[House Practice: A Guide to the Rules, Precedents and Procedures of the House]
[Chapter 17. Contempt]
[From the U.S. Government Publishing Office, www.gpo.gov]

                              HOUSE PRACTICE

  Sec. 1.  In General
  Sec. 2.  Statutory Contempt Procedure
  Sec. 3.  -- Duties of the Speaker and U.S. Attorney
  Sec. 4.  -- Defenses; Pertinence Requirement
  Sec. 5.  Purging Contempt
        Research References
          2 Hinds Sec. Sec. 1597-1640; 3 Hinds Sec. Sec. 1666-1724
          6 Cannon Sec. Sec. 332-334
          Deschler Ch 15 Sec. Sec. 17-22
          Manual Sec. Sec. 293-299
          2 USC Sec. Sec. 192, 194

  Sec. 1 . In General

      An individual who fails or refuses to comply with a House subpoena 
  may be cited for contempt of Congress. Eastland v. United States 
  Servicemen's Fund, 421 U.S. 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 (Anderson v. Dunn, 19 U.S. 204 
  (1821)) so far as necessary to preserve and exercise the legislative 
  authority expressly granted (Marshall v. Gordon, 243 U.S. 521 (1917)). 
  However, as a power of self-preservation, a means and not an end, the 
  power does not extend to infliction of punishment. Manual 
  Sec. Sec. 294-296.
      To supplement this inherent power, 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 statutory procedure is the one used in modern practice, but the 
  ``inherent power'' remains available. In one instance, the House 
  invoked both procedures against a witness. 3 Hinds Sec. 1672.
        In contrast, the Senate may invoke its civil contempt statute (2 
  USC Sec. 288d) to direct the Senate legal counsel to bring an action 
  in Federal court

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  to compel a witness to comply with the subpoena of a committee of the 
      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. 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, the respondent was 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 U.S. 204 (1821). 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 from executive session. 3 Hinds Sec. 1666. Such powers 
  had been exercised before the adoption of the Constitution by the 
  Continental Congress as well as by England's House of Lords and House 
  of Commons. Jurney v. MacCracken, 294 U.S. 125 (1935). Although the 
  use of such powers was supported by the Supreme Court in Jurney, 
  neither House has used them since 1935.

  Sec. 2 . Statutory Contempt Procedure


      An alternative statutory contempt procedure was enacted in 1857. 
  Under this statute the wrongful refusal to comply with a congressional 
  subpoena is made punishable by a fine of up to $1,000 and imprisonment 
  for up to one year. A committee may vote to seek a contempt citation 
  against a recalcitrant witness. This action is then reported to the 
  House. 2 USC Sec. 192. If a resolution to that end 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 the House adopted such a resolution 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 subpoena. This was the first occasion on 
  which the House cited a cabinet-level executive branch official for 
  contempt of Congress. Manual Sec. 299; H. Rept. 97-968. In the same 
  Congress, Secretary of the Interior James G. Watt was cited for 
  contempt for withholding from a com

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  mittee subpoenaed documents and for failure to answer its questions. 
  The contempt citation was reported to the House by the oversight and 
  investigations subcommittee through the full Committee on Energy and 
  Commerce. H. Rept. 97-898. An accommodation was reached on the 
  documents, and the House took no action on the report. Similarly, in 
  1998, a committee report recommended the adoption of a resolution 
  finding Attorney General Janet Reno in contempt of Congress for 
  failing to produce documents subpoenaed by the Committee. H. Rept. 
  105-728. 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 subpoena. H. Rept. 98-190. The House then adopted a 
  resolution certifying such refusal to the U.S. Attorney. Manual 
  Sec. 299.
      In 2008, the House adopted (by special order of business) a 
  resolution, reported by the Committee on the Judiciary, directing the 
  Speaker to certify to the United States Attorney the refusal of the 
  White House Chief of Staff to produce documents to a committee, and 
  the refusal of former White House Counsel to appear and testify and 
  produce documents to a subcommittee, each as directed by subpoena. 
  110-2, H. Res. 979, Feb. 14, 2008, p 2190; Manual Sec. 299.

                            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.D.C. 1940). A committee report relating to the refusal of a witness 
  to testify is privileged for consideration in the House if called up 
  by the chair or other authorized member of the reporting committee. 
  Manual Sec. 299. A report relating to the refusal of a witness to 
  produce certain documents as ordered is also privileged. Deschler Ch 
  15 Sec. 20.9. The report is presented and read. A resolution may then 
  be offered directing the Speaker to certify the refusal to a U.S. 
  Attorney. Id. Such a resolution may be offered from the floor as 
  privileged, because 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. Clause 4(a)(2)(C) of rule XIII; Manual Sec. Sec. 299, 
      A resolution with two ``resolved'' 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 (contempt proceedings against Ralph and Joseph Bernstein, 
  Manual Sec. 299); as is a resolution with one ``resolved'' clause 
  certifying contemptuous conduct of several

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  individuals. Manual Sec. 299; cf. Deschler-Brown Ch 30 Sec. 49.1. A 
  contempt resolution may be withdrawn as a matter of right before 
  action thereon. Manual Sec. 299.

  Sec. 3 . -- Duties of the Speaker and U.S. Attorney

      The controlling statute provides that when a 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 a 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 
  F.2d 198 (D.C. Cir. 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 decision, no contempt reports have been produced 
  following a sine die adjournment, so the authority of the Speaker has 
  not been used.

  Sec. 4 . -- Defenses; Pertinence Requirement

      The statute that penalizes the refusal to respond to a 
  congressional subpoena 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 that 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 Congress, it must be established that 
  the committee or subcommittee was duly authorized and that its 
  investigation was within the scope of delegated authority. United 
  States v. Seeger, 303 F.2d 478 (2nd Cir. 1962). A clear chain of 
  authority from the House to its committee is an essential element. 
  Gojack v. United States, 384 U.S. 702 (1966).
      The statutory requirement that a question be pertinent is an 
  essential factor in prosecuting the witness for contempt. Pertinence 
  will not be presumed. Bowers v. United States, 202 F.2d 447 (D.C. Cir. 
  1953). The right of a witness to refuse to answer a nonpertinent 
  question is not waived by mere lack of assertion. The committee has a 
  burden to explain to the witness that a question is pertinent and that 
  despite the witness's objection, the committee demands an answer. 
  Barenblatt v. United States, 252 F.2d 129 (D.C. Cir. 1958), aff'd, 360 
  U.S. 109 (1959); Davis v. United States, 269 F.2d 357 (6th Cir. 1959), 
  cert. denied, 361 U.S. 919 (1959).

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      In judicial contempt proceedings brought under the statute, 
  constitutional claims and other objections to House investigatory 
  procedures may be raised by way of defense. United States v. House of 
  Representatives, 556 F. Supp. 150 (D.D.C. 1983). The courts must 
  accord a defendant every right ``guaranteed to defendants in all other 
  criminal cases.'' Watkins v. United States, 354 U.S. 178 (1957). All 
  elements of the offense, including willfulness, must be proven beyond 
  a reasonable doubt. Flaxer v. United States, 358 U.S. 147 (1958). 
  However, 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, e.g., 
  Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975); 
  United States v. House of Representatives, 556 F. Supp. 150 (D.D.C. 
      During committee proceedings, where a report to the House is 
  contemplated, a witness's defense (including objections based on 
  relevance, attorney-client privilege, or executive privilege) may be 
  considered separately by the committee or may merge with a vote on 
  reporting to the House.
      To justify withholding subpoenaed 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 U.S. 683 (1974). Moreover, noncompliance 
  with a congressional subpoena by government officials may not be 
  justified on the ground that they were acting under the orders of a 
  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 subpoena has been permitted to 
  comply with its terms before the issuance of an indictment. 3 Hinds 
  Sec. Sec. 1666, 1686. However, once judicial proceedings to enforce 
  the subpoena have been initiated, the defendant cannot be purged 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 U.S. 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 U.S. Attorney to the end that contempt proceedings be 
  discontinued. Manual Sec. 299; Deschler Ch 15 Sec. 21. For example, in 
  the 98th Congress, after EPA Administrator Anne M. Gorsuch had been 

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  by a prior Congress for contempt for failure to produce certain 
  documents to a House subcommittee, the House adopted a resolution 
  certifying to the U.S. Attorney that an agreement giving the committee 
  access to those documents had been reached. Manual Sec. 299.
      Although witnesses cannot purge contempt after judicial 
  proceedings have begun, a court may suspend the sentence of witnesses 
  convicted of contempt and give them an opportunity to avoid punishment 
  by providing the testimony sought. Deschler Ch 15 Sec. 21.