What is Contempt of Congress?

By Eric Revell, Countable News

What is contempt of Congress?

• Contempt is used by the House and Senate to respond to actions viewed as obstructing the legislative and oversight process by forcing compliance, punishing the subject of contempt (aka the contemnor), or removing the obstruction. Congressional contempt power can be exercised in three ways according to the Congressional Research Service:
• Inherent Contempt: This method draws on Congress’s constitutional authority to try and physically detain the contemnor until the individual complies with congressional demands. It is also functionally dormant, as it was last used in 1935 to detain an official at the Willard Hotel in D.C.
• Criminal Contempt: This allows Congress to punish non-compliance with a subpoena by certifying a contempt citation referral for the criminal prosecution of the contemnor by the DOJ, rather than serving as a mechanism for obtaining the subpoenaed material. The DOJ has discretion over whether it chooses to prosecute after receiving a criminal contempt referral.
• Civil Enforcement: Congress has the power to seek a civil judgment in federal court declaring that the contemnor is legally obligated to comply with the congressional subpoena.
• It’s possible to enforce congressional subpoenas through civil action, but it can take a long time to obtain a final, enforceable ruling due to the appeals process. There are also obstacles to congressional subpoena enforcement against executive branch officials through the use of criminal contempt or civil enforcement.
• In terms of criminal contempt, based on past practice the DOJ doesn’t prosecute contempt if executive privilege is invoked. That was the case for several contempt citations involving executive branch officials approved by the House and referred to the DOJ in recent decades:
• EPA Administrator Anne Gorsuch Burford (1982): Gorsuch was subpoenaed for documents related to the functioning of the Superfund program, which cleans and repairs environmental areas contaminated by toxic waste, during the Reagan administration.
• Former WH Counsel Harriet Miers and WH Chief of Staff Joshua Bolten (2008): Miers was subpoenaed for documents and testimony related to the George W. Bush White House’s involvement in requesting the resignations of U.S. attorneys, while Bolten was subpoenaed for similar records.
• Attorney General Eric Holder (2012): Holder was subpoenaed for records related to the Obama administration’s Operation Fast & Furious, under which the ATF allowed semi-automatic “assault” rifles to be sold to straw-buyers who transferred them to drug cartels. The weapons were used in numerous murders near the U.S.-Mexico border, including the 2010 killing of U.S. Border Patrol Agent Brian Terry.
• Attorney General William Barr and Commerce Secretary Wilbur Ross (2019): The Cabinet officials were held in contempt for failing to produce documents related to the decision to attempt to add a citizenship question to the 2020 Census that were the subject of congressional subpoenas. The Trump administration asserted executive privilege over the documents. The Supreme Court issued a decision that held a citizenship question could be added, but the Trump administration failed to provide a coherent rationale for it in the rulemaking process.
• Congressional leadership isn’t required to pursue civil enforcement of a subpoena even though a contempt resolution authorizes civil action, and the DOJ can decline to prosecute a criminal contempt referral even if executive privilege isn’t invoked. 
• When the House held former Internal Revenue Service Director Lois Lerner in contempt in 2014 for not complying with a subpoena related to an investigation of the IRS’s targeting of conservative groups during her tenure, it opted not to pursue civil enforcement and just provided the DOJ with a criminal referral. The Obama administration didn’t claim executive privilege, but Lerner invoked her Fifth Amendment right to not incriminate herself through compliance with the subpoena, and the DOJ ultimately declined to prosecute.
• It remains to be seen whether the DOJ will pursue prosecution for criminal contempt against Steve Bannon, a former strategist in the Trump White House who was held in contempt by the House in October 2021 for failing to comply with a subpoena for documents and testimony related to the January 6th attack on the Capitol. Bannon, who was not on the White House staff at the time of the January 6th attack, has claimed executive privilege 

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