[House Practice: A Guide to the Rules, Precedents and Procedures of the House]
[Contempt Power]
[From the U.S. Government Printing Office, www.gpo.gov]
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CONTEMPT POWER
Sec. 1. In General
Sec. 2. Statutory Contempt Procedure
Sec. 3. -- Duties of the Speaker and U.S. Attorney
Sec. 4. -- Defenses; Pertinency Requirement
Sec. 5. Purging Contempt
Research References
2 Hinds Secs. 1597-1640; 3 Hinds Secs. 1666-1724
6 Cannon Secs. 332-334
4 Deschler Ch 15 Secs. 17-22
Manual Secs. 293-299
2 USC Secs. 192, 194
Sec. 1 . In General
An individual who fails or refuses to comply with a House subpena
may be cited for contempt of Congress. Eastland v United States
Servicemen's Fund, 421 US 491 (1975). Although the Constitution does
not expressly grant Congress the power to punish witnesses for
contempt, that power has been deemed an inherent attribute of the
legislative authority of Congress. See Anderson v Dunn, 19 US 204
(1821).
To supplement this inherent power, the Congress in 1857 adopted an
alternative statutory contempt procedure (Sec. 2, infra). Thus, the
House may either (1) certify a recalcitrant witness to the appropriate
United States Attorney for possible indictment under this statute or
(2) exercise its inherent power to commit for contempt by detaining
the witness in the custody of the Sergeant at Arms. Manual Sec. 296.
The first procedure is the one utilized today, but the ``inherent
power'' still remains available. In one instance, the House invoked
not only its inherent contempt power, but also proceeded against a
witness under the alternative statutory contempt procedure. 3 Hinds
Sec. 1672.
Under the inherent contempt power of the House, the recalcitrant
witness may be arrested and brought to trial before the bar of the
House, with the offender facing possible incarceration. 3 Hinds
Sec. 1685. The first exercise of this power in the House occurred in
1812, when the House proceeded against a newspaper editor who declined
to identify his source of information that had been disclosed in
executive session. 3 Hinds Sec. 1666. Such powers had been exercised
prior to the adoption of the U.S. Constitution
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by the Continental Congress as well as by England's House of Lords and
House of Commons. Jurney v MacCracken, 294 US 125 (1935).
At the trial of the witness in the House, questions may be put to
the witness by the Speaker (2 Hinds Sec. 1602) or by a committee (2
Hinds Sec. 1617; 3 Hinds Sec. 1668). In one instance, the matter was
investigated by a committee and the respondent then brought to the bar
of the House, and a resolution was reported to the House for its vote.
2 Hinds Sec. 1628.
The inherent power of Congress to find a recalcitrant witness in
contempt has not been invoked by the House in recent years because of
the time-consuming nature of the trial and because the jurisdiction of
the House cannot extend beyond the end of a Congress. See Anderson v
Dunn, 19 US 204 (1821).
Sec. 2 . Statutory Contempt Procedure
Generally
An alternative statutory contempt procedure was adopted in 1857.
Under this statute, the refusal to comply with a congressional subpena
is made punishable by a fine of up to $1,000 and imprisonment for up
to one year. 2 USC Sec. 192. Pursuant to this statute, a committee may
vote to seek a contempt citation against the recalcitrant witness;
this action is then reported by resolution to the House. If the
resolution is adopted by the House, the matter is referred to a U.S.
Attorney who is to seek an indictment. See 2 USC Sec. 194; Manual
Sec. 299. In the 97th Congress, such a resolution was adopted
following the failure of an official of the executive branch (EPA
Administrator Anne M. Gorsuch) to submit executive branch documents to
a House subcommittee pursuant to a subpena. This was the first
occasion on which the House cited a chief executive branch official
for contempt of Congress. See H. Res. 632, 97-2, Dec. 16, 1982, pp
31746, 31754-56, 31776. In the same Congress, Secretary of the
Interior James G. Watt was cited for contempt for withholding
subpenaed documents and for failure to answer questions. The contempt
citation was reported to the House by the oversight and investigations
subcommittee of the Committee on Energy and Commerce. See H. Rept. No.
97-898. An accommodation was reached on the documents, and the House
took no action on the report. In 1983, a committee report recommended
the adoption of a resolution finding Rita M. LaVelle (former EPA
Assistant Administrator) in contempt of Congress for failing to appear
in response to a subpena. See H. Rept. No. 98-190, May 16, 1983. The
House then adopted a resolution certifying such refusal to the U.S.
Attorney. 98-1, May 18, 1983, p 12720.
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Floor Consideration
A contempt citation must be reported to the House pursuant to
formal action by the committee. Ex parte Frankfield, 32 F Supp 915
(D.C.D.C. 1940). A committee report relating to the refusal of a
witness to testify is privileged for consideration in the House (86-1,
Sept. 3, 1959, pp 17927-34), as is a report relating to the refusal of
a witness to produce certain documents as ordered. 86-2, Aug. 23,
1960, pp 17278 et seq. The report is presented and read. A resolution
may then be offered directing the Speaker to certify the refusal to a
U.S. Attorney. 86-2, Aug. 23, 1960, pp 17278-313. Such a resolution
may be offered from the floor as privileged, since the privileges of
the House are involved, and a committee report to accompany the
resolution may be presented to the House without regard to the three-
day availability requirement for other reports. 92-1, July 13, 1971,
pp 24720-23.
A resolution with two resolve clauses separately directing the
certification of the contemptuous conduct of two individuals is
subject to a demand for a division of the question as to each
individual. 99-2, Feb. 27, 1986, p 3061.
Sec. 3 . -- Duties of the Speaker and U.S. Attorney
The controlling statute provides that when the witness fails or
refuses to answer or produce the required documents, and such failure
is reported to the House--or to the Speaker when the House is not in
session--it ``shall be the duty'' of the Speaker to certify the facts
to the United States Attorney for presentation to the grand jury. 2
USC Sec. 194. Notwithstanding the language in the statute referring to
the ``duty'' of the Speaker, the court in Wilson v United States, 369
F2d 198 (1966) held that the Speaker erred in construing the statute
to prohibit any inquiry into the matter by him, and that his automatic
certification of a case to the U.S. Attorney during a period of sine
die adjournment was invalid. Since the incident that gave rise to this
judicial decision, no contempt reports have been filed following a
sine die adjournment so the authority of the Speaker has not been
utilized.
Sec. 4 . -- Defenses; Pertinency Requirement
The statute which penalizes the refusal to answer in response to a
congressional subpena provides that the question must be ``pertinent
to the question under inquiry.'' 2 USC Sec. 192. That is, the answers
requested must (1) relate to a legislative purpose which Congress may
constitutionally entertain, and (2) fall within the grant of authority
actually made by Congress to the committee. Deschler Ch 15 Sec. 6. In
a prosecution for contempt of Con-
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gress it must be established that the committee or subcommittee was
duly authorized and that its investigation was within the scope of
delegated authority. US v Seeger, C.A.N.Y. 303 F2d 478 (1962). A clear
chain of authority from the House to its committee is an essential
element of the offense. Gojack v US, 384 US 702 (1966).
The statutory requirement that a committee question be pertinent
is an essential factor in prosecuting the witness for contempt. The
right of a witness to refuse to answer a question that is not
pertinent is not a personal privilege that can be waived if not
asserted. Pertinency will not be presumed. Bowers v United States, 202
F2d 447 (D.C. Cir. 1953). The committee has a burden to explain to the
witness that a question is pertinent and that despite the witness'
objection, the committee demands an answer. Barenblatt v United
States, 252 F2d 129 (D.C. Cir. 1958), aff'd, 360 US 109 (1959); Davis
v United States, 269 F2d 357 (6th Cir.), cert. denied, 361 US 919
(1959).
In contempt proceedings brought under the statute, constitutional
claims and other objections to House investigatory procedures may be
raised by way of defense. US v House of Representatives, 556 F Supp
150 (1983). The courts must accord the defendant every right
``guaranteed to defendants in all other criminal cases.'' Watkins v
United States, 354 US 178 (1957). All elements of the offense,
including willfulness, must be proven beyond a reasonable doubt.
Flaxer v United States, 358 US 147 (1958). But the courts have been
extremely reluctant to interfere with the statutory scheme by
considering cases brought by recalcitrant witnesses seeking
declaratory or injunctive relief. See, for example, Eastland v United
States Servicemen's Fund, 421 US 491 (1975); US v House of
Representatives, 556 F Supp 150 (1983).
To justify withholding subpenaed information, a witness sometimes
contends that the President has claimed executive privilege with
respect thereto or has directed the witness not to disclose the
information. However, the Supreme Court has rejected the claim that
the President has an absolute, unreviewable executive privilege. See
United States v Nixon, 418 US 683 (1974). Moreover, noncompliance with
a congressional subpena by a government official may not be justified
on the ground that he was acting under the orders of his superior. See
United States v Tobin, 195 F Supp 588 (D.D.C. 1961).
Sec. 5 . Purging Contempt
A witness in violation of a House subpena has been permitted to
purge himself by compliance with its terms prior to the issuance of an
indictment.
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3 Hinds Secs. 1666, 1686. However, once judicial proceedings to
enforce the subpena have been initiated, the defendant cannot purge
himself of contempt merely by producing the documents or testimony
sought. See United States v Brewster, 154 F Supp 126 (D.D.C. 1957),
cert. denied, 358 US 842 (1958). At this stage, the House itself must
consider and vote on whether to permit a discontinuance. The committee
that sought the contempt citation submits a report to the House
indicating that substantial compliance on the part of the witness has
been accomplished; the House then adopts a resolution certifying the
facts to the United States Attorney to the end that contempt
proceedings be discontinued. Manual Sec. 299. For example, in the 98th
Congress, after EPA Administrator Anne Gorsuch had been cited in the
prior Congress for contempt for failure to produce certain documents
for a House subcommittee, the House adopted a resolution certifying to
the U.S. Attorney that agreement had been reached between the
committee and the executive branch giving the committee access to
those documents. 98-1, Aug. 3, 1983, p 22698.
It should be pointed out that while a witness cannot by himself
purge his contempt after judicial proceedings have begun, a court may
suspend the sentence of a witness convicted of contempt and give him
an opportunity to avoid punishment by giving testimony before a
committee whose questions he had refused to answer. Deschler Ch 15
Sec. 21.