The Problem: Rising Executive Branch Intransigence and Declining Congressional Oversight Effectiveness
The refusal of executive branch officials to comply with congressional subpoenas for documents and testimony has become commonplace. Indeed, recent experience suggests that congressional subpoenas of executive branch personnel are oftentimes meaningless and clearly not being enforced effectively in the face of determined obstruction. These declining congressional oversight, subpoena enforcement, and contempt enforcement capacities have been growing progressively worse over the past forty years. This situation is intolerable because Congress cannot perform its constitutional duties of oversight of the executive and judicial branches of government if it cannot obtain accurate information from them in timely fashion. Congress is the institution through which the people make their will known and attempt to control the national government. If Congress is prevented from conducting oversight effectively, the American people are therefore deprived of their right and ability to control their government.
The Solution: Revive the Congressional Inherent Contempt Power
Good Government Now (GGN) is recommending that the U.S. House of Representatives address the crisis in the declining effectiveness of congressional oversight of the executive branch that has been developing over the past four decades head on by adopting our proposed “Inherent Contempt Enforcement Rule.”
Inherent contempt enforcement is the centuries-old practice of the U.S. Congress and other parliamentary bodies of defending their institutional authority by holding trials to convict and sanction individuals who obstruct the legislative process.
Our proposed rule, developed by GGN Senior Fellow and congressional oversight expert Mort Rosenberg, would strengthen congressional subpoena and contempt enforcement by creating a process whereby the House would conduct trials of, convict, and directly sanction executive branch officials who obstruct the legislative information gathering process.
The procedure would rely on fines rather than arrest and detention as the principal sanctions on contemnors. It would employ a Select Committee appointed by the Speaker to perform investigative and preparatory work to reduce the substantial time consumed by floor trials that historically made the procedure cumbersome and contributed to its fall into disuse. The process would conclude with a summary trial on the floor of the House with separate votes for conviction or acquittal of contempt and imposition of sanctions in cases where the accused is found guilty.
Our proposal also includes a provision for direct congressional appointment of private attorneys to prosecute recalcitrant executive branch witnesses for criminal contempt in the event of their refusal to comply with the subpoena during the inherent contempt enforcement compliance period, a vitally necessary measure given the refusal of the Department of Justice to enforce the criminal contempt statute against federal officials claiming executive privilege upon instructions from the president.
Background and History of Inherent Contempt Enforcement
The U.S. Supreme Court has ruled repeatedly and unequivocally that the authority to arrest, conduct trials of, and directly punish contemnors is inherent in the legislative power of Congress and is an essential institutional self-protective mechanism.
Inherent contempt enforcement has been the most effective of the three methods available to Congress for defending its institutional prerogatives against contumacious behavior and ensuring timely compliance with its information demands. Congress employed it highly successfully and almost exclusively until 1935, even after enactment of the criminal contempt statute in 1857. From 1857-1934, at least 28 witnesses complied with congressional information demands after being threatened with or charged in inherent contempt actions and two executive branch officials were arrested pursuant to contempt citations.
Congress stopped employing inherent contempt after 1935 for three reasons: (a) the associated trials at the bar of either house consumed too much floor time, (b) the habeas corpus suits that invariably accompanied the arrests and detentions of alleged contemnors further delayed the process excessively, and (c) the arrest and incarceration of witnesses was perceived unseemly.
The U.S. Department of Justice Office of Legal Counsel declared inherent contempt and statutory criminal enforcement against executive branch officials unconstitutional in opinions issued in 1984 and 1986, despite strong case law, history, and congressional practice to the contrary. These arguments are based on misguided legal theory that erroneously concludes that inherent and criminal enforcement are unconstitutional, and represent a calculated effort by DOJ to undermine congressional oversight by denying Congress recourse to its strongest enforcement mechanisms and channeling it toward an inferior civil enforcement option incapable of adequately defending its institutional interests.
Aggressive DOJ opposition to inherent and statutory criminal enforcement, the circumstantial congressional drift away from the inherent contempt procedure, and a variety of other systemic factors have produced a crisis in the effectiveness of congressional oversight.
Summary of the GGN Inherent Contempt Enforcement Rule Proposal
1) Solution: A Revised Inherent Contempt Procedure. The modified inherent contempt procedure we propose addresses the crisis in oversight effectiveness and solves the problems associated with the traditional inherent contempt method with three changes:
a) Select Committees: Time consuming preparatory and investigative work is moved off the House floor and assigned to a Select Committee instead,
b) Summary Trials: Floor proceedings are limited to a summary trial that can completed quickly, and
c) Monetary Penalties Only: Punishments imposed on contemnors are restricted to monetary fines only to avoid triggering habeas corpus actions.
Key Process Features
1) Committee Report of Initial Finding – Following an appropriate period of investigation, negotiation and attempted accommodation, the committee prepares a report explaining why it believes the repudiation of its compliance order by the executive branch official constitutes contempt of Congress and related matters. The chair transmits this committee report to the Speaker along with the request to form the Select Committee.
2) Committee Chair Requests Speaker to Form Bipartisan Select Committee – Upon the failure of a senior responsible official to comply with a committee order to produce documents or testimony, the committee chair requests the Speaker to form a Select Committee of five members, three appointed by the Speaker and two by the Minority Leader, to assess whether the committee’s investigation and conclusion that executive branch non-compliance rises to the level of contempt of Congress.
3) Select Committee Completes Assessment and Preparatory Work – The Select Committee assesses the alleged contemptuous behavior to determine whether it rises to the level of a contempt of the House and a trial at the bar of the House is warranted. The Select Committee prepares a report of its findings for the Speaker. If the Committee finds that a trial is warranted, it must also prepare a detailed contempt resolution along with a recommendation for the monetary fine constituting appropriate punishment.
4) Select Committee Assessment Process
a) House General Counsel assists the Select Committee in conducting its assessment, which may include further investigation.
b) Witnesses have the right to private legal counsel, but may not be represented by government lawyers, even if they are government employees
c) All testimony of contemnor and witnesses taken in camera
d) No one other than Select Committee members and staff, House General Counsel staff, and witnesses and their legal representatives may attend the proceedings
5) Summary Floor Trial – The House will conduct a summary or expedited floor trial if the Select Committee recommends consideration of a resolution of contempt.
6) Procedures for Summary Floor Trial
a) Contempt Resolutions are Treated as Rule IX Questions Requiring Precedence – Any contempt resolution recommended by the Select Committee will be reported to the House by the Speaker and treated as a Rule IX question of privilege of the House requiring precedence over all other questions until resolved and promptly scheduled for floor consideration.
b) House General Counsel presents case for passage of the contempt resolution.
c) The alleged contemnor and counsel may present a defense.
d) Time may be allotted for questions by members from the floor.
e) House votes on passage of the contempt resolution after the time allotted for presentations, questions, and debate.
f) House holds a second vote on imposition of a fine if the contempt resolution passes.
7) Penalties and Enforcement
a ) $25,000 minimum initial fine, increased in $25,000 increments daily until the contempt is purged or the maximum penalty of $250,000 is reached after 10 days; amount of fine depends on timeliness of compliance.
b) House General Counsel is authorized to recover accrued penalties upon expiration of the 10-day compliance period.
c) No government funds may be used to pay any monetary fine imposed and no person, organization or entity is permitted to pay or reimburse contemnors for any monetary penalties incurred; such actions may be regarded as a contempt of Congress.
8) Effect of Noncompliance – Citation for Criminal Contempt and Direct Appointment of Private Attorney to Prosecute
a) Summary of Provision for Direct Appointment of Private Attorney to Prosecute Criminal Contempt – The contemnor may be cited for criminal contempt and prosecuted under the federal criminal contempt statute by a private attorney directly appointed by the House in the event of continuing noncompliance.
b) Jurisdictional Committee Report & Request for Further Legislative Penalties – Chair of complaining jurisdictional committee prepares a report for Select Committee at end of 10-day compliance period detailing degree of compliance by contemnor and whether it satisfies legislative needs of the committee. If committee deems compliance unsatisfactory, its report will include a request for imposition of further legislative penalties along with descriptions of its efforts to secure compliance and the obstructions it encountered.
c) Select Committee Report & Criminal Contempt Recommendation – The Select Committee convenes within three calendar days of receipt of committee report to consider whether the continued refusal to comply with House information demands warrants consideration of a resolution of criminal contempt of Congress by the House and to prepare a report of its findings for the Speaker. If the Select Committee recommends House consideration of a criminal contempt resolution is warranted, it must also prepare a detailed criminal contempt resolution along with a resolution authorizing the Speaker to appoint a private attorney to prosecute the criminal contempt.
d) Procedures for Criminal Contempt Resolution
i) Criminal Contempt Resolution Treated as Rule IX Question Requiring Precedence – Any criminal contempt resolution recommended by the Select Committee will be reported to the House by the Speaker and treated as a Rule IX question of privilege of the House requiring precedence over all other questions until resolved and promptly scheduled for floor consideration.
ii) House General Counsel presents case for passage of the contempt resolution.
iii) The alleged contemnor will be present and may be accompanied by counsel, either of whom may present a defense to the charge.
iv) Time may be allotted for questions by members from the floor.
v) House votes on passage of the contempt resolution after the time allotted for presentations, questions, and debate.
vi) House holds a second vote on direct appointment of a private attorney to prosecute the criminal contempt if the contempt resolution passes.
e) Criminal Prosecution Does Not Eliminate Monetary Penalties – Initiation of a criminal contempt of Congress prosecution is not intended to vitiate any previously imposed and uncollected monetary penalties incurred by the same contemnor.
9) Points of Order on Appropriations – The rule provides for points of order against the appropriations of any agency whose employee is found guilty of contempt of Congress as follows:
a) Reduction of the salary of the agency head by the amount of any fine imposed by Congress in an inherent contempt conviction of an agency employee
b) Reductions of appropriations for other offices, divisions or sections of the agency or other agencies as the committee chair may designate.
Benefits of the Proposed Revised Inherent Contempt Procedure
1) Revives and Revises Congress’ Most Powerful Contempt Enforcement Mechanism. Modernizes the historical inherent contempt process to make it usable and seemly by employing an investigative Select Committee to save floor time, conducting a summary floor trial, and replacing arrest and detention with monetary fines as the primary sanction imposed on contemnors.
2) Affirms Congress’ Absolute Authority to Rule on All Claims of Privilege. Affirms that Congress has absolute authority and discretion to rule in the first instance on all objections and claims of privilege asserted in response to its demands for information from the executive.
3) Repudiates Illegitimate Executive Branch Stratagems to Disempower Congressional Contempt Enforcement. Reasserts congressional power by rejecting unsound executive branch arguments that inherent enforcement is unconstitutional and effectively resists manipulative executive channeling of Congress toward inferior civil enforcement actions incapable of effectively defending its oversight interests in a timely manner.
4) Imposes Consequential Sanctions. Enables the House to swiftly impose consequential sanctions on contemptuous executive branch officials.
5) Leverage. Enables the House to restore leverage over obstructive or recalcitrant executive branch officials in oversight disputes by having recourse to powerful sanctions.
6) Speed. Enables the House to obtain information essential to its oversight responsibilities more quickly than other available remedies.
7) Independent Action. Enables the House to act independently without the assistance of other branches or the Senate to resolve oversight disputes.
8) Ease of Adoption and Execution. Adoption and execution of the new procedure requires only promulgation of a House rule and minimal need for judicial assistance.
9) Every Step of the Proposed Rule is Supported by Supreme Court and lower federal court precedent. The Supreme Court has sustained the constitutional validity and necessity of inherent contempt as a self-protective institutional mechanism at least four times between 1821 and 1935. A Supreme Court ruling in 1993 upheld the power of the Senate to establish its own rules for the conduct of an impeachment and approved the appointment of a special committee to make findings of fact and recommendations before the floor trial, which is analogous to the proposed Select Committee. The Supreme Court and appellate courts have approved of practices and processes Congress has adopted for oversight and investigative hearings that do not accord with the full panoply of procedural rights enjoyed by witnesses in adjudicatory proceedings. Appellate court rulings and historic congressional practice have established that acceptance of common law privileges and assertions of the presidential communications privilege rest in the initial and sole discretion of jurisdictional committees and may be contested only during the defense of statutory criminal contempt or inherent proceedings.
Murphy, William J. and Rosenberg, Morton. Summary of Proposed Inherent Contempt Rule. Washington, DC: Good Government Now, July 2018.
Murphy, William J. and Rosenberg, Morton. Why Congress Can Impose Fines for Contempt. Good Government Now Briefing Paper. Washington, DC. August 5, 2018.
Murphy, William J. and Rosenberg, Morton. Inherent Contempt Enforcement Proposal Information Sources. Washington, DC. (Annotated reference list with active links to informational materials on Good Government Now’s inherent contempt enforcement and direct congressional appointment of special prosecutor proposals as well as supporting court precedents, historical background materials, and policy analyses.)
Murphy, William J. Congress should invoke revised inherent contempt procedure in DOJ subpoena standoff. The Hill. September 5, 2018.
Good Government Now. Can a Revised Inherent Contempt Procedure Strengthen Enforcement of House Subpoenas to the Executive Branch? Panel Discussion Video. October 19, 2018. Washington, DC.
Rosenberg, Morton. When Congress Comes Calling: A Study on the Principles, Practices, and Pragmatics of Legislative Inquiry. Washington, DC: The Constitution Project, May 23, 2017. (See Chapter III, A. “Congress’s Power to Investigate, pp. 13-15; and Chapter III, B. “Enforcement of the Investigative Power,” pp. 23-27, especially Section 2 “The Inherent Contempt Power” and Section 3 “Statutory Criminal Contempt.”)
Garvey, Todd. Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure. Congressional Research Service Report RL34097, May 12, 2017. (See pp. 1-10 on “Congress’s Power to Investigate” and the “Early History of Contempt,” pp. 10-17 on “Inherent Contempt,” pp. 17-22 on “Statutory Criminal Contempt,” and pp. 34-54 on “Enforcement of a Criminal or Inherent Contempt Resolution Against an Executive Branch Official.”
Chafetz, Josh. “Contempt of Congress,” Chapter 5 in Congress’s Constitution: Legislative Authority and the Separation of Powers. 1st Edition. New Haven: Yale University Press, 2017. (Google Books)
Rosenberg, Morton. Reasserting Congress’ Investigative Authority. R Street Policy Study No. 103. Washington, DC: R Street Institute, July 2017.
Rosenberg, Morton. Why enacting H.R. 4010, the Congressional Subpoena Compliance and Enforcement Act of 2017, is a big mistake. Legislative Branch Capacity Working Group. R Street Institute and New America Foundation. Washington, DC. January 9, 2018.