CRS Report on Congressional Contempt Power
Via Marty Lederman and scotusblog, the Congressional Research Service has just issued a comprehensive report on the Congress' contempt power. Of especial interest to today's controversies are the discussions of Congress' power to investigate abuse and fraud and the inherent contempt power. On investigations of abuse and fraud, such as the US attorney firings, the report states:
Congress’s power “to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes.” The Court did not limit the power of congressional inquiry to cases of “wrongdoing.” It emphasized, however, that Congress’s investigative power is at its peak when the subject is alleged waste, fraud, abuse, or maladministration within a government department. The investigative power, the Court stated, “comprehends probes into departments of the Federal Government to expose corruption, inefficiency, or waste.” “[T]he first Congresses,” held “inquiries dealing with suspected corruption or mismanagement by government officials” and subsequently, in a series of decisions, “[t]he Court recognized the danger to effective and honest conduct of the Government if the legislative power to probe corruption in the Executive Branch were unduly hampered.” Accordingly, the Court now clearly recognizes “the power of the Congress to inquire into and publicize corruption, maladministration, or inefficiencies in the agencies of Government.”
(Emphasis supplied.) In the US attorneys firings scandal, the Congress' investigative power is at its zenith while the President's claim of executive privilege is at its ebb as it does not involve a question of national security. It does not even inolve communications with the President. Isn't it obvious why White House counsel Fred Fielding wants no part of a court adjudication of this dispute? Because he is sure to lose. More.
On inherent contempt:
Congress’s inherent contempt power is not specifically granted by the Constitution, but is considered necessary to investigate and legislate effectively. The validity of the inherent contempt power was upheld in the early Supreme Court decision in Anderson v. Dunn and reiterated in McGrain v. Daugherty. 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 in the Capitol jail. The purpose of the imprisonment or other sanction may be either punitive74 or coercive.75 Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period. . . .
. . . Although many of the inherent contempt precedents have involved incarceration of the contemnor, there may be an argument for the imposition of monetary fines as an alternative. Such a fine would potentially have the advantage of avoiding a court proceeding on habeas corpus grounds, as the contemnor would never be jailed or detained.
. . . In comparison with the other types of contempt proceedings, inherent contempt has the distinction of not requiring the cooperation or assistance of either the executive or judicial branches. The House or Senate can, on its own, conduct summary proceedings and cite the offender for contempt. Furthermore, although the contemnor can seek judicial review by means of a petition for a writ of habeas corpus, the scope of such review may be relatively limited, compared to the plenary review accorded by the courts in cases of conviction under the criminal contempt statute.
. . . [I]nherent contempt has been described as “unseemly,” cumbersome, time-consuming, and relatively ineffective, especially for a modern Congress with a heavy legislative workload that would be interrupted by a trial at the bar.86 . . . Proceedings under the inherent contempt power might be facilitated, however, if the initial fact-finding and examination of witnesses were to be held before a special committee – which could be directed to submit findings and recommendations to the full body – with only the final decision as to guilt being made by the full House or Senate. . . .
Inherent Contempt Proceedings By Committees of Congress
As has been indicated, although the majority of the inherent contempts by both the House and the Senate was conducted via trial at the bar of the full body, there is historical evidence to support the notion that this is not the exclusive procedure by which such proceeding can occur. This history, when combined with a 1993 Supreme Court decision addressing the power of Congress to make its own rules for the conduct of impeachment trials,90 strongly suggests that the inherent contempt process can be supported and facilitated by the conduct of evidentiary proceedings and the development of recommendations at the committee level.Actually, the consideration of the use of committees to develop the more intricate details of an inquiry into charges of contempt of Congress date back to the very first inherent contempt proceedings of Messrs. Randall and Whitney in 1795. . . .
(Emphasis supplied.) There is much much more on the entire subject but it is interesting that inherent contempt proceedings can be handled at committee level,making them much more practical than one would think if the entire House had to be involved. Also interesting is the power to impose fines both as a coercive technique as well as a punishment. Would Harriet Meirs and Josh Bolten want to be on the hook for a large sum of money? This is intrguing in light of the potential reticence of some members of Congress to place them in jail.
A very interesting report that we should look at very closely.
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