Posted on April 28 2019
Contempt of Congress 101...
In the coming days, weeks and months you will start to hear:
We will hold you in Contempt Of Congress
The facts are Congress has three options available to them when a witness defies a Congressional Subpoena. Below you will find a brief summary of each option. A more fulsome discussion on each will follow. But here are a few simple takeaways:
yes this is real and yes it’s been dormant since 1935. Inherent Contempt grants Congress the power to rely on its own constitutional authority . Allowing Congress to detain and imprison a contemnor until the individual complies with congressional demands.
I am certain you’ve heard the Cable TV News pundits pontificate that the Trump Justice Department will be (not unexpectedly) disinclined to initiate any criminal proceedings. There are a variety of reasons but the main one is the 1984 DOJ OLC Theodore “Ted” Olson Memo. This was later reaffirmed by this 2007 DOJ OLC memo. There is a really important distinction that threads/binds these two OLC memoes, that is “asserting Executive Privileged”. To the best of my knowledge, Trump had not invoked Executive Privilege on the Carl Kline, Don McGahn, Stephen Miller and/or IRS matters. Notwithstanding even if Trump tried to assert Executive Privilege as it relates to Don McGahn, Trump had a heavy hill to climb. There’s no such thing as retroactive Executive Privileged. In the McGahn matter, both he and Trump pierced that veil the moment McGahn sat down with investigators for some 30+ hours.
Civil Contempt Of Congress:
this option is a tad bit more nuanced and could lead to a costly and protracted legal battle. Moreover the Committee Chairs and/or the Speaker of the House would file in federal court. In which they would seek to obtain a civil judgment. Essentially asking a District Court to declare that the person served a Congressional Subpoena is legally obligated/ordered to comply with said congressional subpoena.
What you need to understand is the history of Contempt Of Congress. Back in 1922 colloquially known as the Teapot Dome Scandal. See Senate Historical Summary found here. The “scandal” centered around President Harding’s then Interior Secretary Albert Fall’s “secret” Oil Reserves leases. See UVA Miller Center write up, found here, which reads in part:
Teapot Dome in Wyoming to Harry Sinclair’s Mammoth Oil Company. Several weeks later, Fall leased more reserves at Elks Hill in California to Edward Doheny of the Pan American Petroleum and Transport Company. The deals were done in secret, and Fall was later convicted of taking a $100,000 bribe—the only cabinet officer ever to be found guilty of a crime. The scandal trashed Harding’s reputation.
At all relevant times I will provide you with embedded links to original data source. Generally speaking I’m not a fan of ruminating absent a factual predicate. More broadly it is inherently naive and factually incorrect to assume Congress’ subpoena power is absolute. It is not. And if anyone tells you differently, then you should request receipts to support their supposition. Conversely our Courts, District, Circuit Court Of Appeals and SCOTUS have consistently reaffirmed Cingress’ Subpoena power, but again it’s not an absolute power.
There are several Supreme Court Rulings that not only affirm Congress’s power but also solidifiy the separation of powers doctrine which is fundamental to the core principles of our Founding Father’s three- co-equal branches of Government.
🌶SpicyFiles Sidebar🌶 in recent months I’ve been somewhat vociferous in my public comments that the House Democrats need to throw out the DC Playbook. That Trump et al believe they are above our laws and Constitution. With respect to Contempt Of Congress this is one are that the House Democrats need to strictly play by the rules.
Why? Well there’s actuall case law on their side, as it related to inherent contempt of “Congress”. This leaves the Trump Administration in a position of weakness. Meaning Congress has (as thrice affirmed by SCOTUS) to
1) establish rules governing Congress (See 1995 Nixon below as in Judge Nixon not President Nixon), and
2) Congresx has the Constitutional Authority to conduct OverSight, furthermore that’s not up for negotiation, it’s literally enshrined in our Constitution. Irrespective of what Trump or his White House Counsel say.
3) if Congress doesn’t hold the line of what their powers are, then the Emperial Mad-King Trump will continue to usurp and centralize his “power”.
So let’s dive in to the Judicial Record Of Contempt Of Congress, Inherent Contempt and other historical precidential facts, not personal opinions but facts. Just give me the facts, man...
Anderson v. Dunn (1821):
Anderson attempted to bribe a member of Congress to receive favorable treatment from the government. The House order its sergeant-at-arms (Dunn) to arrest Anderson and bring him to the House where he was reprimanded by the Speaker for his contempt of Congress. Anderson then brought an action against Dunn for assault and battery and false imprisonment, claiming that the Constitution did not vest in Congress the power to punish for contempt.
Question before SCOTUS:
Does the Congress have the power to punish nonmembers for contempt?
SCOTUS held (as previously discussed the power isn’t enumerated in the Constitution, ergo it’s an “inherent” power) as further expounded by the SCOTUS Marshall Court. The conclusion reads in part:
Yes. Though the contempt power will not be found in the Constitution in plain terms, necessity compels it. The power is inherent in the structure and purpose of Congress. The absence of such power would lead to a total loss of power, exposing the Congress "to every indignity." (emphasis added)
Personally speaking one of my favorite passages in the SCOTUS Order & Opinion can be found on page 26, which reads in part:
The argument obviously leads to the total annihilation of the powerof the House of Representatives to guard itself fromcontempts, and leaves it exposed to every indignityand interruption that rudeness, caprice, or even conspiracy,. may meditate against it.
In 1934 the Senate issued a subpoena, as part of their Constitutional duty to conduct oversight. Specifically the Senate was investigating Contracts entered in to. William P. MacCracken, Jr. refused to testify, produce files and the case records show he also engaged in destruction of evidence. This Law Library Of Congress link, will take you to the 1935 Supreme Court ruling which relied heavily on both the self help doctrine and inherent contempt and proper procedures. And once again SCOTUS reiterated Congress’ Inherent Contempt Power:
The power of a House of Congress to punish a private citizen who obstructs the performance of its legislative duties, is not limited to the removal of an existing obstruction but continues after the obstruction has ceased or its removal has become impossible.
McCraken petitioned the SCOTUS essentially arguing that the Senate, arrest b the Sargent at Arms, bar trial (in the Senate Chamber) and subsequent imprisonment. In the end SCOTUS. Because McCraken presented a “Constitutional” question the SCOTUS “granted certiorari because of the importance of the question presented.”
SCOTUS held the following areas of “concern”:
The apprehensions expressed from time to time in congressional debates, in opposition to particular exercises of the contempt power, concerned, not the power to punish, as such, but the broad, undefined privileges which it was believed might find sanction in that power.8The ground for such fears has since been effectively removed by the decisions of this Court which hold that assertions of congressional privilege are subject to judicial review, Kilbourn v. Thompson, supra; and that the power to punish for contempt may not be extended to slanderous attacks which present no immediate obstruction to legislative processes, Marshall v. Gordon, supra.
The power of either House of Congress to punish for contempt was not impaired by the enactment in 1857 of the statute, Rev. St. § 102 (2 USCA § 192), making refusal to answer or to produce papers before either House, or one of its committees, a misdemeanor. Compare Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692. The statute was enacted, not because the power of the Houses to punish for a past contempt was doubted, but because imprisonment limited to the duration of the session was not considered sufficiently drastic a punishment for contumacious witnesses.
But it’s this particular subsection that gets to the heart of the matter and affirms Congress’ Inherent Contempt “Power” coupled with the “self help”
We grant that congress could not devest itself, or either of its houses, of the essential and inherent power to punish for contempt, in cases to which the power of either house properly extended; but because congress, by the act of 1857, sought to aid each of the houses in the discharge of its constitutional functions, it does not follow that any delegation of the power in each to punish for contempt was involved, and the statute is not open to objection on that account.' Punishment, purely as such, through contempt proceedings, legislative or judicial, is not precluded because punishment may also be inflicted for the same act as a statutory offense.
If you’re unaware of the Congressional Research Service (CRS) you should familiarize yourself with them. CRS is part of the Library Of Congress, they predominately work with members of Congress and they are (in my view) the preeminent legislative & legal authority.
May 2017 Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, link found here.
This link will take you to a query I ran of various CRS publications, legislative actions, as it relates to Contempt Of Congress
This link will take you to various legislative actions USC and/or CFSs, with respect to Contempt. Both Criminal and Civil
This link will take you to the 1998 Congressional Report concerning Contempt and Subpoenas. I little Hill Birdie sent me a whisper pointing me in the direction of this report.
See CRS resources below:
Contempt of Congress CRS Contents
- Congress's Power to Investigate
- Early History of Congressional Contempt
- Inherent Contempt
- Inherent Contempt Proceedings by Committees of Congress
- Statutory Criminal Contempt
- Civil Enforcement of Subpoenas
- Civil Enforcement in the Senate
- Civil Enforcement in the House of Representatives
- Special Investigatory Committees
- Committee Intervention in Subpoena-Related Litigation
- Enforcement of a Criminal or Inherent Contempt Resolution Against an Executive Branch Official
- The Burford Contempt
- The Bolten and Miers Contempt: Committee on the Judiciary v. Miers
- The Holder Contempt
- The Lerner Contempt
- Practical Limitations of Congressional Reliance on Criminal Contempt or the Civil Enforcement of Subpoenas
- Non-Constitutional Limitations
- Authorization and Jurisdiction
- Legislative Purpose
- Other Procedural Requirements
- Attorney-Client Privilege
- Work Product Immunity and Other Common Law Testimonial Privileges
- Constitutional Limitations
- First Amendment
- Fourth Amendment
- Fifth Amendment Privilege Against Self-Incrimination
- Fifth Amendment Due Process Rights
- Table A-1. Floor Votes on Contempt Resolutions in the House of Representatives, 1980-Present
- Table A-2. Other Committee Actions on Contempt Resolutions in the House of Representatives, 1980-Present
- Table A-3. Floor Votes on Civil Enforcement Resolutions in the Senate, 1980-Present
- Table A-4. Other Committee Actions on Contempt Resolutions in the Senate, 1980-Present
You can in fact sum this up in really simplistic terms, if by some misfortune you are served a Subpoena by either the House or Senate you should comply forthwith. Yet at every turn we bearing witness to a rise of Authoritarian like behavior from the Trump Administration. Otherwise you’ll end up the receipent of letters like this:
“...I am confident that the Committee could move forward with Contempt against you immediately...your defiance of the Committee’s subpoena was so flagrant...” I always endeavored to be as fair as possible in the pursuit of truth”— 🌶𝓢𝓹𝓲𝓬𝔂𝓕𝓲𝓵𝓮𝓼-𝓡𝓮𝓭𝓾𝔁🌶 (@SpicyFiIesredux) April 28, 2019
Scope NOT limited @RepCummings is a GLADIATOR pic.twitter.com/ixxHct2941
If reading hundreds of pages of both legislative and judicial filings isn’t your cup of tea (I won’t judge you) then you can watch last week’s Hardball Interview:
Although I should add that the probability of the House Sargent Of Arms executing an arrest warrant of various Executive Branch Employees isn’t exactly high but it does remain possible. My point is Trump et al are in fact engaging in a protracted and out right obstructive behavior. In some respects it’s almost as if Trump et al are double dog daring House Democrats to use their Inherent Contempt Power. The downside is it will surely set up yet another cage match. But on this issue the House Democrats actually have precedence on their side, whereas Trump only has rage and regret. However I can’t help but think this absolute Obstruction is an actual tactic of delay, distract and deflect.
The question remains is it really in Trump’s best interest to keep delaying and keep obstructing. Personally speaking it actually makes Trump look like a “mad king” type of bunker mentality. He is not a king and it’s arguable if he’s actually a competent President. Case in point when Trump is losing Fox News that just affirms my belief that he is acting from a position of absolute weakness. And it’s splendiferous, because when you lose Fox News you’re going to start losing your base, which is in fact shrinking. Yes I dislike the fact I’m linking to a Fox News segment but it’s extraordinary and it paints a very clear picture
I hope this entry is informative and it helps you understand the “process” and “Procedure”. And yes I get it. As in your frustration with how “slow” you might think the House Democrats are proceeding. Conversely I would rather they take the time. As in collect a robust file, while also educating the electorate. Both in terms of the substance, process and procedure.
Yet here’s the reality Trump knows what laws and rules are. I mean he knows the difference between right and wrong. He just chooses to do what benefits him and what’s most expedient at the time. Ergo he’s lashing out because he knows his in a position of weakness and I like to think Trump knows that his base are starting to crac. That they are are slowing asking decent questions about Trump:
his lack of morality
his lack of ethics
his lack of truthfulness
his lack of being a president for all Americans.
By any reasonable measure if Trump was not in office he would surely be facing a multi-count indictment. So when you see his tweets or off the rails stump speeches, understand that he knows. That we know he is untethered from reality, hence why he needs to lie and gas light. When in doubt ask yourself this rather simple question:
If Trump or his Administration have nothing to hide, then why are they suing, obstructing legitimate Congressional Investigations, usurping the constitutional power from a co equal branch of government?
Contempt of Congress...— 🌶𝓢𝓹𝓲𝓬𝔂𝓕𝓲𝓵𝓮𝓼-𝓡𝓮𝓭𝓾𝔁🌶 (@SpicyFiIesredux) April 28, 2019
With any hope you’ll have a broader understanding of the various flavors available to House Democrats https://t.co/IcI4RIgsiD
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