanimously adopted a resolution finding Ms.
Assistant
Lavelle in contempt of Congress for failing to appear and testify as called for by a
Resolution Agreed to
Administrator
subpoena authorized by the Subcommittee on Oversight and Investigations. As
in House by Yea-Nay
for the
the senior official who was, until recently, in charge of the EPA’s hazardous
Vote: 413 - 0
Environmental
waste programs, Ms. Lavelle stands in a unique position to respond to the
(Record Vote No:
Protection
serious concerns of the Subcommittee—and of the Congress and the American
127) on May 18,
Agency
people—about the agency’s discharge of its duty to protect the public from
1983. See 129 Cong.
hazardous wastes, to clean them up promptly, using the $1.6 billion Superfund,
Rec. 12,717-25

and to secure reimbursement from those responsible.
(1983)
Anne M.
Public Works and Transportation (by referral), H.Rept. 98-323 (1982)
H.Res. 180, 98th
(Gorsuch)
Cong. (1983)
Burford,
The resolution of contempt adopted by the House of Representatives in the 97th
Administrator
Congress arose out of the issuance of a Subcommittee subpoena for Agency
Resolution Agreed to
of the
records in November 1982, necessitated by the EPA’s refusal to make available
in House (Amended)
Environmental
to the Subcommittee pertinent and crucial information documenting how the
by Voice Vote on
Protection
Agency was carrying out its responsibilities under … the so-called Superfund
August 3, 1983. See
Agency
statute, which provides for the cleaning up of abandoned hazardous chemical
129 Cong. Rec.
waste dumps. The EPA Administrator’s refusal to comply with the subpoena led
22,692-98 (1983)
ultimately to the House’s citation of contempt.
The Committee’s reporting of House Resolution 180 reflects the fact that the
Subcommittee on Investigations and Oversight now has that information … and
can now discharge its investigative duties and assist the Congress, through the
oversight process, in carrying out its legislative responsibilities.
Ralph
Foreign Affairs, H.Rept. 99-462 (1986)
H.Res. 384, 99th
Bernstein,
Cong. (1986)
real estate
In closed hearings on December 11 and 12, 1985, the Subcommittee on Asian
investor
and Pacific Affairs questioned two witnesses, Ralph Bernstein, a nonlawyer who
Resolution Agreed to
works extensively in real estate investment and his brother Joseph Bernstein, a
in House to the First
Joseph
lawyer who assists with that investment. The questions concerned investment
Resolving Clause by
Bernstein,
work allegedly performed by them on behalf of President Ferdinand Marcos of
Yea-Nay Vote: 352 -
partner at
the Philippines and his wife, Imelda Marcos. That Subcommittee was pursuing
34 (Record Vote No:
Bernstein,
allegations of vast holdings by the Marcoses in the United States, part of a flight
34) and the Second
Carter & Dayo of capital from the Philippines that has been reportedly estimated at over $10
Resolving Clause by
billion in recent years.
Yea-Nay Vote: 345-
50 (Record Vote No:
The two witnesses, alleged to be at the center of a web of dummy corporations
35) on February 27,
shielding the Marcoses’ holdings, firmly refused to answer the Subcommittee’s
1986. See 132 Cong.
questions about their investment work, or even to state whether they knew or
Rec. 3,028-62 (1986)
had met the Marcoses. Their refusals to answer denied the Subcommittee
information that was crucial to its investigation.
Accordingly, the Subcommittee voted to report the contempts to the
Committee, and the Committee voted to report to the House a contempt
resolution for the Bernsteins.
Harriet
Judiciary, H.Rept. 110-423 (2007)
H.Res. 979, 110th
Miers, former
Cong. (2008)
White House
Beginning in March 2007, the House Judiciary Committee and its Subcommittee
Counsel
on Commercial and Administrative Law have held a number of hearings on the
Pursuant to the
U.S. Attorney terminations and related issues.
provisions of H.Res.
Joshua
982, H.Res. 979 and
Bolten,
On March 21, 2007, the Subcommittee on Commercial and Administrative Law
H. Res. 980 were
White House
authorized Chairman Conyers to issue subpoenas to J. Scott Jennings, Special
considered passed by
Chief of Staff
Assistant to the President, Office of Political Affairs; William Kelley, Deputy
the House by
White House Counsel; Harriet Miers, former White House Counsel; Karl Rove,
recorded vote: 223 -
Deputy Chief of Staff and Senior Advisor to the President; Joshua Bolten, White
32, 1 Present (Rol
House Chief of Staff; and Fred Fielding, White House Counsel, to obtain
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Congress’s Contempt Power and the Enforcement of Congressional Subpoenas

Name and
Resolution and
Title
Recommending Committee and Report Excerpt
Vote
testimony and documents. On June 13, 2007, Chairman Conyers and Senate
no. 60) on February
Judiciary Committee Chairman Patrick Leahy issued subpoenas to Joshua Bolten,
14, 2008. 154 Cong.
White House Chief of Staff, or appropriate custodian, for relevant White House
Rec. 2,175-90 (2008)
documents. On June 28, 2007, White House Counsel Fred Fielding wrote that
the White House would refuse to produce any documents pursuant to the
subpoena issued to Mr. Bolten based on executive privilege.
Former White House Counsel Harriet Miers refused to comply with a subpoena
requiring her appearance before the Subcommittee on July 12, 2007. Ms. Miers
not only failed to provide testimony or documents, but she also failed even to
appear for the hearing. Subcommittee Chair Sanchez proceeded to overrule Ms.
Miers’s claims of immunity and privilege and her ruling was sustained by
Subcommittee members in a recorded vote of 7–5.
The Subcommittee met on July 19, Subcommittee Chair Sanchez ruled against
the privilege claims with respect to Mr. Bolten’s refusal to produce any
documents pursuant to the subpoena issued to him (as now reflected in the
fourth count of the Resolution), and that ruling was upheld by a 7–3 vote.
Eric Holder,
Oversight and Government Reform, H. Rep. 112-546 (2012)
H. Res. 711, 112th
Attorney
Cong. (2012)
General
In February 2011, the Oversight and Government Reform Committee joined
Senator Charles E. Grassley, Ranking Member of the Senate Committee on the
Resolution agreed to

Judiciary, in investigating Operation Fast and Furious, a program conducted by
in House by
ATF. On March 16, 2011, Chairman Darrell Issa wrote to then-Acting ATF
recorded vote: 255 -
Director Kenneth E. Melson requesting documents and information regarding
67, 1 Present (Rol
Fast and Furious. Responding for Melson and ATF, the DOJ did not provide any
no. 441) on June 28,
documents or information to the Committee by the March 30, 2011, deadline.
2012. See 158 Cong.
The Committee issued a subpoena to Melson the next day. The DOJ produced
Rec. H4177-4417
zero pages of non-public documents pursuant to that subpoena until June 10,
(daily ed. June 28,
2011, on the eve of the Committee’s first Fast and Furious hearing.
2012)
On October 11, 2011, the DOJ informed the Committee its document
H. Res. 706, 112th
production pursuant to the March 31, 2011, subpoena was complete. The next
Cong. (2012)
day, the Committee issued a detailed subpoena to Attorney General Eric Holder
for additional documents related to Fast and Furious.
Resolution agreed to
in House by Yea and
On June 20, 2012, the Committee on Oversight and Government Reform met in
Nay Vote: 258 - 95, 5
open session with a quorum present to consider a report of contempt against
Present (Roll no.
Eric H. Holder, Jr., the Attorney General of the United States, for failure to
442) on June 28,
comply with a Congressional subpoena. The Committee approved the Report by
2012. See 158 Cong.
a rol call vote of 23-17 and ordered the Report reported favorably to the
Rec. H4164-75 (daily
House.
ed. June 28, 2012)
Source: Information compiled from committee reports, hearings, the Congressional Record and news sources by
CRS using LexisNexis, ProQuest Congressional, ProQuest Historical Newspapers, and the Legislative
Information Service (LIS) databases.

Congressional Research Service
69

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas

Table A-2. Other Committee Actions on Contempt Resolutions in the
House of Representatives, 1980-Present
Name and
Title
Recommending Committee/Subcommittee and Document Excerpt
Last Action
Charles W.
Government Operations/Subcommittee on Environment, Energy,
The subcommittee
Duncan,
and Natural Resources, H.Rept. 96-1099 (1980)
Chairman
Secretary of
On April 8, the subcommittee requested in writing two categories of DOE
recommended that the
Energy
documents related to the petroleum import fee: “(t)he final version or prior
contempt of Congress
drafts of al memoranda, letters, studies, briefing papers or any other
be purged based on the
documents prepared” by members of the staffs of DOE’s Economic
subsequent production
Regulatory Administration and Office of Policy Evaluation relating to the
of documents. See
import fee, and “(a)ny other documents pertaining to the role played by DOE
H.Rept. 96-1099 at 29
in the President’s decision to impose an import fee.”
Secretary Duncan and the Department produced some documents to the
subcommittee for the first time on April 23, along with the letter of that date
setting forth certain privilege claims.
The subcommittee reiterated its rejection of the Administration’s position
regarding congressional access to these documents and voted unanimously to
renew the subpoena.
At the hearing of April 29, the subcommittee voted unanimously to hold
Secretary Duncan in contempt for his sustained failure to produce the
subpoenaed documents.
Nelson
Government Operations/Subcommittee on Commerce, Consumer
The Hunts requested
Bunker Hunt,
and Monetary Affairs, Silver Prices and the Adequacy of Federal Actions in the
an opportunity to
silver trader
Marketplace, 1979-80 Before the Subcomm. on Commerce, Consumer, and
appear and the
W. Herbert
Monetary Affairs of the H. Comm. of Government Operations, 96th Cong. (1980)
subcommittee
Hunt, silver
On April 22, the Commerce, Consumer and Monetary Affairs Subcommittee
withdrew its contempt
trader
unanimously authorized the issuance of subpoenas directing Nelson Bunker
recommendation. See
Hunt and William Herbert Hunt to appear before the subcommittee in
Silver Prices hearing,
connection with its investigation into the adequacy of the Federal response to
Letter from the
recent events in the silver and related financial markets. The subpoenas were
Subcommittee
authorized after Messers. Hunt refused an April 7 written request to appear
Chairman, at 459
voluntarily before the subcommittee.
Notwithstanding the command of the subpoenas, the Hunts failed to appear.
At a meeting of the subcommittee on Tuesday, April 29, 1980, the
subcommittee, by a vote of 6 ayes, 0 nays, voted to recommend that Messrs.
Hunt be held in contempt of Congress for failure to appear on the return
date of the subpoena.
Nicholas
Government Operations/Subcommittee on Commerce, Consumer,
The subcommittee and
Gouletas,
and Monetary Affairs, 126 Cong. Rec. D1515 (daily ed. Dec. 1, 1980)
the ful committee
Chairman of
The Subcommittee on Commerce, Consumer, and Monetary Affairs voted
agreed to accept less
American
contempt citation against Nicholas Gouletas (American Invsco Corp.) for
material than was in the
Invsco Corp.
failure to produce documents required by committee subpoena.
original subpoena. See
Condominium hearing at
Condominium and Cooperative Conversion: The Federal Response Before a
822
Subcomm. of the H. Comm. of Government Operations, Part 1, 97th Cong. (1980)
The Subcommittee held hearings into the public policy consequences of the
national condominium and cooperative conversation trend, including an
examination of the manner in which Federal agency policies, practices, and
procedures impact this trend. In order to test the effectiveness, efficiency, and
effects of Federal programs and practices, the Subcommittee, among other
things, studied the conversation activities of American Invsco and other
corporations.
James B.
Government Operations/Subcommittee on Environment, Energy,
On July 29, Mr.
Edwards,
and Natural Resources, H.Rept. 97-994 (1982)
Edwards signed the
Secretary of
Union Oil contract and
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Congress’s Contempt Power and the Enforcement of Congressional Subpoenas

Name and
Title
Recommending Committee/Subcommittee and Document Excerpt
Last Action
Energy
In June of 1981, the Subcommittee began an investigation of the negotiation
the documents were
by the Department of Energy of two financial assistance packages under DPA
produced to the
[the Defense Production Act] for commercial-scale synthetic fuels plants. The
Subcommittee. H.Rept.
inquiry was initiated after reports were received that the department was
97-994 at 187
negotiating contracts with terms that were very favorable to the private
companies. One of the contracts was with Union Oil Co., the nation’s 15th
largest oil company, and another was with TOSCO, which was in partnership
with Exxon, the nation’s largest oil company.
DOE refused to give the Subcommittee any information about the contracts,
claiming that while in negotiation they could not be discussed with Congress.
On June 24, 1981, the Subcommittee voted to subpoena documents relating
to the Union contract from the department.
DOE provided information in six areas of the Union contract and also gave
the Subcommittee staff additional briefings. However, because of his refusal to
produce the requested documents, Secretary Edwards was held in contempt
by the Subcommittee on July 23, 1981.
James G.
Energy & Commerce/Subcommittee on Oversight and
Report on contempt of
Watt,
Investigations, H.Rept. 97-898 (1982)
Congress issued by
Secretary of
During an investigation into the functioning of the Mineral Lands Leasing Act,
committee.
the
the Subcommittee sought information from the Department of the Interior.
Documents were
Department of
Secretary Watt was the custodian of relevant documents. When Secretary
produced and the
the Interior
Watt failed to cooperate, the Subcommittee found it necessary to subpoena
Committee did not

the documents. This led to an assertion of executive privilege on October 14,
press the resolution to
1981 by the President and a further refusal to provide the requested material.
cite the Secretary for
In early February, the Subcommittee voted to hold Secretary Watt in
contempt of the
contempt and referred the matter to the Committee on Energy and
House.
Commerce. On February 25th, the Committee passed a resolution to report
the Secretary’s refusal to comply with the Subcommittee’s subpoena to the
House with the recommendation that he be cited for contempt of the House
of Representatives.
John M.
Government Reform and Oversight, H.Rept. 104-598 (1996)
Report on contempt of
Quinn, White
Since the controversial firings of the longtime White House Travel Office
Congress issued by
House Counsel
employees, the history of the investigations into what has become known as
committee.
David
“Travelgate" has been one of a White House intent on keeping investigators
On May 30, 1996, the
Watkins,
at bay and relevant documents under wraps. While this Committee has
day on which the
former White
succeeded in obtaining far more information and records than has any
contempt resolution
House official
previous investigation into the Travel Office firings, the record is still
was scheduled for a
Matthew
incomplete because of the insistence of the President to withhold documents
vote on the floor of the
Moore, former from the American public by taking the extraordinary step of invoking an
House, the White
White House
undefined, vague, and ultimately ineffective protective assertion of executive
House produced 1,000
official
privilege.
documents to the
The subpoenaed records were necessary for the Committee to resolve by
committee. In the wake
direct factual evidence, fundamental factual questions relating to the actions,
of this production, the
direction, knowledge, recommendations, or approval of actions by individuals
committee postponed
in the White House, in responding to the allegations about the Travel Office
the contempt vote on
employees as well as the subsequent investigations into the White House
the floor. See H.Rept.
Travel Office matter.
104-874 at 47 (1997)
The issuance of subpoenas was not sufficient to ensure the production of all
relevant records. Unfortunately, it is necessary to take the serious step of
holding parties who fail to produce requested documents in contempt.
Accordingly, the Committee voted to report to the House a contempt
resolution for John M. Quinn, David Watkins, and Matthew Moore.
Janet Reno,
Government Reform and Oversight, H.Rept. 105-728 (1998)
Report on contempt of
Attorney
On August 6, 1998, the Committee on Government Reform and Oversight,
Congress issued by
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Congress’s Contempt Power and the Enforcement of Congressional Subpoenas

Name and
Title
Recommending Committee/Subcommittee and Document Excerpt
Last Action
General of the
by a vote of 24 to 19, adopted the following report, including the following
committee.
United States
resolution, recommending to the House of Representatives that Attorney
Contempt report not
General Janet Reno be cited for contempt of Congress.
taken up on the floor
The Committee has investigated allegations that the Justice Department failed
before the end of the
adequately to investigate and prosecute a number of cases involving major
105th Congress. See
Democratic National Committee fundraisers and donors.
H.Rept. 106-1027 at
In July 1998, the Committee subpoenaed two memoranda prepared by the
129 (2000)
FBI Director, Louis Freeh, and the lead attorney for the Justice Department
Campaign Finance Task Force, Charles La Bella. The Committee has a need to
review these documents as part of its oversight of the Justice Department’s
campaign finance investigation.
Chairman Burton issued a subpoena for these two memoranda. However, the
Attorney General failed to comply with that subpoena. Therefore, the
Committee voted to approve the contempt of Congress report by a vote of
24 to 19.
Franklin L.
Commerce/Subcommittee on Oversight and Investigations, H.Rept.
Report on contempt of
Haney,
105-792 (1998)
Congress issued by
Franklin L.
After five months of attempting to gain documents and other information
committee.
Haney
voluntarily, the Subcommittee on Oversight and Investigations of the
Documents were
Company,
Committee on Commerce voted on April 30, 1998, to authorize the issuance
produced. See Staff of
Building
of subpoenas in furtherance of the Committee’s investigation into the
Subcomm. on
Finance
circumstances surrounding the planned relocation of the Federal
Oversight and
Company of
Communications Commission (FCC) to the Portals - a relocation that has
Investigations, 105th
Tennessee,
become embroiled in controversy over the possible use of improper or illegal
Cong., Portals and
Tower
influence by certain key figures in the $400 million deal. Pursuant to that
Related Matters 69
Associates II,
authorization, Commerce Committee Chairman Tom Bliley signed and had
(Comm. Print 1998)
Inc.
served, on June 4, 1998, four subpoenas demanding that Franklin L. Haney -
whose company Tower Associates II, Inc., is a general partner in the
partnership that owns the Portals buildings - and three companies under his
control produce specified documents before the Subcommittee at its business
meeting on June 17, 1998.
After debate and due consideration of these objections, and based on legal
counsel provided by the Congressional Research Service, the House General
Counsel’s Office, and Committee counsel, the Subcommittee overruled all of
Mr. Haney’s objections. When Mr. Haney’s attorney stated that his client
would not comply at that time with the Subcommittee’s ruling, the
Subcommittee proceeded to hold Mr. Haney in contempt of Congress, and
directed the Subcommittee chairman to report and refer the matter to the
full Committee.
Project on
Resources, H.Rept. 106-801 (2000)
H. Res. 657, 106th
Government
Since May 1999, the Committee on Resources has been conducting an
Cong. (2000)
Oversight
oversight review of payments made by a private corporation to two federal
Resolution withdrawn
(POGO)
employees with duties affecting public lands.
pursuant to clause 2,
Henry M.
During the course of our work, many witnesses refused voluntary interviews
rule XVI on October
Banta,
and requests for records. In June 1999, the Committee authorized the
27, 2000. See 146
Director and
Chairman to issue subpoenas in this oversight project. Chairman Young
Cong. Rec. 25,201-31
former
thereupon issued subpoenas requiring the production of records from various (2000)
Chairman of
parties. In spite of the plain requirements of one subpoena, certain documents
the Board of
were heavily redacted. In February 2000, that same party and two others
POGO
announced publicly that they intended to refuse production under subpoenas
Robert A.
issued on February 17, 2000. Further subpoenas were also met with defiance.
Berman,
On May 4, 2000, the Subcommittee on Energy and Mineral Resources began a
Department of
series of hearings in this matter. Because many important witnesses had
the Interior
refused requests for interviews, I [Chairman Young] issued subpoenas
employee
requiring appearances at four hearings. During the course of these hearings,
Congressional Research Service
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Congress’s Contempt Power and the Enforcement of Congressional Subpoenas

Name and
Title
Recommending Committee/Subcommittee and Document Excerpt
Last Action
Keith Rutter,
four witnesses refused to answer questions ruled by the Subcommittee to be
Assistant
pertinent and ordered to be answered.
Executive
The Committee on Resources reports these facts to the House with a
Director of
recommended resolution authorizing you to report the facts of these refusals
POGO
to the United States Attorney for the District of Columbia. If the House
Danielle
accepts the Committee’s recommendation and adopts our report, upon
Brian
certification by you, the United States Attorney would ask a grand jury to
Stockton,
consider contempt of Congress charges against these parties.
Executive
Director of
POGO
Miles Jones,
Commerce, H.Rept. 106-527 (2000)
Report on contempt of
doctor and
On November 9, 1999, the House of Representatives adopted a resolution
Congress issued by
founder of
calling upon the Congress to conduct an investigation into whether human
committee.
Opening Lines
fetuses and fetal tissue are being bought and sold in violation of Federal law
Dr. Jones subsequently
(H. Res. 350).
agreed to testify before
Fol owing the passage of the House resolution, the Committee on Commerce the Committee, so the
launched an investigation into whether Opening Lines or others involved in
Chairman did not
procuring, selling, or buying fetal tissue were operating in compliance with
forward the Report on
Federal law. As part of this investigation, Chairman Bliley wrote to Dr. Miles
contempt to the ful
Jones of Opening Lines on two separate occasions requesting that he respond
House. However, due
to specific questions relating to Opening Lines’ business practices. Dr. Jones
to concerns raised by
failed to respond to either letter.
the FBI—which
launched a criminal
Given these facts and Dr. Jones’s failure to respond to voluntary Committee
inquiry into Dr. Jones’s
requests for information, Chairman Bliley authorized and issued, a subpoena
activities—the
ad testificandum on February 29, 2000, commanding Dr. Jones’s appearance
Committee did not re-
and testimony at a hearing of the Subcommittee on Health and Environment
call Dr. Jones to testify.
on March 9, 2000.
See H.Rept. 106-1047
Fol owing opening statements from the Members of the Subcommittee,
at 162 (2001)
Subcommittee Chairman Michael Bilirakis cal ed the scheduled witnesses to
the witness table, but Dr. Jones did not appear as commanded by his
subpoena.
Chairman Bilirakis recessed the hearing and convened a business meeting of
the subcommittee. Chairman Bliley introduced a resolution finding that Dr.
Jones was lawfully served with a subpoena and finding Dr. Jones in contempt
of Congress for his contumacious failure to appear as commanded. The
resolution was approved by a record vote of 27 ayes and no nays.
Karl Rove,
Judiciary, H.Rept. 110-847 (2008)
Report on contempt of
former White
Beginning in March 2007, the House Judiciary Committee and its
Congress issued by
House Advisor
Subcommittee on Commercial and Administrative Law (CAL Subcommittee)
committee.
held a number of hearings on the alleged politicization of the Justice
In March 2009, the
Department, including the termination of U.S. Attorneys in 2006, allegations
Committee reached an
of selective prosecution, and related issues.
agreement with the
Because Mr. Rove was considered a central witness who could provide
former Administration
information that was unavailable through any other source, in March 2007
to resolve the
Chairman John Conyers, Jr., and CAL Subcommittee Chair Linda Sanchez
Committee’s lawsuit
sought Mr. Rove’s voluntary compliance with the Committee's investigation,
and contempt citations.
along with that of other witnesses, by letter to White House Counsel Fred
Pursuant to that
Fielding.
agreement, the
Committee proceeded
In response, Mr. Fielding explained that he was prepared to make Mr. Rove
over the next several
and other White House officials available for interviews with the House and
months to receive
Senate Judiciary Committees on a joint basis; but his offer was conditioned on
access to previously
various preconditions and scope restrictions.
subpoenaed documents
On March 21, 2007, the CAL Subcommittee authorized Chairman Conyers to and to obtain the on-
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Congress’s Contempt Power and the Enforcement of Congressional Subpoenas

Name and
Title
Recommending Committee/Subcommittee and Document Excerpt
Last Action
issue subpoenas to Karl Rove and other present and former White House
the-record testimony
officials to obtain testimony and documents.
of former White House
Former White House Deputy Chief of Staff Karl Rove refused to comply with
officials Harriet Miers
a subpoena requiring his appearance before the CAL Subcommittee on July
and Karl Rove. See
10, 2008, failing to appear for the hearing to answer questions.
H.Rept. 111-712 at 17
(2011)
On July 10, 2008, CAL Subcommittee Chair Sanchez proceeded to overrule
the claims of immunity and privilege with respect to Mr. Rove, and the ruling
was sustained by CAL Subcommittee Members in a recorded vote of 7-1.
On July 30, 2008, the Committee met in open session and ordered [H.Rept.
110-847, resolution recommending that the House of Representatives find
Karl Rove in contempt of Congress for refusal to comply with a subpoena
duly issued by the Committee on the Judiciary] favorably reported, without
amendment, by a vote of 20 to 14.
Source: Information compiled from committee reports, hearings, the Congressional Record and news sources by
CRS using LexisNexis, ProQuest Congressional, ProQuest Historical Newspapers, and the Legislative
Information Service (LIS) databases.
Table A-3. Floor Votes on Civil Enforcement Resolutions in the Senate, 1980-Present
Name and
Title
Recommending Committee/Subcommittee and Document Excerpt
Last Action
William
Governmental Affairs, S.Rept. 96-899 (1980)
S. Res. 502, 96th
Cammisano,
Cong. (1980)
Prisoner
Pursuant to Senate Resolution 361, the Senate Permanent Subcommittee on
Investigations voted to hold a hearing on or after April 28, 1980 concerning
Agreed to in Senate
organized crime and its use of violence. The Subcommittee also voted to
with a preamble by
recommend to the Committee that an immunity order be obtained for Wil iam Voice Vote on
Cammisano. On April 3, the Chairman of the Subcommittee issued a subpoena
September 15, 1980.
for William Cammisano, which was served on him at Springfield Medical
See 126 Cong. Rec.
Center, Missouri, on April 6. On April 10, the Subcommittee applied for a
25,284 (1980)
Writ of Habeas Corpus Ad Testificandum in order to summon Cammisano,
who as a prisoner was in the custody of the United States; the writ was issued
that day.
On May 1, 1980, William Cammisano appeared before the Subcommittee in its
fourth day of hearings. He refused, even after immunization, to answer any
substantive questions.
On August 5, 1980, the Committee on Government Affairs met and approved
a resolution directing the Senate Legal Counsel to bring a civil action to
enforce the subpoena of the Senate Permanent Subcommittee on
Investigations to William Cammisano. A quorum for the purposes of
transacting business, voted to approve the resolution—9 Senators. One vote in
favor of the resolution was reported by proxy.
Anthony J.
Governmental Affairs, S.Rept. 98-354 (1984)
S. Res. 293, 98th
Accardo,
Cong. (1984)
Member of
On November 17, 1983, Anthony J. Accardo, an al eged member of organized
Organized
crime in Chicago, appeared under subpoena at a hearing of the Permanent
Agreed to in Senate
Crime in
Subcommittee on Investigation on labor racketeering. Mr. Accardo was
with a preamble by
Chicago
immunized under court order, but nevertheless refused to answer the
Voice Vote on
Subcommittee’s substantive questions. The Subcommittee and the Committee
February 23, 1984. See
on Governmental Affairs recommended that the Senate authorize a civil
130 Cong. Rec. 3,139
enforcement action to require Mr. Accardo to testify.
(1984)
On February 9, 1984, the resolution was approved by vote of nine members of
the Permanent Subcommittee on Investigation.
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Name and
Title
Recommending Committee/Subcommittee and Document Excerpt
Last Action
William A.
Impeachment Trial, S.Rept. 101-98 (1989)
S. Res. 162, 101st
Borders, Jr.,
Cong. (1989)
On July 24 and 27, 1989, William A. Borders, Jr., appeared under subpoena
Washington,
before the Impeachment Trial Committee on the Articles Against Judge Alcee
Agreed to in Senate
D.C. Attorney
L. Hastings, but refused to answer the Committee’s questions. Mr. Borders
with a preamble by
was a central figure in the Articles of Impeachment. The Committee
Voice Vote on August
recommended that the Senate direct the Senate Legal Counsel to bring a civil
3, 1989. See 135 Cong.
action to require Mr. Borders to testify on facts that are pertinent to the
Rec. 18,475 (1989)
Articles of Impeachment.

The record of the roll call vote of the Impeachment Trial Committee on the
Articles Against Judge Alcee L. Hastings to report the original resolution

favorably was as follows: Yeas-12 and Nays-0.
Senator Bob
Select Committee on Ethics, S.Rept. 103-164 (1993)
S. Res.153, 103rd
Packwood
Cong. (1993)
On March 29, 1993 and July 16, 1993, the Committee requested that Senator
Packwood produce to the Committee documents relevant to the Committee’s
Agreed to in Senate
preliminary inquiry into allegations of sexual misconduct and intimidation of
with a preamble by
witnesses by Senator Packwood.
Yea-Nay Vote: 94-6
(Record Vote No:
During a deposition of Senator Bob Packwood on October 5 and 6, 1993, in
348) on November 2,
connection with the Committee’s preliminary inquiry into allegation of sexual
1993. See 139 Cong.
misconduct and intimidation of witnesses by Senator Packwood, it became
Rec. 27,031 (1993)
apparent that Senator Packwood’s diaries covering 1969 to the present, and
which had to been produced to the Committee in response to its two
document requests, contained information relevant to the Committee’s
inquiry.
After much discussion and negotiation between Senator Packwood and his
attorneys, and the Committee, Senator Packwood agreed to produce his
diaries for review by the Committee. As the Committee’s review proceeded
Senator Packwood refused to produce additional diaries, until he be al owed to
mask additional private and personal information in the diaries, in violation of
the original agreement.
In lieu of issuing a subpoena, the Committee offered a compromise. Senator
Packwood refused to produce his diaries under the terms of this proposed
compromise.
On October 20, 1993, the Committee voted to authorize the issuance of a
subpoena to Senator Bob Packwood, requiring him to produce his daily diaries
for the years 1989 to the present.
On October 21, the Committee voted to recommend that the Senate Legal
counsel bring a civil law suit to enforce the Committee’s subpoena: Yeas-6 and
Nays-0.
William H.
Special Committee to Investigate Whitewater Development
S. Res. 199, 104th
Kennedy, III,
Corporation and Related Matters, S.Rept. 104-191 (1995)
Cong. (1995)
Former
Associate
On December 8, 1995, the Committee issued a subpoena to Wil iam H.
Agreed to in Senate
Counsel to
Kennedy, III, former Associate Counsel to the President and now of counsel to with an amendment
President
the Rose Law Firm of Little Rock, Arkansas, to produce notes that he took at a and an amendment to
Clinton
meeting held on November 5, 1993, at the law firm of Williams & Connolly.
the Title and an
The purpose of this meeting, which was attended by both personal counsel for
amended preamble by
the President and Mrs. Clinton and by White House officials, was to discuss
Yea-Nay Vote: 51-45
Whitewater Development Corporation (“Whitewater”) and related matters.
(Record Vote No:
610) on December 20,
On December 8, 1995, the Committee issued a subpoena to Mr. Kennedy
1995. See 141 Cong.
directing him to “[p]roduce any and all documents, including but not limited to, Rec. 37,761 (1995)
notes, transcripts, memoranda, or recordings, reflecting, referring or relating
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Name and
Title
Recommending Committee/Subcommittee and Document Excerpt
Last Action
to a November 5, 1993 meeting attended by William Kennedy at the offices of
Williams & Connolly.” The Committee advised Mr. Kennedy that, if he had
objections to the subpoena, he was invited to submit a legal memorandum to
the Committee by December 12, 1995.
On December 18, 1995, the Committee received a letter indicating that Mr.
Kennedy had declined to comply with the Committee’s December 15
subpoena. That same day, the Chairman of the Committee overruled the
objections to the subpoena and ordered and directed Mr. Kennedy to produce
the subpoenaed documents by 3:00 p.m. the fol owing day. Mr. Kennedy did
not comply with this order.
Accordingly, the Committee recommended that the Senate authorize a civil
enforcement proceeding to compel Mr. Kennedy to comply with the
Committee's subpoena.
The record of the roll call vote of the Special Committee to Investigate
Whitewater Development Corporation and Related Matters to report the
original resolution favorably was as follows: Yeas-10 and Nays-8.
Source: Information compiled from committee reports, hearings, the Congressional Record and news sources by
CRS using LexisNexis, ProQuest Congressional, ProQuest Historical Newspapers, and the Legislative
Information Service (LIS) databases.
Table A-4. Other Committee Actions on Contempt Resolutions in the Senate,
1980-Present
Name and
Title
Recommending Committee/Subcommittee and Document Excerpt
Last Action
William
Judiciary. Smith Cited for Contempt of Congress, Facts on File World News
Contempt citation
French
Digest, Nov. 4, 1984, p. 812 F2.
dated October 31,
Smith,
1984.
Attorney
On October 31, 1984 the Senate Judiciary Committee’s Subcommittee on
General
International Trade, Finance, and Security Economics cited Attorney General
Wil iam French Smith for contempt of Congress for refusing to produce Justice
Department documents on an investigation of General Dynamics Corp.
The documents pertained to a 1982 decision by the department to close a
fraud probe of cost overruns on Navy nuclear attack submarines built by the
Electric Boat Division of General Dynamics during the 1970s. A separate
Subcommittee had previously voted to subpoena department records related
to the decision.
Assistant Attorney General Stephen S. Trott argued that the material was
confidential because the General Dynamics investigation had been reopened by
the department.
Under congressional rules, the contempt citation would not become valid until
approved by the ful Judiciary Committee and passed as a resolution on the
Senate floor.
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Name and
Title
Recommending Committee/Subcommittee and Document Excerpt
Last Action
Joshua
Judiciary, S.Rept. 110-522 (2008)
S. Res. 707, 110th
Bolten,
Cong. (2007)
White House
The Committee on the Judiciary, reported favorably on original resolutions (S.
Chief of Staff
Res. 707) authorizing the President of the Senate to certify the facts of the
S. Res. 708, 110th
failure of Joshua Bolten, as the Custodian of Records at the White House, to
Cong. (2007)
Karl Rove,
appear before the Committee on the Judiciary and produce documents as
Placed on Senate
Deputy Chief
required by Committee subpoena, and (S. Res. 708) authorizing the President
Legislative Calendar
of Staff
of the Senate to certify the facts of the failure of Karl Rove to appear and
testify before the Committee on the Judiciary and to produce documents as
under General Orders
required by Committee subpoena, and recommends that the resolutions do
on November 19,
pass.
2008. See 154 Cong.
Rec. S10,660 (2007)
Since the beginning of the 110th Congress, the Judiciary Committee had
conducted an investigation into the unprecedented mass firings of Federal

prosecutors by those in the administration of the President who appointed
them.
The Committee’s attempted to obtain information from the White House, first
requested voluntarily and later legal y compel ed by subpoena. In the process,
the White House asserted blanket claims of executive privilege, and claims of
absolute immunity, to block current and former officials from testifying and
producing documents in compliance with the Committee's subpoenas.
On November 29, 2007, Chairman Leahy ruled that the White House's claims
of executive privilege and immunity were not legally valid to excuse current
and former White House employees from appearing, testifying and producing
documents related to this investigation. Accordingly, Chairman Leahy directed
Karl Rove and White House Chief of Staff Joshua Bolten to comply
immediately with the Committee's subpoenas by producing documents and
testimony. They failed to do so, and on December 13, 2007, a bipartisan
majority of the Committee voted to report favorably resolutions finding Mr.
Rove and Mr. Bolten in contempt of Congress.
The Senate Judiciary Committee considered the resolutions on December 13,
2007. After debate, the Committee agreed to report the resolutions favorably
to the Senate by the fol owing vote: Yeas–12 and Nays-7.
Source: Information compiled from committee reports, hearings, the Congressional Record and news sources by
CRS using LexisNexis, ProQuest Congressional, ProQuest Historical Newspapers, and the Legislative
Information Service (LIS) databases.


Author Contact Information

Todd Garvey
Alissa M. Dolan
Legislative Attorney
Legislative Attorney
tgarvey@crs.loc.gov, 7-0174
adolan@crs.loc.gov, 7-8433



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Acknowledgments
Julia Taylor and Cassandra Foley, Law Librarians in the Knowledge Services Group, provided research
assistance for the Appendix of this report.
Over time, authors of various versions of this report include the following Legislative Attorneys: Charles
Doyle, Jay R. Shampansky, Morton Rosenberg, T. J. Halstead, and Todd B. Tatelman.

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