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The Inherent Contempt Power of the US Congress appears the only remedy for dealing with William Barr and others in the Trump administration. Trump will spin it as a coup, but it’s Trump who is orchestrating a coup.

Excerpted from: “Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure” by Todd Garvey Legislative Attorney, May 12, 2017 Congressional Research Service 7-5700 http://www.crs.gov RL34097 See summary intro https://miningawareness.wordpress.com/2017/05/23/congresss-contempt-power-and-the-enforcement-of-congressional-subpoenas-law-history-practice-and-procedure/

“Congress has three formal methods by which it can combat non-compliance with a duly issued subpoena. Each of these methods invokes the authority of a separate branch of government. First, the long dormant inherent contempt power permits Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands. Second, the criminal contempt statute permits Congress to certify a contempt citation to the executive branch for the criminal prosecution of the contemnor. Finally, Congress may rely on the judicial branch to enforce a congressional subpoena…

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 or detained in the Capitol or perhaps elsewhere. 79 The purpose of the imprisonment or other sanction may be either punitive 80 or coercive. 81 Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least by the House, beyond the end of a session of the Congress) until he agrees to comply. One commentator has concluded that the procedure followed by the House in the contempt citation that was at issue in Anderson v. Dunn is typical of that employed in the inherent contempt cases.

These traditional methods may be explained by using as an illustration Anderson v. Dunn. … In 1818, a Member of the House of Representatives accused Anderson, a non-Member, of trying to bribe him. … The House adopted a resolution pursuant to which the Speaker ordered the Sergeant-at-Arms to arrest Anderson and bring him before the bar of the House (to answer the charge). When Anderson appeared, the Speaker informed him why he had been brought before the House and asked if he had any requests for assistance in answering the charge. Anderson stated his requests, and the House granted him counsel, compulsory process for defense witnesses, and a copy, of the accusatory letter. Anderson called his witnesses; the House heard and questioned them and him. It then passed a resolution finding him guilty of contempt and directing the Speaker to reprimand him and then to discharge him from custody. The pattern was thereby established of attachment by the Sergeant-at-Arms; appearance before the bar; provision for specification of charges, identification of the accuser, compulsory process, counsel, and a hearing; determination of guilt; imposition of penalty. 82

When a witness is cited for contempt under the inherent contempt process, prompt judicial review appears to be available by means of a petition for a writ of habeas corpus. 83 In such a habeas proceeding, the issues decided by the court might be limited to (a) whether the House or Senate acted in a manner within its jurisdiction, 84 and (b) whether the contempt proceedings complied with minimum due process standards. 85 While Congress would not have to afford a contemnor the whole panoply of procedural rights available to a defendant in criminal proceedings, notice and an opportunity to be heard would have to be granted. 86 Also, some of the requirements imposed by the courts under the statutory criminal contempt procedure (e.g., pertinency of the question asked to the committee’s investigation) might be mandated by the due process clause in the case of inherent contempt proceedings. 87

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. Drawing on the analogous authority that courts have to inherently impose fines for contemptuous behavior, 88 it appears possible to argue that Congress, in its exercise of a similar inherent function could impose fines as opposed to incarceration. Additional support for this argument appears to be contained in dicta from the 1821 Supreme Court decision in Anderson v. Dunn. The Court questioned the “extent of the punishing power which the deliberative assemblies of the Union may assume and exercise on the principle of self preservation” and responded with the following:

Analogy, and the nature of the case, furnish the answer—“the least possible power adequate to the end proposed;” which is the power of imprisonment. It may, at first view, and from the history of the practice of our legislative bodies, be thought to extend to other inflictions. But every other will be found to be mere commutation for confinement; since commitment alone is the alternative where the individual proves contumacious. 89

Finally, in Kilbourn v. Thompson, the Court suggested that in certain cases where the Congress had authority to investigate, it may compel testimony in the same manner and by use of the same means as a court of justice in like cases. Specifically, the Court noted that “[w]hether the power of punishment in either House by fine or imprisonment goes beyond this or not, we are sure that no person can be punished for contumacy as a witness before either House, unless his testimony is required in a matter into which that House has jurisdiction to inquire…. ” 90 While the language of these cases and the analogous power possessed by courts seem to suggest the possibility of levying a fine as punishment for contempt of Congress, we are not aware of, and could not locate, any precedent for Congress imposing a fine in the contempt context.

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.

There are also certain limitations on the inherent contempt process. Although the contemnor can be incarcerated until he agrees to comply with the subpoena, imprisonment may not extend beyond the end of the current session of Congress. 91 Moreover, inherent 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. 92 Because of these drawbacks, the inherent contempt process has not been used by either body since 1935. 93 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. Although generally the proceedings in inherent contempt cases appear to have been conducted at the bar of the House of Congress involved, 94 in at least a few instances proceedings were conducted initially or primarily before a committee, but with the final decision as to whether to hold the person in contempt being made by the full body. 95

Inherent Contempt Proceedings by Committees of Congress

As has been indicated, although the majority of the inherent contempt actions by both the House and the Senate were 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 1992 Supreme Court decision addressing the power of Congress to make its own rules for the conduct of impeachment trials, 96 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. As discussed above, in these cases the House appointed a Committee on Privileges to report a mode of procedure. The Committee reported the following resolution, which was adopted by the full House of Representatives:

Resolved, That the said Robert Randall and Charles Whitney be brought to the bar of the House and interrogated by the Speaker touching the information given against them, on written interrogatories, which with the answers thereto shall be entered into the minutes of the House. And that every question proposed by a Member be reduced to writing and a motion made that the same be put by the Speaker. That, after such interrogatories are answered, if the House deem it necessary to make any further inquiry on the subject, the same be conducted by a committee to be appointed for that purpose. 97

According to the Annals of Congress, the Committee’s language sparked a debate concerning the proper procedures to be used, including a discussion regarding whether the use of such a select committee was proper. 98 At least one Representative “was convinced that the select committee was alone competent to taking and arranging the evidence for the decision of the House.” 99 While others noted that “the investigation of facts is constantly performed by select committees. … [The committee’s] report is not to be final, it is to be submitted to the House for final decision.” 100 It was recommended that, “the subject should be remanded to a committee, which would save a good deal of time.” 101 Other Members, however, objected to the use of a select committee to hear…”

72 Id. at 196.

73 In Re Chapman, 166 U.S. 661 (1897).

74 Barry v. United States ex rel Cunningham, 279 U.S. 597 (1929).

75 McGrain v. Daugherty, 273 U.S. 135 (1927).

76 Id.

77 Id. at 177.

78 Id. at 177-178; see also ICC v. Brimson, 154 U.S. 447 (1894). It has been said that McGrain “very clearly removed the doubt [that had existed after Kilbourn v. Thompson] as to whether Congress could force testimony in aid of legislation.” Moreland, supra note 10, at 222. Although McGrain and Sinclair v. United States, 279 U.S. 263 (1929), involved inquiries into the activities of private individuals, there was a connection to property owned by the United States and, therefore, it could not be said that purely personal affairs were the subjects of the investigations.

79 Given Congress’s plenary power over the District of Columbia, the contemnor could potentially be detained or jailed in a D.C. Metropolitan Police Department facility. See U.S. CONST. art. I, §8 (“The Congress shall have Power…To exercise exclusive Legislation in all Cases whatsoever, over such District…as may…become the Seat of the (continued…)

…continued)

Government of the United States.”).

80 Jurney v. MacCracken, 294 U.S. 125, 147 (1935).

81 McGrain v. Daugherty, 273 U.S. at 161.

82 Thomas L. Shriner, Jr., Legislative Contempt and Due Process: The Groppi Cases, 46 IND. L. J. 480, 491 (1971) [hereinafter Shriner].

83 See Marshall v. Gordon, 243 U.S. 521 (1917); see also United States v. Fort, 443 F.2d 670, 676 (D.C. Cir. 1970); Theodore Sky, Judicial Review of Congressional Investigations: Is There an Alternative to Contempt, 31GEO. WASH. L. REV. 399, 400, n.3 (1962) [hereinafter Sky].

84 Jurney v. MacCracken, 294 U.S. 125, 147 (1935); see also Kilbourn v. Thompson, 103 U.S. 168, 196 (1880); Ex Parte Nugent, 18 F. 471 (D.D.C. 1848).

85 Groppi v. Leslie, 404 U.S. 496 (1972).

86 Id.

87 For a discussion of these statutory limitations on the contempt power see infra at notes 279-351 and accompanying text.

88 See, e.g., United States v. United Mine Workers, 330 U.S. 258 (1947) (upholding a $700,000 fine against a labor union as punishment for disobedience of a preliminary injunction preventing it from continuing a worker strike and approving the imposition of a $2.8 million fine if the union did not end the strike within five days).

89 Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 230-31 (1821) (emphasis added).

90 Kilbourn v. Thompson, 103 U.S. 168, 190 (1881) (emphasis added).

91 Watkins v. United States, 354 U.S. 178, 207, n.45 (1957); Anderson, 19 U.S. (6 Wheat.) at 231.

92 See S.Rept. 95-170, 95th Cong., 1st Sess., 97 (1977); see also Rex E. Lee, Executive Privilege, Congressional Subpoena Power, and Judicial Review: Three Branches, Three Powers, and Some Relationships, 1978 B.Y.U. L. REV. 231, 255 n. 71 (1978) [hereinafter Lee].

93 4 DESCHLER’S PRECEDENTS OF THE U.S. HOUSE OF REPRESENTATIVES, ch. 15, §17, 139 n.7 (1977) [hereinafter Deschler’s Precedents]; see also Lee, supra note 92, at 255.

94 See Beck, supra note 26, at 4; ERNEST J. EBERLING, CONGRESSIONAL INVESTIGATIONS 289 (1928) [hereinafter Eberling].

95 For example, in 1865, the House appointed a select committee to inquiry into an alleged breach of privilege committed by Mr. A.P. Field for assaulting a Member of the House. 72 CONG. GLOBE, 38th Cong., 2d Sess., 371 (1865). After taking testimony, the committee recommended, and the House adopted, a resolution directing the Speaker to reprimand Field at the bar of the House. Id. at 971, 974.

96 See United States v. Nixon, 506 U.S. 224 (1992).

97 See 2 Hinds’ Precedents, supra note 27, at §1599 (emphasis added).

98 See 5 ANNALS OF CONG. 188 (1792).

99 See id. (statement of Rep. Baldwin).

100 Id. at 189 (statement of Rep. W. Smith).

101 Id. at 190 (statement of Rep. W. Smith). ”

Read more of the 89 pages document: “Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure” Todd Garvey Legislative Attorney, May 12, 2017
Congressional Research Service 7-5700 http://www.crs.gov RL34097
See summary intro https://miningawareness.wordpress.com/2017/05/23/congresss-contempt-power-and-the-enforcement-of-congressional-subpoenas-law-history-practice-and-procedure/