The
Congressional Oversight Manual offers a decent overview of the posers of each chamber of Congress to bring and enforce contempt citations. I think the following snippet should be of interest to the DU community. (The entire document offers some interesting reading.)
C. Enforcement of the Investigative Power
1. The Contempt Power.
While the threat or actual issuance of a subpoena normally provides sufficient leverage to ensure compliance, it is through the contempt power, or its threat, that Congress may act with ultimate force in response to actions that obstruct the legislative process in order to punish the contemnor and/or to remove the obstruction. The Supreme Court early recognized the power as an inherent attribute of Congress’s legislative authority, reasoning that if it did not possess this power, it “would be exposed to every indignity and interruption that rudeness, caprice or even conspiracy may mediate against it.”
There are three different kinds of contempt proceedings. Both the House and Senate may cite a witness for contempt under their inherent contempt power or under a statutory criminal contempt procedure. The Senate also has a third option, enforcement by means of a statutory civil contempt procedure.
(a) Inherent Contempt
Under the inherent contempt power, the individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned. The purpose of the imprisonment or other sanction may be either punitive or coercive. Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least in the case of the House, beyond the adjournment of a session of the Congress) until he agrees to comply. The inherent contempt power has been recognized by the Supreme Court as inextricably related to Congress’s constitutionally-based power to investigate. Between 1795 and 1934 the House and Senate utilized the inherent contempt power over 85 times, in most instances to obtain (successfully) testimony and/or documents. The inherent contempt power has not been exercised by either House in over 70 years. This appears to be because it has been considered too cumbersome and time-consuming to hold contempt trials at the bar of the offended chamber. Moreover, some have argued that the procedure is ineffective because punishment can not extend beyond Congress’s adjournment date.
(b) Statutory Criminal Contempt
Congress recognized the problem raised by its inability to punish a contemnor beyond the adjournment of a congressional session. In 1857, Congress enacted a statutory criminal contempt procedure as an alternative to the inherent contempt procedure that, with minor amendments, is codified today at 2 U.S.C. §§192 and 194. A person who has been subpoenaed to testify or produce documents before the House or Senate or a committee and who fails to do so, or who appears but refuses to respond to questions, is guilty of a misdemeanor, punishable by a fine of up to $100,000 and imprisonment for up to one year. A contempt citation must be approved by the subcommittee, the full committee, and the full House or Senate (or by the presiding officer if Congress is not in session). After a contempt has been certified by the President of the Senate or the Speaker of the House, it is the “duty” of the U.S. Attorney “to bring the matter before the grand jury for its action.”
The criminal contempt procedure was rarely used until the twentieth century, but since 1935 it has been essentially the exclusive vehicle for punishment of contemptuous conduct. Prior to Watergate, no executive branch official had ever been the target of a criminal contempt proceeding. Since 1975, however, 10 cabinetlevel or senior executive officials have been cited for contempt for failure to produce subpoenaed documents by either a subcommittee, a full committee, or by a House. In each instance there was substantial or full compliance with the document demands before the initiation of criminal proceedings. However, following the vote of contempt of EPA Administrator Anne Gorsuch Burford, but before the contempt citation was forwarded to the United States Attorney for grand jury action, the Department of Justice raised the question whether Congress could compel the U.S. Attorney to submit the citation for grand jury consideration. The documents in question were turned over to Congress before the issue was litigated in court. The question of the duty of the U.S. Attorney under section 192 to enforce contempt of Congress citations remains unresolved and has left some uncertainty as to the efficacy of the use of criminal contempt proceedings against executive branch officials.
(c) Civil Contempt
As an alternative to both the inherent contempt power of each house and criminal contempt, a civil contempt procedure is available in the Senate. Upon application of the Senate, the federal district court issues an order to a person refusing, or threatening to refuse, to comply with a Senate subpoena. If the individual still refuses to comply, he may be tried by the court in summary proceedings for contempt of court, with sanctions imposed to coerce compliance. Civil contempt can be more expeditious than a criminal proceeding, and it also provides an element of flexibility, allowing the subpoenaed party to test legal defenses in court without necessarily risking a criminal prosecution. Civil contempt is not authorized for use against executive branch officials refusing to comply with a subpoena except in certain limited circumstances. Since 1979, the Senate has authorized the Office of Senate Legal Counsel to seek civil enforcement of a document subpoena at least 6 times, the last in 1995. None have been against executive branch officials.
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