If most Americans think of “contempt of Congress” as a foreign concept, they’re right. Our Founding Fathers imported it from the Mother Country long before independence. In Britain, “Disrespect for Parliament. ”
In the United States, every colonial assembly and parliament used the contempt power to compel testimony and documents, and to lock up villains. The power of contempt was long seen as a necessary tool to ensure that legislative bodies could function unimpeded and to encourage cooperation.
The contempt power is not enshrined in the Constitution or in the rules of the House or Senate because it is an inherent power: each House may try contempt cases and impose penalties in its own courts. Historically, defendants were detained by parliamentary officers while such trials were ongoing.
However, because such internal trials would be time-consuming and expensive, Parliament enacted the first contempt statute in 1857.2 U.S.C. 192) is a law that allows contempt of Congress to be tried in federal court. It makes contempt a misdemeanor punishable by a fine of up to $1,000 and imprisonment of one to twelve months. If either House approves a committee report that charges an unwilling witness with contempt, the Speaker or President pro tempore of the Senate can file a contempt finding with the U.S. Attorney for possible prosecution.
The issue of contempt of Congress has become especially prominent in the past month. Steve Bannon, a close aide to former President Donald Trump, was ordered last Thursday to report to prison by July 1. He was convicted of contempt of Congress and sentenced to four months in prison for refusing to provide testimony or documents related to his involvement in the January 6, 2021, riots. His appeal was rejected by a three-judge appeals panel.
Trump’s former trade representative, Peter Navarro, is already serving a four-month sentence for the same offense. Navarro is reportedly the first person to be convicted of contempt. Since the Cold War.
Last September, House Speaker Kevin McCarthy (R-Calif.) authorized three House committees, the Judiciary, Oversight, and Ways and Means, to conduct a preliminary investigation into whether President Joe Biden should be impeached for alleged political corruption, abuse of power, and obstruction of justice. On May 16, the Judiciary and Oversight committees voted to authorize a contempt report against Attorney General Merrick Garland for failing to comply with subpoenas seeking audio tapes of interviews with Special Counsel Robert Hur regarding the possession of classified documents found in multiple locations after President Joe Biden left office as Vice President.
Garland responded to the criticism of his department last week during a House Judiciary Committee oversight hearing of his office, declaring that the attacks on his department would not affect his department’s decision-making. He added that while he considered the contempt actions a “serious matter,” he would not jeopardize prosecutors’ and investigators’ ability to do their jobs. “I will not be threatened,” he concluded. Garland had already turned over the transcripts of the interviews, but invoked executive privilege on behalf of President Biden over the tapes.
Yesterday, the House narrowly adopted the special rules for holding Garland in contempt by a vote of 208-207 and debated them for the allotted hour. The Speaker postponed the final confirmation vote until later in the day. The final vote was taken and the Garland contempt resolution and report was passed by a vote of 216-207.
The House has previously found two attorneys general guilty of contempt of Congress — Eric Holder, under President Barack Obama, and William Barr, under President Donald Trump. Neither case has gone to trial.
According to legal precedent, the first executive branch official to be convicted of contempt of Congress was Environmental Protection Agency Administrator Anne GorsuchIn 1982, she refused to provide documents to a House Subcommittee on Public Works investigation into allegations of political bias regarding the Hazardous Waste Cleanup Fund.
Gorsuch resigned in January 1983. The House reached a settlement with EPA officials in early 1983 to access the documents requested in the subpoena, then voted to notify federal prosecutors that the matter had been resolved.
Steve Bannon defended himself in court on the grounds that he received incorrect legal advice. His lawyer resigned.He knew he might be called as a witness. When news of his imprisonment broke last week, Bannon boasted: “I’m going to jail.No prison or jail can be built to silence meBut the House subpoena apparently prompted him to turn on his mute button, even though the committee would have preferred that he speak.
Bannon could appeal his conviction to the Supreme Court, where one of the justices who would hear his case is Neil Gorsuch, the son of former EPA Administrator Anne Gorsuch, who herself faced a contempt trial when her son was just 15.
Don Wolfensberger is a 28-year veteran of congressional staff, having served as chief of staff to the House Rules Committee in 1995. His books include Congress and the People: A Test of Deliberative Democracy (2000) and Changing Congressional Culture: From Fair Play to Power (2018). Opinions expressed herein are Mr. Wolfensberger’s own.
