[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
[[Page 450]]
to compel a witness to comply with the subpoena of a committee of the
Senate.
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
Generally
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
[[Page 451]]
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,
850.
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
[[Page 452]]
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).
[[Page 453]]
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.
1983).
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
cited
[[Page 454]]
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.