Congress Should Invoke Revised Inherent Contempt Procedure in DOJ Subpoena Standoff

Published September 18, 2018

The U.S. House should invoke a revised version of its historical inherent contempt enforcement power to address the refusal of Department of Justice (DOJ) officials to comply with congressional subpoenas seeking information such as occurred with the Clinton email and Russia investigations.  Inherent contempt refers to the centuries-old practice of the U.S. Congress and other parliamentary bodies of defending their institutional authority and punishing contempts by holding trials to convict and sanction individuals who obstruct the legislative process.

The controversy over how to deal with DOJ noncompliance intensified when eleven members led by Rep. Mark Meadows (R-N.C.) filed Articles of Impeachment against the deputy attorney general in the final days of the session prior to the August recess. Meadows was reportedly promised a criminal contempt vote as a compromise alternative in negotiations with House leaders opposed to impeachment, though both options remain on the table.

This unfinished business will surely re-emerge on the House’s agenda after it reconvenes this week. When it does, Congress would be better served by embracing a modified version of inherent contempt rather than continuing to pursue criminal contempt and impeachment, neither of which has any chance of succeeding.

Historically, inherent contempt has been the most effective enforcement method available to Congress. Both chambers employed it highly successfully from the founding of the republic until 1934, even after enactment of the criminal contempt statute in 1857. Indeed, from 1857-1934, at least 28 witnesses complied with congressional information demands after being threatened with or charged in inherent contempt proceedings and two executive branch officials were arrested pursuant to contempt citations.

The Supreme Court has also ruled repeatedly and unequivocally that the authority to arrest, conduct trials of, and directly punish contemnors is inherent in the legislative power of Congress and is an essential institutional self-protective mechanism.

Despite its effectiveness, Congress stopped employing inherent contempt after 1934 because the required trials on the floors of the House and Senate were time consuming, habeas corpus lawsuits challenging arrests and detention of alleged contemnors further slowed proceedings, and incarceration was perceived as unseemly.

But the drawbacks that caused inherent contempt to fall into disuse are easily remedied and Congress shouldn’t allow them to sideline its most historically most effective contempt enforcement tool. A modified inherent contempt process could solve the problems associated with the traditional procedure with three changes.

The proposal would avoid lengthy and inconvenient floor trials by moving time-consuming preparatory and investigative work off the floor to a bipartisan select committee of five members and limiting floor proceedings to summary trials that could be completed quickly. The problems of unseemliness and habeas corpus delays are solved by eliminating arrest and detention from the process and limiting sanctions to monetary fines ranging from $25,000 to $250,000 paid by contemnors personally.

Adopting this revised version of the traditional inherent contempt process would immediately enable the House to gain decisive leverage in oversight disputes with recalcitrant executive branch officials by swiftly and independently imposing consequential sanctions. The two alternatives the House has considered thus far, by contrast, offer no hope of compelling DOJ to produce the information sought in the outstanding subpoenas.

Holding department officials in contempt of Congress will be of no avail because DOJ will continue to refuse to enforce the criminal contempt statute as it has since 1984 when its Office of Legal Counsel (OLC) issued an opinion that use of the criminal contempt power against executive branch officials violates separation of powers and is therefore unconstitutional.

Nor is the impeachment threat is credible given Speaker Paul Ryan‘s oppositionlack of support from other House leaders, unlikelihood of a supportive House majority, and certainty that an impeachment resolution would be dead on arrival in the Senate, where Majority Leader McConnell has described it as “pretty far-fetched.”

To gain an appropriate, credible, and effective enforcement method in the DOJ subpoena faceoff and future oversight disputes, the House should employ a revised version of its inherent contempt power.

[Originally Published at The Hill]