We should probably get the obligatory bad jokes out of the way right up front. As in: “Contempt of Congress: It’s not just a crime, it’s a national attitude!” Or, “Contempt of Congress? Who ISN’T guilty of that?”
Bada-bum. Thank you, I’m here every week.
But seriously folks – the crime of contempt of Congress has been in the news again recently in connection with the dust-up between the U.S. House of Representatives and former Internal Revenue Service official Lois Lerner. The House voted to hold Lerner in contempt in 2014 after she took the Fifth at a hearing investigating an IRS scandal involving alleged targeting of conservative organizations seeking tax-exempt status.
In a different dispute in 2012, the House voted to find Attorney General Eric Holder in contempt for asserting Executive privilege and declining to provide documents related to a botched ATF gun smuggling investigation called Operation Fast and Furious. That citation represented the first time that a sitting Cabinet official had been held in contempt of Congress. Over the years the use and threatened use of this contempt power have led to some high-level political showdowns between Congresses of both parties and Executive branch officials.
The statute that governs contempt of Congress has an interesting history and raises some intriguing questions. It seems to require the local U.S. Attorney to bring before a grand jury any contempt citation that Congress sends to him or her, but that’s not the way the law has operated. Holder was not prosecuted by his own Department of Justice, of course, and the U.S. Attorney for the District of Columbia recently declined to prosecute Lerner.
The truth is, when it comes to the contempt statute there’s little Congress can do to enforce it if the Executive branch declines to prosecute. Votes to hold Executive branch officials in contempt have become largely about political theater rather than actual criminal prosecutions. But if Congress wanted to really get serious about enforcing its contempt power, it may not be quite as powerless as it first appears.
The Lois Lerner Case
Lois G. Lerner is the former Director of the Exempt Organizations division at the Internal Revenue Service. In 2013 the House Committee on Oversight and Government Reform, chaired by Congressman Darrell E. Issa, was investigating allegations that the IRS had acted improperly and with political motives to delay the approval of tax-exempt status applications of certain organizations. In particular, there were allegations that the IRS was screening for groups with “Tea Party,” “Patriot,” or other words in their names that might indicate an affiliation with conservative causes, and singling out those groups for increased scrutiny.
Ms. Lerner was invited to testify at a Committee hearing on May 22, 2013. When her counsel informed the Committee that she would refuse to answer questions based on her Fifth Amendment right not to incriminate herself, Chairman Issa issued a subpoena compelling her to appear. At the hearing, Ms. Lerner made a brief opening statement in which she denied having done anything wrong. She then said she would like to answer the Committee’s questions but that on the advice of her counsel she had decided to assert her Fifth Amendment privilege not to testify.
The Committee later determined that, in its view, Ms. Lerner had waived her Fifth Amendment privilege by making her opening statement. She was brought back before the Committee on March 5, 2014 and informed of the Committee’s ruling, but she continued to assert her Fifth Amendment rights. The full House of Representatives subsequently voted to hold Ms. Lerner in contempt of Congress for refusing to testify. On May 7, 2014, Speaker John Boehner referred the contempt citation to the U.S. Attorney for the District of Columbia.
The Contempt of Congress Statutes
The contempt of Congress statute that applied in the Lerner case, 2 U.S.C. § 192, provides in part:
Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House . . . willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.
A companion statute, 2 U.S.C. § 194, provides that if a witness has been found in contempt and that finding is duly reported to the Speaker of the House or President of the Senate, “it shall be the duty” of that leader to certify the matter to the United States attorney, “whose duty it shall be to bring the matter before the grand jury for its action.” (emphasis mine)
The controversy surrounding this statute has centered on its apparent mandate that the U.S. attorney bring the matter before a grand jury. The language of the statute highlighted above appears to leave the U.S. attorney no choice in the matter.
At a July 17, 2014 hearing before the Economic Growth, Job Creation, and Regulatory Affairs Subcommittee of the House Oversight and Government Reform Committee, Congressman Issa focused on this language when questioning Deputy Attorney General James Cole about the referral of the Lerner contempt citation and why the U.S. Attorney had not yet acted:
REP. ISSA: [The statute] didn’t say [the U.S. Attorney] can review it and look at it and think about it. It says — we’ve already made our decision. He’s been held in — she’s been held in contempt. It’s a question of when “shall” applies to bringing the case.
MR. COLE: Well “shall” doesn’t say he shall bring a case. That’s not there. The prosecutor retains discretion about whether or not a case should be brought.
REP. ISSA: Let me read this verbatim to you, because apparently only verbatim matters here. “To the appropriate United States attorney” — U.S. attorney in the district — “whose duty it shall be to bring the matter before the grand jury for its action” — shall bring it before the grand jury. There’s no discretion there, is there?
MR. COLE: I believe that the Office of Legal Counsel, when Ted Olson was in that position, rendered an opinion that said there is discretion, in fact.
On March 31, 2015, Ronald C. Machen Jr., the U.S. Attorney for the District of Columbia, wrote to Speaker Boehner to inform him that the U.S. Attorney’s Office would not be bringing charges against Ms. Lerner. Machen said his office had concluded that Ms. Lerner had not waived her Fifth Amendment rights and therefore had a valid privilege not to testify and an absolute defense to any charge of contempt. He also reported that his office would not be presenting the matter to a grand jury, citing the “Justice Department’s longstanding interpretation of Section 194 as preserving the exercise of prosecutorial discretion in the Executive Branch.”
The Anne Gorsuch Case
The Justice Department interpretation referred to by Messrs. Cole and Machen was issued in 1984 as a result of a dispute that arose early in the first Reagan administration. In 1982 the Democratically-controlled House was investigating whether the Reagan administration was properly administering the Superfund Act, which provided for federal cleanup of hazardous waste sites. As part of that investigation, a subcommittee of the House subpoenaed a wide range of Superfund documents from the Environmental Protection Agency.
The Reagan administration took the position that a number of the requested documents were shielded by executive privilege, and President Reagan instructed the administrator of the EPA, Anne Gorsuch, to withhold the documents. The House voted to cite Gorsuch for contempt, and Speaker Tip O’Neill referred the contempt citation to the U.S. Attorney for the District of Columbia.
The Reagan administration then filed a lawsuit seeking a ruling that its invocation of executive privilege was lawful. Ultimately the two sides negotiated a resolution concerning the production of the documents, and the House voted to withdraw the contempt citation. The U.S. Attorney, who had kept the matter on hold during the pendency of the lawsuit, then presented all of the information (including the withdrawal of the contempt citation) to a grand jury, which not surprisingly voted not to indict Gorsuch.
The incident led to an opinion letter from the Department of Justice’s Office of Legal Counsel, which at the time was headed by well-known conservative attorney Ted Olson. OLC is basically the Department of Justice’s brain trust, tasked with analyzing complex legal issues and providing advice to the Attorney General and Executive Branch agencies. After a thorough discussion of the facts and legal standards, the opinion concluded that Section 194 must be interpreted to allow the U.S. Attorney to retain the discretion to decide whether and how to prosecute a contempt case, despite the language of the statute providing that the U.S. Attorney “shall” present the case to the grand jury. Any other interpretation, the opinion concluded, would raise serious separation of powers concerns.
Separation of Powers and Contempt of Congress
As the OLC opinion pointed out, the duty of the Executive branch, spelled out in Article II of the Constitution, is to ensure that the laws are faithfully executed. Congress passes the laws, but the Executive branch enforces them. When it comes to criminal laws, that responsibility has always included the concept of prosecutorial discretion, deciding whether and how to prosecute a particular case. Congress does not have the power to direct the Executive to prosecute a particular individual, just as it cannot pass a Bill of Attainder, a law singling out a person or group and punishing them without a trial.
What’s more, simply as a practical matter, Congress could not really force a U.S. Attorney present a case to a grand jury or pursue a prosecution. Any such attempted mandate would be easy to evade, even while complying with the technical terms of the statute. For example, consider the language of the current statute that the U.S. Attorney “shall” present the matter to a grand jury. If Congress voted a contempt resolution and the U.S. Attorney concluded prosecution was not appropriate, the prosecutor could present the case to the grand jury — but urge them not to indict. If the grand jury voted to indict anyway, the prosecutor could refuse to sign the indictment, rendering it invalid. And even if the case were indicted, the prosecutor could move to dismiss it. So despite Chairman Issa’s protestations, the idea that Congress could remove discretion from the hands of the prosecutor and essentially mandate an indictment and prosecution makes little sense, either practically or constitutionally.
Congress is free to send its contempt citations to the Executive, but has no real recourse if the U.S. Attorney decides that prosecution is not appropriate. At least when it comes to disputes with senior Executive branch officials, for Congress to hold a witness in contempt under Section 192 is usually more an act of politics than a serious attempt to result in criminal charges. But Congress does have other options.
Congress’s Inherent Contempt Power
The contempt of Congress statute is not Congress’s only tool when it comes to contempt. Since the early 1800s, the Supreme Court has recognized that Congress has its own inherent contempt power – the power to hold witnesses in contempt itself and even to lock them up. Although not specifically provided for in the Constitution, the Court has found that this inherent contempt power is essential to Congress’s ability to investigate and legislate effectively.
When the inherent contempt power is invoked, the House or Senate directs the Sergeant-at-Arms to bring the individual before the bar of Congress to be tried. (Trials in Congress are not unheard of, of course; it wasn’t that long ago the Senate held the impeachment trial of President Clinton.) If found guilty of contempt, the witness may be incarcerated until he or she complies with the order in question or until the expiration of the current session of Congress.
The witness would have certain due process rights such as the right to counsel, to be advised of the nature of the charges, and to confront witnesses and compel them to appear. The witness could also resort to the courts, for example by seeking a writ of habeas corpus if wrongfully detained. If the dispute were over something like executive privilege, you’d expect the Executive branch to seek judicial intervention at the outset to head off the proceeding — but even then, at least Congress would get a judicial ruling on the privilege question, rather than being forced to rely simply on the Executive’s own interpretation.
According to a detailed study of Congress’s contempt power by the Congressional Research Service, this inherent contempt power has long been dormant. Congress has not sought to use it since 1935, perhaps because it is too unwieldy and time-consuming or is politically unpalatable. From time to time, partisans on one side or another argue that Congress should dust off this power and start arresting witnesses for contempt on its own rather than relying on the statutory process of a referral to the U.S. Attorney.
There are even periodic rumors that there is a jail cell in the basement of the Capitol building, although apparently this is not the case. The U.S. Capitol police, however, do have holding cells nearby that presumably could be put to use. (Apparently the last time the inherent contempt power was used to detain a witness, during the Hoover administration, he was held not in jail but at the Willard Hotel in D..C., which actually doesn’t sound that bad…).
Not in the basement of the Capitol
In some ways the inherent contempt power would better further the goals of Congress seeking to investigate a particular issue. The witness detained to coerce compliance with a subpoena may ultimately turn over documents or testify in order to purge themselves of contempt and be released. A witness prosecuted for contempt by the U.S. Attorney, on the other hand, may end up with a criminal charge but that still does not get Congress the information it originally sought. The inherent contempt power of Congress, like that of a court, may help it to coerce a recalcitrant witness to comply with its demands.
On Capitol Hill, they sometimes refer to abolishing the filibuster as the “nuclear option” when it comes to breaking Senate gridlock. Perhaps bringing back the inherent contempt proceeding should be considered the nuclear option when it comes to contempt of Congress. In the current partisan atmosphere in Washington, the prospect of Congressional committees trying witnesses for contempt and locking them up is a little bit scary. But it is a well-established power that may rear its head again someday.
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