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Subpoenas
Congressional rules empower all its standing committees with the authority to compel witnesses to produce testimony and documents for subjects under its jurisdiction. Committee rules may provide for the full Committee to issue a subpoena, or permit subcommittees or the Chairman (acting alone or with the ranking member) to issue subpoenas.
As announced in Wilkinson v. United States, 365 U.S. 399 (1961), the Congressional committee must meet three requirements for its subpoenas to be "legally sufficient." First, the committee investigation of the broad subject area must be authorized by its Chamber; second, the investigation must pursue "a valid legislative purpose" but does not need to involve legislation and does not need to specify the ultimate intent of Congress; and third, the specific inquiries must be pertinent to the subject matter area which have been authorized for investigation.
The Court held in Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975) that Congressional subpoenas are within the scope of the Speech and Debate clause which provides "an absolute bar to judicial interference" with such compulsory process. Under that ruling, Courts generally do not hear motions to quash Congressional subpoenas; even when executive branch officials refuse to comply, the Courts tend to rule that such matters are "political questions" unsuitable for judicial remedy.
Procedures
Following the refusal of a witness to produce documents or to testify, the Committee is entitled to report a resolution of contempt to its parent chamber. A Committee may also cite a person for contempt but not immediately report the resolution to the floor. In the case of subcommittees, they report the resolution of contempt to the full Committee, which then has the option of rejecting it, accepting it but not reporting it to the floor, or accepting it and reporting it to the floor of the chamber for action. On the floor of the House or the Senate, the reported resolution is considered privileged and, if the resolution of contempt is passed, the chamber has several options to enforce its mandate.
Inherent contempt
Under this process, the procedure for holding a person in contempt involves only the chamber concerned. Following a contempt citation, the person cited for contempt is arrested by the Sergeant-at-Arms for the House or Senate, brought to the floor of the chamber, held to answer charges by the presiding officer, and then subject to punishment that the House may dictate (usually imprisonment for punishment reasons, imprisonment for coercive effect, or release from the contempt citation.)
Concerned with the time-consuming nature of a contempt proceeding and the inability to extend punishment further than the session of the Congress concerned (under Supreme Court rulings), Congress created a statutory process in 1857. While Congress retains its "inherent contempt" authority and may exercise it at any time, this inherent contempt process was last used by the Senate in 1934, in a Senate investigation of airlines and the U.S. Postmaster. After a one-week trial on the Senate floor (presided by the Vice-President of the United States, acting as Senate President), a lawyer who had allowed clients to rip up subpoenaed documents, William P. MacCracken, a lawyer and former Assistant Secretary of Commerce for Aeronautics, was found guilty and sentenced to 10 days imprisonment. <1>
MacCracken had filed a petition of Habeas Corpus in federal courts to overturn his arrest, but after litigation, the US Supreme Court ruled that Congress had acted constitutionally, and denied the petition in the case Jurney v. MacCracken, 294 U.S. 125 (1935). <2><3>
Presidential pardons appear not to apply to civil contempt procedures like the above, since it is not an "offense against the United States" or an offense against "the dignity of public authority." <4>
Statutory proceedings
Following a contempt citation, the presiding officer of the chamber is instructed to refer the matter to the U.S. Attorney for the District of Columbia<5>; according to the law it is the "duty" of the U.S. Attorney to refer the matter to a grand jury for action.
The criminal offense of "contempt of Congress" sets the penalty at not less than one month nor more than twelve months in jail and a fine of not less than $100 nor more than $1,000. Those penalties are enforced upon conviction, even if the Congress which initiated the contempt citation has expired.
The statutory procedure has generally been used by Congress since 1935. While the law pronounces the duty of the U.S. Attorney is to impanel a grand jury for its action on the matter, some proponents of the controversial unitary executive theory believe that the Congress cannot properly compel the U.S. Attorney to take this action against the Executive Branch, as the U.S. Attorney is a member of the Executive Branch who ultimately reports to the President. To allow Congress to force the President to take action against a subordinate following his directives would be a a violation of the separation of powers and infringe on the power of the Executive branch. Others who believe in a more common interpretation of the US Constitution believe that, under Article II of the US Constitution, the principal duty of the President is to execute the law, and if the law specifies a duty on one of the President's subordinates, then the President must "take care" to see that the duty specified in the law is executed. To do otherwise would be not be faithfully executing the law, and thus be unlawful, unconstitutional, a violation of the separation of powers, and ultimately impeachable. The courts have been reluctant to decide this question, claiming it is a "political question" for resolution by the elected branches of government.
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