Criminal Contempt of Congress: Frequently Asked Questions

Criminal Contempt of Congress: Frequently Asked Questions

Legal Sidebari

Criminal Contempt of Congress: Frequently
Asked Questions
June 5, 2023
The House Committee on Oversight and Accountability (Committee) has been engaged in an oversight
dispute with the Federal Bureau of Investigation (FBI) over an agency document that reportedly contains
information regarding “an alleged criminal scheme involving then Vice President Biden.” The
Committee’s original subpoena, issued on May 3, 2023, demanded the production of any FBI form FD-
1023—a form used to “record unverified reporting from a confidential human source”—containing the
term “Biden.” The Committee shortly thereafter narrowed the subpoena by adding additional terms to
limit the number of responsive documents. The amended subpoena contained a return date of May 30.
In response, the FBI briefed the Committee and expressed a willingness to pursue an “optimal
accommodation,” but it did not provide the Committee with documents responsive to the subpoena. The
FBI outlined its position in a May 10 letter to the Committee, asserting that
It is critical to the integrity of the entire criminal justice process and to the fulfillment of our law
enforcement duties that FBI avoid revealing information—including unverified or incomplete
information—that could harm investigations, prejudice prosecutions or judicial proceedings,
unfairly violate privacy or reputational interests, or create misimpressions in the public.
The letter concluded by offering to “discuss whether and how we can accommodate your request without
violating our law enforcement and national security obligations.”
On May 30, the FBI informed the Committee that it would not provide the Committee with the
subpoenaed document but would allow Chairman James Comer and Ranking Member Jamie Raskin to
view the document in a secure facility. Chairman Comer and Representative Raskin will reportedly view
the document and receive additional contextual information through a briefing on June 5, but Chairman
Comer has reiterated that “if the FBI fails to hand over the FD-1023 form as required by the subpoena, the
House Oversight Committee will begin contempt of Congress proceedings” against FBI Director
Christopher Wray.
The context of this dispute suggests that Chairman Comer is likely considering a citation for criminal
contempt of Congress—a criminal offense outlined in federal law for noncompliance with a congressional
subpoena. This Sidebar answers a number of frequently asked questions about criminal contempt of
Congress.
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What is criminal contempt of Congress?
Criminal contempt of Congress is a process by which the House or Senate can seek to hold a witness
accountable for failing to comply with a committee subpoena. Under 2 U.S.C. § 192, it is a misdemeanor
criminal offense to “willfully” fail to comply with a valid congressional subpoena for either documents or
testimony “upon any matter under inquiry before either House . . . or any committee of either House of
Congress.” Whereas the House and Senate originally used their own legislative powers to enforce
subpoenas, Congress chose to criminalize subpoena noncompliance in 1857. By the 1930s, both chambers
were relying on criminal contempt as a chief method of subpoena enforcement.
What are the penalties for being held in criminal contempt?
A witness suffers no direct legal consequence from House or Senate approval of a contempt citation,
though a variety of political consequences may flow from being held in contempt. If the individual is
prosecuted and convicted, violations of § 192 are punishable by a fine of up to $100,000 and
imprisonment “for not less than one month nor more than twelve months.” The federal sentencing
guidelines also inform the severity of the penalties. Former presidential adviser Stephen Bannon, for
example, was convicted of criminal contempt of Congress in 2022 and sentenced to four months in jail
and ordered to pay a fine of $6,500.
What is the purpose of holding an individual in criminal contempt?
The criminal contempt of Congress provision supports Congress’s investigative and oversight functions.
Criminal contempt serves two specific purposes. First, it serves to punish an individual for failure to
comply with a lawful congressional subpoena. Those who willfully refuse valid congressional demands
can be held accountable through the criminal law. Second, the provision serves to deter future
noncompliance with congressional investigations. The mere knowledge that refusing a subpoena can
result in imprisonment and fine can dissuade a witness from ignoring congressional demands and
encourage cooperation with congressional investigations.
Criminal contempt may also serve to assist a committee in obtaining the information it seeks. This
purpose, however, is served only indirectly in that even a successful criminal contempt prosecution does
not necessarily lead to the release of the information to Congress. The potential consequence of a
conviction is jail time and fine, not a legal mandate to turn over the subpoenaed information. The threat of
criminal contempt, however, can be used as leverage to encourage compliance with a subpoena. The
House Foreign Affairs Committee, for example, recently used the threat of contempt when it successfully
obtained information from the U.S. State Department on the Afghanistan withdrawal.
What is the process for holding someone in criminal contempt?
Criminal contempt of Congress is a unique criminal offense; as a result, its enforcement process is
different from that of traditional criminal violations. That process is established in 2 U.S.C. § 194. Under
that provision, when a committee reports to the House or Senate that a witness has failed to comply with a
subpoena, “it shall be the duty” of the President of the Senate or the Speaker of the House to “certify” the
facts of the contempt “to the appropriate United States attorney, whose duty it shall be to bring the matter
before the grand jury for its action.” Although the statute does not expressly require approval of the
contempt citation by the committee’s parent body, both congressional practice and at least one judicial
decision suggest that approval by the committee’s chamber may be necessary. As a result, the process of
holding an individual in contempt generally includes a vote of the committee reporting the matter to the
full House or Senate, followed by a vote of the full chamber to direct the certification of the matter to the
U.S. Attorney.

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Who enforces criminal contempt?
Like other federal criminal offenses, the contempt statute is enforced by the Department of Justice (DOJ).
Congress may not act as a “law enforcement agency,” and thus it must rely on the executive branch to
prosecute violations of federal criminal law, even when the offense is committed against Congress itself.
Congress’s reliance on DOJ to prosecute criminal contempt charges represents the key weakness to the
use of criminal contempt as a subpoena enforcement mechanism against executive branch officials.
Although 2 U.S.C. § 194 explicitly states that it “shall be the duty” of the U.S. Attorney to present an
approved contempt citation to a grand jury, DOJ has not interpreted the statute as creating a mandatory
duty, asserting instead that it retains discretion over any individual contempt referral from Congress.
Since 2008, the House has held ten individuals in criminal contempt of Congress. Of those referrals, the
DOJ sought the indictment of two.
What justification has DOJ provided for its decisions not to seek indictments?
Both Democratic and Republican administrations have generally been unwilling to prosecute current or
former executive branch officials for criminal contempt of Congress when the official was acting under
direction from the sitting President in denying Congress access to the subpoenaed information. The
majority of these declination decisions have involved claims of executive privilege, with DOJ repeatedly
concluding that the contempt statutes cannot constitutionally be applied to an executive branch official
who is protecting the President’s claim of executive privilege. The DOJ position, however, does not
require that a declination decision be tethered to a claim of executive privilege. The Department has
argued that it “retains traditional prosecutorial discretion regardless of whether the contempt citation is
related to an assertion of executive privilege.” Pursuant to this asserted discretion, a U.S. Attorney may,
based on any number of reasons, leave a congressional citation unenforced.
If a contempt citation is approved, would DOJ prosecute Director Wray?
If the House holds Director Wray in criminal contempt of Congress, the contempt citation would be
certified to the U.S. Attorney for the District of Columbia. Past practice suggests that either the U.S.
Attorney or DOJ would then evaluate the case for further action. Any criminal contempt citation would be
assessed on its individual facts, but past executive branch practice suggests that DOJ likely would not
refer the matter to a grand jury.
The President has not asserted executive privilege to protect the subpoenaed FD-1023. The executive
branch has, however, previously considered law enforcement sensitive information as falling under the
umbrella of executive privilege. If the President asserts executive privilege over the form, that assertion
would likely be the proffered ground for inaction. If the President does not assert executive privilege,
executive branch policy would still allow DOJ to rely on traditional principles of prosecutorial discretion
to decline to pursue the contempt. For example, it is possible DOJ could assert that the FBI’s
confidentiality interests justify not seeking an indictment in this specific case.
What is the status of the various criminal contempt of Congress citations approved by
the House over the last four years?
The House has approved six criminal contempt of Congress citations since 2019. In four instances
(involving Dan Scavino, Mark Meadows, William Barr, and Wilbur Ross) the DOJ declined to present the
citations to the grand jury, and the criminal matters ceased. In the other two instances (concerning Peter
Navarro and Stephen Bannon), the DOJ sought and received an indictment. Mr. Bannon was convicted
and sentenced in 2022, but his sentence has been stayed pending appeal to the U.S. Court of Appeals for
the D.C. Circuit. Mr. Navarro’s trial is scheduled to begin this September.

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Author Information

Todd Garvey

Legislative Attorney

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