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McGahn Case Oral Arguments Fail to Consider Inherent Contempt Fines and Congressional Prosecution Options, Alarmism over Executive Branch Arrests Unjustified

E. Barrett Prettyman Federal Courthouse, Washington, DC

FOR IMMEDIATE RELEASE Media Contact: Bill Murphy • (610) 529-6494 (m)

Washington, DC – Advocacy group Good Government Now issued a statement today rejecting alarmist claims made during oral arguments in the McGahn case that arrests of executive branch officials would be the only subpoena enforcement option available to Congress if it loses the ability to file civil enforcement lawsuits in federal court.

GGN President Dr. William J. Murphy said, “Arresting executive branch officials is not the only option left if Congress loses the McGahn case and its ability to pursue civil enforcement lawsuits in the courts.  Congress could instead enforce its inherent contempt authority under the constitution through other methods including the imposition of heavy personal fines and direct criminal prosecutions by congressionally-appointed attorneys.”

“The Supreme Court has consistently recognized that the institutional legislative self-protective mechanisms of inherent contempt and criminal prosecution and their punitive consequences are indispensable, inviolable actions of the coordinate legislative branch, incapable of being abandoned by either house, and not subject to the presidential pardon power,” Murphy said. 

“The authority of Congress to impose fines and appoint private attorneys to prosecute criminal contempts are supported by strong Supreme Court and Appellate Court precedents affirming the equivalence of the legislative and judicial contempt powers as well as the validity of judicial appointments of private counsel to prosecute criminal contempts of court. Courts punish contempt of their own proceedings directly through fines or attorneys appointed to prosecute on the court’s behalf, and Congress could do the same. All this can be implemented by passage of a simple House or Senate resolution,” Murphy continued.

“Alarmist speculations about the dangers of armed confrontations between the legislative Sergeant-at-Arms and federal protective personnel in the context of attempted congressional inherent contempt arrests of executive branch officials are unproductive,” Murphy said. “This sensationalism distracts from the sober consideration of viable options like inherent contempt fines and direct congressional prosecutions. Using these methods, just as courts do, would restore legislative enforcement authority by re-establishing a credible threat of real and timely consequences for officials who defy House or Senate subpoenas.”

Murphy further noted that “Inherent and criminal contempt enforcement have produced superior results historically because they credibly impose personal punishment, including the possibility of fines and imprisonment. Regardless of which party has controlled the presidency or Congress, the legislative branch has unilaterally disarmed itself in conflicts with the executive branch by failing to use its inherent constitutional authorities.  Relying instead on civil enforcement allows the balance of powers to tip in favor of the other two branches.  Thus, it has proven an ineffective alternative because it fails to confront witnesses with a timely and credible threat of consequences for their defiance.”

“Congress cannot allow its enforcement powers to be paralyzed while the McGahn case is pending in the courts,” Murphy said.  Rather, the House should immediately adopt the inherent contempt fines proposal recommended by Good Government Now that would enable it to conduct trials of, convict, and directly sanction executive branch officials who defy congressional subpoenas with heavy personal fines ranging from $25,000 to $250,000.”

 GGN Senior Fellow Morton Rosenberg added that “Inherent contempt fines should be supplemented with a provision enabling the House to authorize the Speaker to appoint private attorneys to prosecute persistently recalcitrant executive branch officials for criminal contempt of Congress in the event the inherent contempt fines are insufficient to motivate their compliance with a subpoena.”

 Rosenberg also said, “The extent of inaccurate assertions presented by the Department of Justice (DOJ) during the McGahn oral arguments that have not been effectively challenged by the House, the Court, and the media is another troubling dimension of the proceedings.  Many of DOJ’s key claims are not consistent with a sound reading of judicial precedents or American historical practices.  DOJ’s contention that subpoena enforcement, including legislative subpoena enforcement, is an exclusively executive branch function, is contradicted by dozens of inherent contempt proceedings validated by the Supreme Court. The notion that there is no historical basis for congressional arrests of executive branch officials is likewise false and contradicted by two historical cases.” 

“Congress, the Courts, and the media have an obligation to challenge and correct these DOJ misrepresentations by asserting a true and accurate understanding of the constitutional and historical foundations of congressional contempt enforcement authority which includes the powers to impose fines, appoint prosecuting attorneys, arrest, detain, and incarcerate those who defy subpoenas,” Murphy concluded.

Bill Murphy is available for interviews and comment at (610) 529-6494 or

More information about Good Government Now’s subpoena enforcement proposals are available at Inherent Contempt Fines Rule or

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