Democrats want to unearth the forgotten power of inherent contempt. Here’s why they shouldn’t.

Lindsay Tausch — Tuesday, July 2, 2019

In their escalating attempts to make Trump officials comply with congressional subpoenas, some House Democrats are reexamining a power of Congress not used since 1935. This power is called inherent contempt, and it is one of three strategies that Congress can use to enforce its subpoenas. Since 1935, Congress has relied on the executive and judicial branches when people refuse to comply with congressional subpoenas. This practice makes sense: if Congress cannot get the information it needs on its own authority, then it can rely on the authority of the other branches of government. However, there is another option. Instead of turning to another branch, Congress can legally imprison or fine individuals who refuse to comply. This is Congress’s power of inherent contempt.

Inherent contempt is Congress’s oldest tool for enforcing subpoenas. It was used before Congress passed a criminal contempt statute in 1857, allowing the U.S. Attorney––part of the executive branch––to bring contempt cases to a grand jury. Previously, contempt cases had been decided on the House or Senate floor. In 1978, Congress passed a civil enforcement statute, which allows Congress to sue noncompliant witnesses in federal court. 

Congress’s contempt powers exist because Congress needs the power to issue and enforce subpoenas in order to make informed legislative decisions. In two important cases from the 1920s, the Supreme Court established that Congress has far-reaching authority to obtain the information that it needs to legislate. Given this right, Congress may issue subpoenas to obtain testimony or documents that may be relevant to its decisions. If an individual refuses to comply with a congressional subpoena, he or she may be held in contempt of Congress.

It is a criminal offense to refuse to comply with a congressional subpoena, but, in practice, the ramifications are limited. In the past decade, Congress has only held a few executive branch officials in contempt, in part because contempt citations are difficult to enforce against members of the executive branch. Enforcement is difficult because the authority to prosecute a contempt citation automatically falls to the executive branch, which, as a practical matter, does not prosecute officials given executive privilege by the President. The alternative is for Congress to seek enforcement in federal court by filing a lawsuit. This can be effective, but it takes a long time. For instance, it took seven years for Congress to settle its contempt case against former Attorney General Eric Holder. 

Despite these challenges, the current Congress has been keen to issue contempt citations against Trump officials. Most recently, on June 11, the House passed a resolution to hold Attorney General William Barr and former White House Counsel Don McGahn in contempt of Congress. This resolution also authorized the House Judiciary Committee to seek court enforcement of its subpoenas for information from Barr and McGahn. Congress wants Barr to give them an unredacted copy of the Mueller Report, which details Roger Mueller’s investigation into Russia’s interference in the 2016 election and into the Trump campaign’s alleged involvement. (Barr gave Members of Congress access to the entire report with very limited redactions to protect intelligence gathering sources.) McGahn also has information relevant to Mueller’s investigation. 

Despite the eagerness of Democrats to extract new details of the Mueller investigation, it is difficult to see the legislative relevance of any information that Barr or McGahn might offer. With a Republican-controlled Senate that would be unlikely to vote Trump out of office, the threat of impeachment has lost its bite. Instead, House Speaker Nancy Pelosi has chosen a strategy that focuses on optics rather than legislation, primarily intended to inflict political harm on President Trump before the 2020 election. 

The Supreme Court has repeatedly affirmed the power of Congress to obtain information related to its legislative decisions. However, that power is not absolute, and it does not extend to information that is politically damaging but not legislatively relevant. Even the Democrats have admitted that their subpoenas against Barr and McGahn fall into this category.

Our modern system offers appropriate checks and balances against this type of congressional overreach. Legally, there are three ways that Congress can attempt to enforce its subpoenas against Barr and McGahn. First, it can use its power of criminal contempt, invoking the authority of the executive branch. However, the U.S. Attorney will almost certainly refuse to bring the case to a grand jury, given that Barr and McGahn have the protection of executive privilege. Alternatively, Congress can seek civil enforcement, invoking the authority of the judicial branch, as it did on June 11. However, it will likely take many years to receive a judgement, which is undesirable when the motivation is short-term political advantage. That’s why Democrats have taken a renewed interest in the third option––inherent contempt––which allows Congress absolute power in the enforcement of its subpoenas.

By detaining Barr and McGahn, or by fining them until they comply, Democrats could potentially get the information they want while avoiding the need to deal with another branch of government. However, reviving the draconian power of inherent contempt would establish a precedent that would harm Democrats as much as it would harm Republicans. If we unearth inherent contempt, we undermine one of the checks and balances that make American democracy so resilient. Congress should have access to the information it needs to make informed decisions. However, it should not have the power to take this information without limitation and without oversight––and to throw you in jail if you don’t comply.

Lindsay Tausch is an intern at the Conservative Partnership Institute