If most Americans consider “contempt of Congress” a foreign concept, they’d be right. Our Founders imported it from the Mother Country long before our independence. In Great Britain it’s called, “contempt of Parliament.”
In the U.S. all the colonial assemblies and national congresses utilized the contempt power to compel testimony and documents, and lock-up miscreants. The contempt power has long been seen as a necessary means for a legislative body to do its work without disruption and to encourage cooperation.
The contempt power is not mentioned in the Constitution or in House or Senate rules. That’s because it’s an inherent power: Either house can try contempt cases at the bars of their respective chambers and impose punishment. Historically, while such trials were underway, defendants were held in custody by the sergeant-at-arms.
However, because such internal trials involved considerable time and expense, Congress enacted the first contempt statute in 1857 (2 U.S.C. 192), authorizing contempt cases to be tried in federal courts. The statute makes contempt of Congress a misdemeanor, punishable by a fine of up to $1,000 and imprisonment of between one and twelve months. If either House approves a report from a committee charging a reluctant witness with contempt, the Speaker, or president pro tempore of the Senate, certifies the contempt to a U.S. attorney for possible prosecution.
The issue of contempt of Congress has become especially salient over the last month. Former President Donald Trump acolyte, Steve Bannon, was ordered last Thursday to report to prison by July 1. He was convicted on contempt of Congress charges for refusing to testify or turn over documents relating to his involvement in the turbulent events of Jan. 6, 2021. He was sentenced to four months in prison. His appeal was rejected by a three-judge appeals court panel.
Trump’s former trade representative Peter Navarro is already serving the same four-month sentence for the same crime. According to news accounts, Navarro is the first person incarcerated for a contempt conviction since the Cold War.
Last September, House Speaker Kevin McCarthy (R-Calif.) delegated three House committees, Judiciary, Oversight and Ways and Means, to conduct a preliminary inquiry into whether President Joe Biden should be impeached for alleged political corruption, abuse of power and obstruction of justice. Both the Judiciary and Oversight committees voted on May 16 to approve contempt reports against Attorney General Merrick Garland for failure to comply with subpoenas for the audio tapes of interviews by Special Counsel Robert Hur with President Joe Biden regarding his possession of classified documents found at multiple locations after he left office as vice president.
Garland responded to criticisms of his department last week at a House Judiciary Committee oversight hearing of his department, declaring that attacks on his department would not influence its decision making. He added while he views contempt “as a serious matter,” he would not jeopardize the ability of the department’s prosecutors and agents to do their jobs. “I will not be intimidated,” he concluded. Garland invoked executive privilege over the tapes on behalf of President Biden, though he had already turned over the transcripts of the interviews.
Yesterday, the House narrowly adopted the special rule for the contempt citations, 208-207, and then debated them for the one-hour allotted. The chair postponed a final approval vote until later in the day. When the final vote was cast, the Garland contempt resolutions and reports were adopted, 216-207.
Two other attorneys general have previously been found guilty by the House for contempt of Congress: Eric Holder, under President Barack Obama, and William Barr under President Donald Trump. Neither case went to trial.
According to the precedents, the first executive branch official ever found guilty of contempt of Congress was Environmental Protection Agency Administrator Anne Gorsuch. In 1982 she refused to turn over documents to a House Public Works subcommittee investigation into alleged political favoritism involving the hazardous waste cleanup fund.
Gorsuch resigned in January 1983. The House came to agreement with EPA officials on access to the subpoenaed documents in early 1983 and subsequently voted to notify the U.S. attorney that the matter had been resolved.
Steve Bannon based his defense at trial in part on grounds he received bad legal advice. Consequently, his attorney stepped down, knowing he could be called as a witness. Last week, upon news of his prison date, Bannon boasted, “There’s not a prison built or a jail built that will ever shut me up.” However, a House committee subpoena apparently did cause him to activate his own mute button. The committee would have preferred he’d talked.
Bannon may still appeal his conviction to the Supreme Court. One of the justices who would hear his case is Neil Gorsuch. Yes, he is the son of former EPA Administrator Anne Gorsuch, who had her own tangle with contempt problems when her son was just 15.
Don Wolfensberger is a 28-year congressional staff veteran, culminating as the chief of staff of the House Rules Committee in 1995. He is author of “Congress and the People: Deliberative Democracy on Trial” (2000), and, “Changing Cultures in Congress: From Fair Play to Power Plays” (2018). The views expressed are solely his own.