# Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure

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## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** May 12, 2017
- **Citation:** RL34097

## Text

Congress’s Contempt Power and the
Enforcement of Congressional Subpoenas:
Law, History, Practice, and Procedure
-name redactedLegislative Attorney
Updated May 12, 2017

Congressional Research Service
7-....
www.crs.gov
RL34097

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas

Summary
Congress’s contempt power is the means by which Congress responds to certain acts that in its
view obstruct the legislative process. Contempt may be used either to coerce compliance, to
punish the contemnor, and/or to remove the obstruction. Although arguably any action that
directly obstructs the effort of Congress to exercise its constitutional powers may constitute a
contempt, in recent times the contempt power has most often been employed in response to noncompliance with a duly issued congressional subpoena—whether in the form of a refusal to
appear before a committee for purposes of providing testimony, or a refusal to produce requested
documents.
Congress has three formal methods by which it can combat non-compliance with a duly issued
subpoena. Each of these methods invokes the authority of a separate branch of government. First,
the long dormant inherent contempt power permits Congress to rely on its own constitutional
authority to detain and imprison a contemnor until the individual complies with congressional
demands. Second, the criminal contempt statute permits Congress to certify a contempt citation to
the executive branch for the criminal prosecution of the contemnor. Finally, Congress may rely on
the judicial branch to enforce a congressional subpoena. Under this procedure, Congress may
seek a civil judgment from a federal court declaring that the individual in question is legally
obligated to comply with the congressional subpoena.
A number of obstacles face Congress in any attempt to enforce a subpoena issued against an
executive branch official. Although the courts have reaffirmed Congress’s constitutional authority
to issue and enforce subpoenas, efforts to punish an executive branch official for non-compliance
with a subpoena through criminal contempt will likely prove unavailing in many, if not most,
circumstances. Where the official refuses to disclose information pursuant to the President’s
decision that such information is protected under executive privilege, past practice suggests that
the Department of Justice (DOJ) will not pursue a prosecution for criminal contempt. In addition,
although it appears that Congress may be able to enforce its own subpoenas through a declaratory
civil action, relying on this mechanism to enforce a subpoena directed at an executive official
may prove an inadequate means of protecting congressional prerogatives due to the time required
to achieve a final, enforceable ruling in the case. Although subject to practical limitations,
Congress retains the ability to exercise its own constitutionally based authorities to enforce a
subpoena through inherent contempt.
This report examines the source of the contempt power, reviews the historical development of the
early case law, outlines the statutory and common law basis for Congress’s contempt power, and
analyzes the procedures associated with inherent contempt, criminal contempt, and the civil
enforcement of subpoenas. The report also includes a detailed discussion of two recent
information access disputes that led to the approval of contempt citations in the House against
then-White House Chief of Staff Joshua Bolten and former White House Counsel Harriet Miers,
as well as Attorney General Eric Holder. Finally, the report discusses both non-constitutional and
constitutionally based limitations on the contempt power.

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Contents
Introduction ..................................................................................................................................... 1
Congress’s Power to Investigate ..................................................................................................... 2
Early History of Congressional Contempt ...................................................................................... 4
Inherent Contempt ......................................................................................................................... 10
Inherent Contempt Proceedings by Committees of Congress ................................................. 13
Statutory Criminal Contempt ........................................................................................................ 17
Civil Enforcement of Subpoenas ................................................................................................... 22
Civil Enforcement in the Senate ............................................................................................. 23
Civil Enforcement in the House of Representatives ............................................................... 26
Special Investigatory Committees .................................................................................... 30
Committee Intervention in Subpoena-Related Litigation ................................................. 31
Enforcement of a Criminal or Inherent Contempt Resolution Against an
Executive Branch Official .......................................................................................................... 34
The Burford Contempt ............................................................................................................ 35
The Bolten and Miers Contempt: Committee on the Judiciary v. Miers ................................. 39
The Holder Contempt .............................................................................................................. 44
The Lerner Contempt .............................................................................................................. 51
Practical Limitations of Congressional Reliance on Criminal Contempt or the Civil
Enforcement of Subpoenas .................................................................................................. 53
Non-Constitutional Limitations ..................................................................................................... 55
Authorization and Jurisdiction ................................................................................................ 55
Legislative Purpose ................................................................................................................. 56
Pertinency................................................................................................................................ 58
Willfulness .............................................................................................................................. 59
Other Procedural Requirements .............................................................................................. 60
Attorney-Client Privilege ........................................................................................................ 60
Work Product Immunity and Other Common Law Testimonial Privileges ............................ 63
Constitutional Limitations ............................................................................................................. 64
First Amendment ..................................................................................................................... 64
Fourth Amendment.................................................................................................................. 67
Fifth Amendment Privilege Against Self-Incrimination ......................................................... 69
Fifth Amendment Due Process Rights .................................................................................... 73

Tables
Table A-1. Floor Votes on Contempt Resolutions in the House of Representatives, 1980Present ........................................................................................................................................ 74
Table A-2. Other Committee Actions on Contempt Resolutions in the
House of Representatives, 1980-Present .................................................................................... 77
Table A-3. Floor Votes on Civil Enforcement Resolutions in the Senate, 1980-Present ............... 82
Table A-4. Other Committee Actions on Contempt Resolutions in the Senate,
1980-Present ............................................................................................................................... 84

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Appendixes
Appendix. Congressional Contempt Resolutions, 1980-Present ................................................... 74

Contacts
Author Contact Information .......................................................................................................... 85

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Introduction
Congress’s contempt power is the means by which Congress responds to certain acts that in its
view obstruct the legislative process. Contempt may be used either to coerce compliance, to
punish the contemnor, and/or to remove the obstruction.1 Although any action that directly
obstructs the effort of Congress to exercise its constitutional powers may arguably constitute a
contempt,2 in recent decades the contempt power has most often been employed in response to
the refusal of a witness to comply with a congressional subpoena—whether in the form of a
refusal to provide testimony, or a refusal to produce requested documents.3
Congress has three formal methods by which it can combat non-compliance with a duly issued
subpoena.4 Each of these methods invokes the authority of a separate branch of government.
First, the long dormant inherent contempt power permits Congress to rely on its own
constitutional authority to detain and imprison a contemnor until the individual complies with
congressional demands.5 Because the contemnor is generally released once the terms of the
subpoena are met, inherent contempt serves the purposes of encouraging compliance with a
congressional directive. Second, the criminal contempt statute6 permits Congress to certify a
contempt citation to the executive branch for the criminal prosecution of the contemnor.7
Criminal contempt serves as punishment for non-compliance with a congressional subpoena, but
does not necessarily encourage subsequent acquiescence. Once convicted, the contemnor is not
excused from criminal liability if he later chooses to comply with the subpoena. Finally, Congress
may rely on the judicial branch to enforce a congressional subpoena.8 Under this procedure,
Congress may seek a civil judgment from a federal court declaring that the individual in question
is legally obligated to comply with the congressional subpoena. If the court finds that the party is
legally obligated to comply, continued non-compliance may result in the party being held in
contempt of court. Where the target of the subpoena is an executive branch official, civil

1 See generally RONALD L. GOLDFARB, THE CONTEMPT POWER (2d ed., Anchor Books 1971).
2 Compare Jurney v. MacCracken, 294 U.S. 125 (destruction of documentary evidence which had been subpoenaed by

a committee of Congress can constitute contempt) with Marshall v. Gordon, 243 U.S. 521 (1917) (publication by U.S.
Attorney of letter critical of Congress could not constitute contempt because it did not directly obstruct the legislative
process). The Jurney decision also upheld the use of the inherent contempt power to punish a past contempt, even
where removal of the obstruction to the legislative process was no longer possible. See Jurney, 294 U.S. at 147-48, 150.
3 However, in two cases, defendants entered pleas of nolo contendere to the statutory offense of contempt, a
misdemeanor, rather than stand trial for perjury, a felony. United States v. Helms, Cr. No. 77-650 (D.D.C. 1977);
United States v. Kleindienst, Cr. No. 74-256 (D.D.C. 1974); see also Prosecution of Contempt of Congress, Hearing
before the Subcommittee on Administrative Law and Governmental Relations of the House Judiciary Committee on
H.R. 2684 and H.R. 3456, 98th Cong., 1st Sess., 29 (1983) (prepared statement of Stanley Brand, former Counsel to the
Clerk of the House). It should also be noted that a witness who refuses to testify before a committee, or who provides a
committee with false or misleading testimony, can potentially be prosecuted under other criminal provisions, including
18 U.S.C. §1001 (false statements), 18 U.S.C. §1621 (perjury), and 18 U.S.C. §1505 (obstruction of committee
proceedings). A detailed discussion of those offenses, however, is beyond the scope of this report. See generally, JAMES
HAMILTON, THE POWER TO PROBE: A STUDY OF CONGRESSIONAL INVESTIGATIONS, 78 (1976) [hereinafter Hamilton].
4 With respect to subpoenas issued against the executive branch, Congress may utilize other powers, including the
imposition of funding restrictions, to coerce compliance.
5 See “Inherent Contempt” infra.
6 2 U.S.C. §§192, 194.
7 See “Statutory Criminal Contempt” infra.
8 See “Civil Enforcement of Subpoenas” infra.

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enforcement may be the only practical means by which Congress can effectively ensure
compliance with its own subpoena.9
This report examines the source of the contempt power; reviews the historical development of the
early case law; discusses noteworthy contempt proceedings; outlines the statutory, common law,
and constitutional limitations on the contempt power; and analyzes the procedures associated with
inherent contempt, criminal contempt, and the civil enforcement of congressional subpoenas.

Congress’s Power to Investigate
The power of Congress to punish for contempt is inextricably related to the power of Congress to
investigate.10 Generally speaking, Congress’s authority to investigate and obtain information,
including but not limited to confidential information, is extremely broad. While there is no
express provision of the Constitution or specific statute authorizing the conduct of congressional
oversight or investigations, the Supreme Court has firmly established that such power is essential
to the legislative function as to be implied from the general vesting of legislative powers in
Congress.11 The broad legislative authority to seek and enforce informational demands was
unequivocally established in two Supreme Court rulings arising out of the 1920’s Teapot Dome
scandal.
In McGrain v. Daugherty,12 which arose out of the exercise of the Senate’s inherent contempt
power, the Supreme Court described the power of inquiry, with the accompanying process to
enforce it, as “an essential and appropriate auxiliary to the legislative function.” The Court
explained:
A legislative body cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect or change; and where
the legislative body does not itself possess the requisite information—which not
infrequently is true—recourse must be had to others who possess it. Experience has taught
that mere requests for such information often are unavailing, and also that information
which is volunteered is not always accurate or complete; so some means of compulsion are
essential to obtain that which is needed. All this was true before and when the Constitution
was framed and adopted. In that period the power of inquiry—with enforcing process—
was regarded and employed as a necessary and appropriate attribute of the power to
legislate—indeed, was treated as inhering in it. Thus there is ample warrant for thinking,
as we do, that the constitutional provisions which commit the legislative function to the
two houses are intended to include this attribute to the end that the function may be
effectively exercised.13

9 See “Enforcement of a Criminal or Inherent Contempt Resolution Against an Executive Branch Official” infra.
10 See generally Allen B. Moreland, Congressional Investigations and Private Persons, 40 SO. CAL. L. REV. 189 (1967)

[hereinafter Moreland].
11 See, e.g., Nixon v. Administrator of General Services, 433 U.S. 435 (1977); Eastland v. United States Servicemen’s
Fund, 421 U.S. 491 (1975); Barenblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States, 354 U.S. 178
(1957); McGrain v. Daugherty, 273 U.S. 135 (1927); Committee on the Judiciary v. Miers, 558 F. Supp. 2d 53, 84
(D.D.C. July 31, 2008) (“In short, there can be no question that Congress has a right—derived from its Article I
legislative function—to issue and enforce subpoenas, and a corresponding right to the information that is the subject of
such subpoenas. Several Supreme Court decisions have confirmed that fact.”).
12 273 U.S. 135, 174-75 (1927).
13 Id.

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In Sinclair v. United States,14 a different witness at the congressional hearings refused to provide
answers, and was prosecuted for contempt of Congress. The witness had noted that a lawsuit had
been commenced between the government and the Mammoth Oil Company, and declared, “I shall
reserve any evidence I may be able to give for those courts ... and shall respectfully decline to
answer any questions propounded by your committee.”15 The Supreme Court upheld the witness’s
conviction for contempt of Congress. The Court considered and rejected in unequivocal terms the
witness’s contention that the pendency of lawsuits provided an excuse for withholding
information. Neither the laws directing that such lawsuits be instituted, nor the lawsuits
themselves, “operated to divest the Senate, or the committee, of power further to investigate the
actual administration of the land laws.”16 The Court further explained that “[i]t may be conceded
that Congress is without authority to compel disclosure for the purpose of aiding the prosecution
of pending suits; but the authority of that body, directly or through its committees to require
pertinent disclosures in aid of its own constitutional power is not abridged because the
information sought to be elicited may also be of use in such suits.”17
Subsequent Supreme Court rulings have consistently reiterated and reinforced the breadth of
Congress’s investigative authority. For example, in Eastland v. United States Servicemen’s Fund,
the Court explained that “[t]he scope of [Congress’s] power of inquiry ... is as penetrating and
far-reaching as the potential power to enact and appropriate under the Constitution.”18 In addition,
the Court in Watkins v. United States described the breadth of the power of inquiry. According to
the Court, Congress’s power “to conduct investigations is inherent in the legislative process. That
power is broad. It encompasses inquiries concerning the administration of existing laws as well as
proposed or possibly needed statutes.”19 The Court did not limit the power of congressional
inquiry to cases of “wrongdoing.” It emphasized, however, that Congress’s investigative power is
at its peak when the subject is alleged waste, fraud, abuse, or maladministration within a
government department. The investigative power, the Court stated, “comprehends probes into
departments of the Federal Government to expose corruption, inefficiency, or waste.”20 “[T]he
first Congresses” held “inquiries dealing with suspected corruption or mismanagement by
government officials”21 and subsequently, in a series of decisions, “[t]he Court recognized the
danger to effective and honest conduct of the Government if the legislative power to probe
corruption in the Executive Branch were unduly hampered.”22 Accordingly, the Court now clearly
recognizes “the power of the Congress to inquire into and publicize corruption,
maladministration, or inefficiencies in the agencies of Government.”23
The inherent contempt power is not specified in a statute or constitutional provision, but has been
deemed implicit in the Constitution’s grant to Congress of all legislative powers. In an inherent
14 279 U.S. 263 (1929).
15 Id. at 290.
16 Id. at 295.
17 Id.
18 421 U.S. 491, 504, n. 15 (1975) (quoting Barenblatt v. United States, 360 U.S. 109, 111 (1960)).
19 354 U.S. 178, 187 (1957).
20 Id.
21 Id. at 182.
22 Id. at 194-95
23 Id. at 200 n. 33; see also Morrison v. Olson, 487 U.S. 654, 694 (1988) (noting that Congress’s role under the

Independent Counsel Act “of receiving reports or other information and oversight of the independent counsel’s
activities ... [are] functions we have recognized as being incidental to the legislative function of Congress”) (citing
McGrain v. Daugherty, 273 U.S. 135 (1927)).

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contempt proceeding, the offender is tried at the bar of the House or Senate and can be held in
custody until such time as the contemnor provides the testimony or documents sought, or until the
end of the session. Inherent contempt was most often used as a means of coercion, not
punishment. A statutory criminal contempt provision was first enacted by Congress in 1857, in
part because of the inadequacies of proceedings under the inherent power. In cases of criminal
contempt, the offender is cited by the subcommittee, the committee, and the full House or Senate,
with subsequent indictment by a grand jury and prosecution by the U.S. Attorney. Criminal
contempt, unlike inherent contempt, is intended as a means of punishing the contemnor for noncompliance rather than to obtain the information sought. A statutory civil enforcement procedure,
applicable only to the Senate, was enacted in 1978. Under that procedure, a witness, who refuses
to testify before a Senate committee or provide documents sought by the committee can, after
being served with a court order, be held in contempt of court and incarcerated until he agrees to
testify. Moreover, the House and Senate have authorized standing or special committees to seek
civil enforcement of subpoenas.24

Early History of Congressional Contempt
While the contempt power was exercised both by the English Parliament25 and by the American
colonial assemblies,26 Congress’s first assertion of its contempt authority occurred in 1795,
shortly after the ratification of the Constitution. At the time, three Members of the House of
Representatives reported that they had been offered what they interpreted to be a bribe by men
named Robert Randall and Charles Whitney.27 The House of Representatives interpreted these
allegations as sufficient evidence of an attempt to corrupt its proceedings and reported a
resolution ordering their arrest and detention by the Sergeant-at-Arms, pending further action by
the House.28 The matter was then referred to a special Committee on Privileges which reported
out a resolution recommending that formal proceedings be instituted against Messrs. Randall and
Whitney at the bar of the House.29 In addition, the resolution provided that the accused be
questioned by written interrogatories submitted by the Speaker of the House with both the
24 See, e.g., S.Res. 60 & S.Res. 194, 93d Cong., (1973) (Senate Select Committees on Watergate); H.Res. 60, 97th

Cong., (1981) (ABSCAM); H.Res. 12, 100th Cong. (1987) (House Iran–Contra); S.Res. 23, 100th Cong. (1987) (Senate
Iran–Contra); H.Res. 463, 105th Cong., (1998) (Select Committee on National Security Commercial Concerns); see
also H.Res. 1420, 94th Cong. 2d Sess. (1976) (authorizing the chairman of the House Interstate and Foreign Commerce
Subcommittee on Oversight and Investigations to intervene in United States v. American Telephone & Telegraph, 419
F. Supp. 454 (D.D.C. 1976)); H.Res. 899, 121 CONG. REC. 918-19 (1975) (authorizing the chairman of the House
Interstate and Foreign Commerce Subcommittee on Oversight and Investigations to intervene in Ashland Oil Inc., v.
FTC, 409 F. Supp. 297, 307 (D.D.C. 1976)); H.Res. 980, 110th Cong. (2008) (authorizing the chairman of the House
Committee on the Judiciary to initiate judicial proceedings affirming the authority of a congressional subpoena.);
H.Res. 706, 112th Cong. (2012) (authorizing the chairman of the House Oversight and Government Reform Committee
to initiate judicial proceedings affirmed the authority of a congressional subpoena issued to Attorney General Eric
Holder).
25 MAY’S TREATISE ON THE LAW, PRIVILEGES, PROCEEDINGS AND USAGE OF PARLIAMENT, 141-42 (17th ed . 1964).
26 MARY PATTERSON CLARKE, PARLIAMENTARY PRIVILEGE IN THE AMERICAN COLONIES (1971); see also CARL BECK,
CONTEMPT OF CONGRESS: A STUDY OF THE PROSECUTIONS INITIATED BY THE COMMITTEE ON UN-AMERICAN ACTIVITIES,
1945-1957 (1959) [hereinafter Beck].
27 2 ASHER C. HINDS, PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, §1599 (1907) [hereinafter Hinds’ Precedents].
According to the records, Messrs. Randall and Whitney allegedly offered three Members emoluments and money in
exchange for the passage of a law granting Randall and his associates some 18-20 million acres of land bordering Lake
Erie. See id.
28 Id.
29 Id. at §1600.

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questions and the answers entered into the House minutes.30 The resolution also provided that
individual Members could submit written questions to the accused.31
Upon adopting the resolution and after considerable debate, the House determined that the
following procedures be adhered to: First, the complaining Members were to submit a written
signed information to the accused and for publication in the House Journal. In addition, the
accused were to be provided counsel, the right to call witnesses on their behalf, the right to crossexamination of the complaining Members through written questions submitted to the Speaker,
and adequate time to prepare a defense.32 A proceeding was held at the bar of the House, and on
January 4, 1796, the House, by a vote of 78-17, adopted a resolution finding Mr. Randall guilty of
“a contempt to, and a breach of the privileges of, this House by attempting to corrupt the integrity
of its Members in the manner laid to his charge.”33 The House ordered Mr. Randall to be brought
to the bar, reprimanded by the Speaker, and held in custody until further resolution of the
House.34 Mr. Randall was detained until January 13, 1796, when he was discharged by House
resolution. Mr. Whitney, on the other hand, was absolved of any wrongdoing as the House
determined that his actions were against a “member-elect,” and had taken place “away from the
seat of government.”35
Of additional significance is the fact that the records indicate that almost no question was raised
with respect to the power of Congress to punish a non-Member for contempt. According to one
commentator, who noted that many of the Members of the early Congress were also members of
the Constitutional Convention and, thus, fully aware of the legislative practices of the time, it was
“substantially agreed that the grant of the legislative power to Congress carried with it by
implication the power to punish for contempt.”36
Four years later, the Senate exercised its contempt power against William Duane, who, as editor
of the Aurora newspaper, was charged with the publication of a libelous article concerning the
Senate and one of its committees. Mr. Duane was ordered by Senate resolution to appear before
the bar of the Senate and “make any proper defense for his conduct in publishing the aforesaid
false, defamatory, scandalous, and malicious assertions and pretended information.”37 At his
initial appearance before the Senate, Mr. Duane requested, and was granted, the assistance of
counsel and ordered to appear again two days later.38 Instead of appearing before the Senate as
ordered, Mr. Duane submitted a letter indicating he did not believe he could receive a fair trial
before the Senate.39 Mr. Duane was subsequently held in contempt of the Senate for his failure to
appear, not for his alleged libelous and defamatory publications.40 As a result, he was held in the

30 Id.
31 Id.
32 Id. at §§1601-1602. The proceedings appear to have been delayed from December 30, 1795, to January 4, 1796, at

the request of Randall and his counsel. Id.
33 2 Hinds’ Precedents, supra note 27, at §1603.
34 Id.
35 Id.
36 C.S. Potts, Power of Legislative Bodies to Punish for Contempt, 74 U. PENN. L. REV. 691, 720 (1926).
37 2 Hinds’ Precedents, supra note 27, at §1604.
38 Id.
39 Id.
40 Id. The Senate voted 16-11 to hold Mr. Duane in contempt. Id.

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custody of the Senate for several weeks before the Senate, by resolution, instructed that he be
released and tried by the courts.41
The Senate’s contempt of Mr. Duane generated considerably more debate concerning Congress’s
contempt authority. A majority of Senators argued that the Senate’s contempt power was an
inherent right of legislative bodies, derived not specifically from the Constitution, but rather from
“the principle of self-preservation, which results to every public body from necessity and from
the nature of the case.”42 Moreover, Senators supportive of this position argued that their
reasoning was firmly supported by English and colonial practices, as well as the practice of the
state legislatures. Finally, the majority asserted that if Congress did not possess a contempt power
it would be vulnerable to the disruption of its proceedings by outside intruders.43
While the Senate’s exercise of its contempt power was not without precedent, many Senators
disputed these claims, arguing that all powers sought to be exercised by Congress must be
specifically derived from the Constitution; that because the contempt power is not among the
enumerated powers given to Congress, the power is reserved to the states and the people. In
addition, the minority argued that Congress, unlike the English Parliament or state legislatures,
was intentionally not granted the plenary powers of sovereignty by the Constitution and, thus,
could not claim any inherent right to self-preservation.44 As an alternative, the minority proposed
that Congress, which has the power to “make all laws which shall be necessary and proper for
carrying into execution the foregoing powers”45 had sufficient authority to enact a statute that
would protect the integrity of its proceedings.46 Moreover, the minority argued that disruptions of
congressional proceedings would continue to be subject to the criminal laws.47
After Mr. Duane’s contempt by the Senate, it appeared that the subject of the Congress’s inherent
contempt power was settled. The authority, however, was not used again for another 12 years. In
1812, the House issued a contempt resolution against Mr. Nathaniel Rounsavell, who had refused
to answer a select committee’s questions concerning which Representative had given him
information regarding secret sessions.48 However, before Mr. Rounsavell was brought before the
bar of the House a Member admitted his indiscretion and the matter was not pursued.49
Congress’s inherent contempt power was not used again until 1818, where it eventually made its
way to the Supreme Court for adjudication.

Anderson v. Dunn
In 1821, the Supreme Court was faced with interpreting the scope of Congress’s contempt
power.50 The case arose when Representative Louis Williams of North Carolina introduced a
41 Id. The records indicate that Mr. Duane was held in contempt of the Senate on March 27, 1800, and released by

resolution adopted on May 14, 1800, the last day of the session, by a vote of 13-4. Id.
42 Senate Proceedings, 6th Cong. 1799-1801 86 (March 5, 1800); see also Constitution, Jefferson’s Manual, and the
Rules of the House of Representatives, H.R. Doc. 108-241, 108th Cong., 2d Sess., §§297-299 (2005) [hereinafter
Jefferson’s Manual].
43 See Jefferson’s Manual, supra note 42, at §§297-299.
44 Id. at §298
45 U.S. CONST. Art. 1, §8, cl.18.
46 Jefferson’s Manual, supra note 42, at §298.
47 See id.
48 See Beck, supra note 26, at 192.
49 Id.
50 Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821).

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letter before the House from a John Anderson, which Representative Williams interpreted as an
attempt to bribe him.51 Following its 1795 precedent, the House adopted a resolution ordering the
Sergeant-at-Arms to arrest Mr. Anderson and bring him before the bar of the House. Upon Mr.
Anderson’s arrest, however, a debate erupted on the floor of the House as the motion for referral
to the Committee on Privileges to adopt procedures was considered. Several Members objected to
the House’s assertion of an inherent contempt power. They argued, as the minority Senators had
in Mr. Duane’s contempt, that neither the Constitution nor the general laws afforded the Congress
such an inherent power to punish for actions that occurred elsewhere.52 Relying on the 1795
precedent and examples from the British Parliament and state legislatures, the committee was
formed and it adopted a resolution requiring Mr. Anderson to be brought before the bar of the
House for questioning by the Speaker.53 At his appearance, Mr. Anderson, like Mr. Randall and
Mr. Whitney before him, was afforded counsel and permitted to present the testimony of eleven
witnesses. Ultimately, Mr. Anderson was found in contempt of Congress and was ordered to be
reprimanded by the Speaker for the “outrage he committed” and discharged into the custody of
the Sergeant-at-Arms.54
Mr. Anderson subsequently filed suit against Mr. Thomas Dunn, the Sergeant-at-Arms of the
House, alleging assault, battery, and false imprisonment. Mr. Dunn responded by asserting that he
was carrying out the lawful orders of the House of Representatives. The Supreme Court heard the
case in February of 1821 and concluded that the Congress possessed the inherent authority to
punish for contempt and dismissed the charges against Mr. Dunn.55 The Court noted that while
the Constitution does not explicitly grant either House of Congress the authority to punish for
contempt, except in situations involving its own Members, such a power is necessary for
Congress to protect itself. The Court asserted that if the House of Representatives did not possess
the power of contempt it would “be exposed to every indignity and interruption, that rudeness,
caprice, or even conspiracy, may meditate against it.”56
The Court’s decision in Anderson does not define the specific actions that would constitute
contempt; rather, it adopted a deferential posture, noting that “it is only necessary to observe that
there is nothing on the facts of the record from which it can appear on what evidence the warrant
was issued and we do not presume that the House of Representatives would have issued it without
fully establishing the facts charged on the individual.”57
The Anderson decision indicates that Congress’s contempt power is centered on those actions
committed in its presence that obstruct its deliberative proceedings. The Court noted that
Congress could supplement this power to punish for contempt committed in its presence by
enacting a statute, which would prohibit “all other insults which there is any necessity for
providing.”58

51 See 2 Hinds’ Precedents, supra note 27, at §1606. The letter offered Representative Williams $500 as “part pay for

extra trouble” with respect to furthering the claims of Mr. Anderson with respect to the River Raisin. Id.
52 Id.
53 Id.
54 Id.
55 Anderson, 19 U.S. (6 Wheat.) 204.
56 Id. at 228.
57 Id. at 234.
58 Id. at 228.

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The Court in Anderson also endorsed the existing parliamentary practice that the contemnor could
not be held beyond the end of the legislative session.59 According to the Court, “[s]ince the
existence of the power that imprisons is indispensable to its continuance, and although the
legislative power continues perpetual, the legislative body ceases to exist, on the moment of its
adjournment or periodical dissolution. It follows, that imprisonment must terminate with that
adjournment.”60
Since Anderson was decided there has been an unresolved question as to whether this rule would
apply with equal force to a contempt by the Senate, since it is considered a “continuing body.”61
The Senate, it appears, has only addressed this issue once, in 1871, regarding the contempt of two
recalcitrant witnesses, Z.L. White and H.J. Ramsdell.62 During these contempt proceedings, the
Senate found itself near the end of a session and the question arose as to whether the Senate’s
acquiescence to the Anderson rule would provide adequate punishment. After vigorous debate,
the Senate instructed the Sergeant-at-Arms to release the prisoners immediately upon the final
adjournment of the Congress.63 The House, however, has imprisoned a contemnor for a period
that extended beyond the adjournment of a Congress. Patrick Wood was sentenced by the House
to a three-month term in jail for assaulting Representative Charles H. Porter.64 Although there is
no doubt that Mr. Woods’s period of incarceration extended beyond the date of adjournment, it
was not challenged and, therefore, there is no judicial opinion addressing the issue.

Kilbourn v. Thompson
In 1876, the House established a select committee to investigate the collapse of Jay Cooke &
Company, a real estate pool in which the United States had suffered losses as a creditor.65 The
committee was, by resolution, given the power to subpoena both persons and records pursuant to
its investigation. Acting under its authority, the committee issued a subpoena duces tecum to one
59 See 2 Hinds’ Precedents, supra note 27, at §1604 (noting that Mr. Duane, who had been held in contempt by the

Senate, was released from custody on the last day of the legislative session).
60 Anderson, 19 U.S. (6 Wheat.) at 231.
61 Unlike the House, whose entire membership stands for election every two years, only one-third of the Senate is
elected each Congress.
62 Moreland, supra note 10, at 199, n. 31.
63 Id.
64 See 2 Hinds’ Precedents, supra note 27, at §§1628-629.
65 See 2 Hinds’ Precedents, supra note 27, at §1609. It should also be noted that the Speaker also reported Mr.
Kilbourn’s contempt to the District Attorney for the District of Columbia pursuant to the 1857 criminal contempt
statute. According to records, the District Attorney presented the case to a grand jury and received an indictment for
five counts of contempt. The District Attorney requested the Mr. Kilbourn be turned over to his custody for trial. The
House, however, after considerable debate, adopted a resolution instructing the Sergeant-at-Arms not to release Mr.
Kilbourn. See 4 CONG. REC. 2483-2500, 2513-2532 (April 15-16 1876). Although the Supreme Court later indicated, in
the case of In re Chapman, 166 U.S. 661, 672 (1897), that the double jeopardy clause of the Constitution would not
prohibit a criminal prosecution of a witness for contempt of Congress after he had been tried at the bar of the House
under the inherent contempt power, subsequent developments in the interpretation of the double jeopardy clause
suggest that this aspect of the Chapman decision is no longer good law. See Grafton v. United States, 206 U.S. 333
(1907); Waller v. Florida, 397 U.S. 387 (1970); Columbo v. New York, 405 U.S. 9 (1972). However, it appears that
where the sanction imposed pursuant to the inherent contempt power is intended to be purely coercive and not punitive,
a subsequent criminal prosecution would be permissible since the double jeopardy clause bars only dual criminal
prosecutions. See S.Rept. 95-170, 95th Cong., 1st Sess., 89 (1977) (stating that “[o]nce a committee investigation has
terminated, a criminal contempt of Congress citation under 2 U.S.C. §192 might still be referred to the Justice
Department if the Congress finds this appropriate. Such prosecution for criminal contempt would present no double
jeopardy problem.”); see also Hearings Before the Senate Committee on Governmental Affairs on S. 555, 95th Cong.,
1st Sess., 798-800 (1977).

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Hallet Kilbourn, the manager of the real estate pool. When Mr. Kilbourn refused to produce
certain papers or answer questions before the committee he was arrested and tried under the
House’s inherent contempt power. The House adjudged Mr. Kilbourn in contempt and ordered
him detained by the Sergeant-at-Arms until he purged himself of contempt by releasing the
requested documents and answering the committee’s questions.66
Mr. Kilbourn filed a suit against the Speaker, the members of the committee, and the Sergeant-atArms for false arrest. The lower court held in favor of the defendant dismissing the suit. Mr.
Kilbourn appealed, and the Supreme Court reversed, holding that Congress did not have a general
power to punish for contempt.67 While the Court appeared to recognize that Congress possessed
an inherent contempt power, it declined to follow Anderson v. Dunn’s expansive view of
Congress’s authority. Moreover, the Court rejected any reliance on the English and colonial
precedents establishing the source and extent of Congress’s contempt power. The Court stated
that
[w]e are of opinion that the right of the House of Representatives to punish the citizen for
a contempt of its authority or a breach of its privileges can derive no support from the
precedents and practices of the two Houses of the English Parliament, nor from the
adjudged cases in which the English courts have upheld these practices. Nor, taking what
has fallen from the English judges, and especially the later cases on which we have just
commented, is much aid given to the doctrine, that this power exists as one necessary to
enable either House of Congress to exercise successfully their function of legislation.68

The Court held that the investigation into the real estate pool was not undertaken by the
committee pursuant to one of Congress’s constitutional responsibilities, but rather was an attempt
to pry into the personal finances of private individuals, a subject that could not conceivably result
in the enactment of valid legislation. According to the Court, because Congress was acting
beyond its constitutional responsibilities, Mr. Kilbourn was not legally required to answer the
questions asked of him. In short, the Court held that “no person can be punished for contumacy as
a witness before either House, unless his testimony is required in a matter into which that House
has jurisdiction to inquire, and we feel equally sure that neither of these bodies possesses the
general power of making inquiry into the private affairs of the citizen.”69
In addition, the Court indicated that the investigation violated the doctrine of separation of
powers because judicial bankruptcy proceedings were pending relating to the collapse of the real
estate pool and, therefore, it might be improper for Congress to conduct an investigation that
could interfere with the judicial proceedings.70 The Court specifically challenged Congress’s
assertion that there were no other viable remedies available to the government to retrieve the lost
funds.71 Thus, the Court concluded that
the resolution of the House of Representatives authorizing the investigation was in excess
of the power conferred on that body by the Constitution; that the committee, therefore, had
no lawful authority to require Kilbourn to testify as a witness beyond what he voluntarily
chose to tell; that the orders and resolutions of the House, and the warrant of the speaker,
66 See 2 Hinds’ Precedents, supra note 27, at §1609.
67 Kilbourn v. Thompson, 103 U.S. 168, 189-90 (1881).
68 Id. at 189.
69 Id.
70 273 U.S. 135 (1927).
71 Id. at 194 (questioning “[h]ow could the House of Representatives know, until it had been fairly tried, that the courts

were powerless to redress the creditors of Jay Cooke & Co.? The matter was still pending in a court, and what right had
the Congress of the United States to interfere with a suit pending in a court of competent jurisdiction?”).

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under which Kilbourn was imprisoned, are, in like manner, void for want of jurisdiction in
that body, and that his imprisonment was without any lawful authority.72

Finally, in dicta, the Court indicated that the contempt power might be upheld where Congress
was acting pursuant to certain specific constitutional prerogatives, such as disciplining its
Members, judging their elections, or conducting impeachment proceedings.
Although the precedential value of Kilbourn has been significantly limited by subsequent case
law, the case continues to be cited for the proposition that the House has no power to probe into
private affairs, such as the personal finances of an individual, on which legislation could not be
enacted. The doubts raised by Kilbourn about the scope of Congress’s contempt power have
essentially been removed by later cases sanctioning the use of the power in investigations
conducted pursuant to Congress’s authority to discipline its Members,73 to judge the elections of
its Members,74 and, most importantly, to probe the business and conduct of individuals to the
extent that the matters are subject to congressional regulation.75 For example, in McGrain v.
Daugherty, which involved a Senate investigation into the claimed failure of the Attorney General
to prosecute certain antitrust violations, a subpoena was issued to the brother of the Attorney
General, Mallie Daugherty, the president of an Ohio bank. When Daugherty refused to comply,
the Senate exercised its inherent contempt power and ordered its Sergeant-at-Arms to take him
into custody. The grant of a writ of habeas corpus was appealed to the Supreme Court. The
Court’s opinion in the case considered the investigatory and contempt powers of Congress to be
implicit in the grant of legislative power.76 The Court distinguished Kilbourn, which was an
investigation into purely personal affairs, from the instant case, which was a probe of the
operation of the Department of Justice (DOJ). According to the Court, the subject was plainly
“one on which legislation could be had and would be materially aided by information the
investigation was calculated to elicit.”77 The Court in McGrain was willing to presume that the
investigation had been undertaken to assist the committee in its legislative efforts.78

Inherent Contempt
Congress’s inherent contempt power is not specifically granted by the Constitution, but is
considered necessary to investigate and legislate effectively. The validity of the inherent contempt
power was upheld in the early Supreme Court decision in Anderson v. Dunn and reiterated in
McGrain v. Daugherty. Under the inherent contempt power the individual is brought before the
House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned or
detained in the Capitol or perhaps elsewhere.79 The purpose of the imprisonment or other sanction
72 Id. at 196.
73 In Re Chapman, 166 U.S. 661 (1897).
74 Barry v. United States ex rel Cunningham, 279 U.S. 597 (1929).
75 McGrain v. Daugherty, 273 U.S. 135 (1927).
76 Id.
77 Id. at 177.
78 Id. at 177-178; see also ICC v. Brimson, 154 U.S. 447 (1894). It has been said that McGrain “very clearly removed

the doubt [that had existed after Kilbourn v. Thompson] as to whether Congress could force testimony in aid of
legislation.” Moreland, supra note 10, at 222. Although McGrain and Sinclair v. United States, 279 U.S. 263 (1929),
involved inquiries into the activities of private individuals, there was a connection to property owned by the United
States and, therefore, it could not be said that purely personal affairs were the subjects of the investigations.
79 Given Congress’s plenary power over the District of Columbia, the contemnor could potentially be detained or jailed
in a D.C. Metropolitan Police Department facility. See U.S. CONST. art. I, §8 (“The Congress shall have Power…To
exercise exclusive Legislation in all Cases whatsoever, over such District…as may…become the Seat of the

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may be either punitive80 or coercive.81 Thus, the witness can be imprisoned for a specified period
of time as punishment, or for an indefinite period (but not, at least by the House, beyond the end
of a session of the Congress) until he agrees to comply. One commentator has concluded that the
procedure followed by the House in the contempt citation that was at issue in Anderson v. Dunn is
typical of that employed in the inherent contempt cases.
These traditional methods may be explained by using as an illustration Anderson v. Dunn.
... In 1818, a Member of the House of Representatives accused Anderson, a non-Member,
of trying to bribe him. ... The House adopted a resolution pursuant to which the Speaker
ordered the Sergeant-at-Arms to arrest Anderson and bring him before the bar of the House
(to answer the charge). When Anderson appeared, the Speaker informed him why he had
been brought before the House and asked if he had any requests for assistance in answering
the charge. Anderson stated his requests, and the House granted him counsel, compulsory
process for defense witnesses, and a copy, of the accusatory letter. Anderson called his
witnesses; the House heard and questioned them and him. It then passed a resolution
finding him guilty of contempt and directing the Speaker to reprimand him and then to
discharge him from custody. The pattern was thereby established of attachment by the
Sergeant-at-Arms; appearance before the bar; provision for specification of charges,
identification of the accuser, compulsory process, counsel, and a hearing; determination of
guilt; imposition of penalty.82

When a witness is cited for contempt under the inherent contempt process, prompt judicial review
appears to be available by means of a petition for a writ of habeas corpus.83 In such a habeas
proceeding, the issues decided by the court might be limited to (a) whether the House or Senate
acted in a manner within its jurisdiction,84 and (b) whether the contempt proceedings complied
with minimum due process standards.85 While Congress would not have to afford a contemnor the
whole panoply of procedural rights available to a defendant in criminal proceedings, notice and
an opportunity to be heard would have to be granted.86 Also, some of the requirements imposed
by the courts under the statutory criminal contempt procedure (e.g., pertinency of the question
asked to the committee’s investigation) might be mandated by the due process clause in the case
of inherent contempt proceedings.87
Although many of the inherent contempt precedents have involved incarceration of the
contemnor, there may be an argument for the imposition of monetary fines as an alternative. Such
a fine would potentially have the advantage of avoiding a court proceeding on habeas corpus
grounds, as the contemnor would never be jailed or detained. Drawing on the analogous authority

Government of the United States.”).
80 Jurney v. MacCracken, 294 U.S. 125, 147 (1935).
81 McGrain v. Daugherty, 273 U.S. at 161.
82 Thomas L. Shriner, Jr., Legislative Contempt and Due Process: The Groppi Cases, 46 IND. L. J. 480, 491 (1971)
[hereinafter Shriner].
83 See Marshall v. Gordon, 243 U.S. 521 (1917); see also United States v. Fort, 443 F.2d 670, 676 (D.C. Cir. 1970);
Theodore Sky, Judicial Review of Congressional Investigations: Is There an Alternative to Contempt, 31GEO. WASH. L.
REV. 399, 400, n.3 (1962) [hereinafter Sky].
84 Jurney v. MacCracken, 294 U.S. 125, 147 (1935); see also Kilbourn v. Thompson, 103 U.S. 168, 196 (1880); Ex
Parte Nugent, 18 F. 471 (D.D.C. 1848).
85 Groppi v. Leslie, 404 U.S. 496 (1972).
86 Id.
87 For a discussion of these statutory limitations on the contempt power see infra at notes 279-351 and accompanying
text.

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that courts have to inherently impose fines for contemptuous behavior,88 it appears possible to
argue that Congress, in its exercise of a similar inherent function could impose fines as opposed
to incarceration. Additional support for this argument appears to be contained in dicta from the
1821 Supreme Court decision in Anderson v. Dunn. The Court questioned the “extent of the
punishing power which the deliberative assemblies of the Union may assume and exercise on the
principle of self preservation” and responded with the following:
Analogy, and the nature of the case, furnish the answer—“the least possible power
adequate to the end proposed;” which is the power of imprisonment. It may, at first view,
and from the history of the practice of our legislative bodies, be thought to extend to other
inflictions. But every other will be found to be mere commutation for confinement; since
commitment alone is the alternative where the individual proves contumacious.89

Finally, in Kilbourn v. Thompson, the Court suggested that in certain cases where the Congress
had authority to investigate, it may compel testimony in the same manner and by use of the same
means as a court of justice in like cases. Specifically, the Court noted that “[w]hether the power
of punishment in either House by fine or imprisonment goes beyond this or not, we are sure that
no person can be punished for contumacy as a witness before either House, unless his testimony
is required in a matter into which that House has jurisdiction to inquire.... ”90 While the language
of these cases and the analogous power possessed by courts seem to suggest the possibility of
levying a fine as punishment for contempt of Congress, we are not aware of, and could not locate,
any precedent for Congress imposing a fine in the contempt context.
In comparison with the other types of contempt proceedings, inherent contempt has the
distinction of not requiring the cooperation or assistance of either the executive or judicial
branches. The House or Senate can, on its own, conduct summary proceedings and cite the
offender for contempt. Furthermore, although the contemnor can seek judicial review by means
of a petition for a writ of habeas corpus, the scope of such review may be relatively limited,
compared to the plenary review accorded by the courts in cases of conviction under the criminal
contempt statute.
There are also certain limitations on the inherent contempt process. Although the contemnor can
be incarcerated until he agrees to comply with the subpoena, imprisonment may not extend
beyond the end of the current session of Congress.91 Moreover, inherent contempt has been
described as “unseemly,” cumbersome, time-consuming, and relatively ineffective, especially for
a modern Congress with a heavy legislative workload that would be interrupted by a trial at the
bar.92 Because of these drawbacks, the inherent contempt process has not been used by either
body since 1935.93 Proceedings under the inherent contempt power might be facilitated, however,
if the initial fact-finding and examination of witnesses were to be held before a special
committee—which could be directed to submit findings and recommendations to the full body—
88 See, e.g., United States v. United Mine Workers, 330 U.S. 258 (1947) (upholding a $700,000 fine against a labor

union as punishment for disobedience of a preliminary injunction preventing it from continuing a worker strike and
approving the imposition of a $2.8 million fine if the union did not end the strike within five days).
89 Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 230-31 (1821) (emphasis added).
90 Kilbourn v. Thompson, 103 U.S. 168, 190 (1881) (emphasis added).
91 Watkins v. United States, 354 U.S. 178, 207, n.45 (1957); Anderson, 19 U.S. (6 Wheat.) at 231.
92 See S.Rept. 95-170, 95th Cong., 1st Sess., 97 (1977); see also Rex E. Lee, Executive Privilege, Congressional
Subpoena Power, and Judicial Review: Three Branches, Three Powers, and Some Relationships, 1978 B.Y.U. L. REV.
231, 255 n. 71 (1978) [hereinafter Lee].
93 4 DESCHLER’S PRECEDENTS OF THE U.S. HOUSE OF REPRESENTATIVES, ch. 15, §17, 139 n.7 (1977) [hereinafter
Deschler’s Precedents]; see also Lee, supra note 92, at 255.

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with only the final decision as to guilt being made by the full House or Senate. Although
generally the proceedings in inherent contempt cases appear to have been conducted at the bar of
the House of Congress involved,94 in at least a few instances proceedings were conducted initially
or primarily before a committee, but with the final decision as to whether to hold the person in
contempt being made by the full body.95

Inherent Contempt Proceedings by Committees of Congress
As has been indicated, although the majority of the inherent contempt actions by both the House
and the Senate were conducted via trial at the bar of the full body, there is historical evidence to
support the notion that this is not the exclusive procedure by which such proceeding can occur.
This history, when combined with a 1992 Supreme Court decision addressing the power of
Congress to make its own rules for the conduct of impeachment trials,96 strongly suggests that the
inherent contempt process can be supported and facilitated by the conduct of evidentiary
proceedings and the development of recommendations at the committee level.
Actually, the consideration of the use of committees to develop the more intricate details of an
inquiry into charges of contempt of Congress date back to the very first inherent contempt
proceedings of Messrs. Randall and Whitney in 1795. As discussed above, in these cases the
House appointed a Committee on Privileges to report a mode of procedure. The committee
reported the following resolution, which was adopted by the full House of Representatives:
Resolved, That the said Robert Randall and Charles Whitney be brought to the bar of the
House and interrogated by the Speaker touching the information given against them, on
written interrogatories, which with the answers thereto shall be entered into the minutes of
the House. And that every question proposed by a Member be reduced to writing and a
motion made that the same be put by the Speaker. That, after such interrogatories are
answered, if the House deem it necessary to make any further inquiry on the subject, the
same be conducted by a committee to be appointed for that purpose.97

According to the Annals of Congress, the committee’s language sparked a debate concerning the
proper procedures to be used, including a discussion regarding whether the use of such a select
committee was proper.98 At least one Representative “was convinced that the select committee
was alone competent to taking and arranging the evidence for the decision of the House.”99 While
others noted that “the investigation of facts is constantly performed by select committees. ... [The
committee’s] report is not to be final, it is to be submitted to the House for final decision.”100 It
was recommended that, “the subject should be remanded to a committee, which would save a
good deal of time.”101 Other Members, however, objected to the use of a select committee to hear
94 See Beck, supra note 26, at 4; ERNEST J. EBERLING, CONGRESSIONAL INVESTIGATIONS 289 (1928) [hereinafter

Eberling].
95 For example, in 1865, the House appointed a select committee to inquiry into an alleged breach of privilege
committed by Mr. A.P. Field for assaulting a Member of the House. 72 CONG. GLOBE, 38th Cong., 2d Sess., 371 (1865).
After taking testimony, the committee recommended, and the House adopted, a resolution directing the Speaker to
reprimand Field at the bar of the House. Id. at 971, 974.
96 See United States v. Nixon, 506 U.S. 224 (1992).
97 See 2 Hinds’ Precedents, supra note 27, at §1599 (emphasis added).
98 See 5 ANNALS OF CONG. 188 (1792).
99 See id. (statement of Rep. Baldwin).
100 Id. at 189 (statement of Rep. W. Smith).
101 Id. at 190 (statement of Rep. W. Smith).

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evidence of this magnitude on the grounds that it would be “highly improper for the witness to be
sworn by a select committee, and that committee to send for the Members and have them sworn
and examined in that private way. However troublesome and difficult, the House must meet all
the questions and decide them on this floor.”102
Ultimately, it appears that none of the proceedings in this case was conducted before a select
committee. That said, Congress’s interpretation of its own powers and prerogatives is significant.
It is clear that during the very first exercise of Congress’s power of inherent contempt, the House
allowed for the possibility that at least some of the proceedings could occur before a committee,
rather than at the bar of the House.
This early precedent was finally invoked in 1836, when after the assault of reporter Robert Codd
by reporter Henry Wheeler on the House floor, the House committed the examination of a
contempt and breach of privilege to a select committee. The House adopted the following
resolution empowering the committee to conduct a contempt investigation:
Resolved, That a select committee be forthwith appointed, whose duty it shall be forthwith
to inquiry into an assault committed within the Hall of the House of Representatives this
morning, while this House was in session and for and on account of which two persons are
now in custody of the Sergeant-at-Arms; and said committee are to make their report to
this House; and that said committee be authorized to administer oaths and to cause the
attendance of witnesses.103

The committee’s report noted that Mr. Wheeler admitted his offense and included a
recommendation that the punishment not be vindictive.104 The report also contained three
resolutions that were considered by the full House. The first found Mr. Wheeler guilty of
contempt and breach of the privileges of the House, and was adopted. The second, which was
amended on the floor prior to adoption, excluded Mr. Wheeler from the floor of the House for the
remainder of the session. Finally, the third resolution, which called for Mr. Wheeler to be taken
into custody for the remainder of the session, was also amended on the floor prior to adoption to
simply discharge Mr. Wheeler from custody.105
Another example of the use of select committee to hear a contempt trial occurred in 1865, when it
was alleged that Mr. A.P. Field assaulted Representative William Kelley. Similar to the contempt
proceedings of Mr. Wheeler, the House adopted the following resolution authorizing a select
committee to conduct an examination of the charges:
Be it Resolved, That a select committee of five members be appointed by the Speaker to
inquire into the said alleged breach of privilege; that the said committee have power to
send for persons and papers, and to examine witnesses; and that the committee report as
soon as possible all the facts and circumstances of the affair, and what order, if any, it is
proper for this House to take for the vindication of its privilege, and right, and duty of free
legislation and judgment.106

During the debate on the resolution it was observed that proceeding in this manner would avoid a
trial by the full House, which, in the words of one Member, “would consume a great amount of

102 Id. at 188 (statement of Rep. Hillhouse).
103 2 Hinds’ Precedents, supra note 27, at §1630.
104 See id.; see also H.Rept. 792, 24th Cong. 1st Sess. (1836).
105 H.Rept. 792, 24th Cong. 1st Sess. (1836); see also Groppi v. Leslie, 404 U.S. 496, 501 n.4 (1972) (citing the Wheeler

committee procedure as an example of procedures followed by Congress in contempt cases).
106 CONG. GLOBE, 38th Cong., 2nd Sess., 371 (1865).

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the public time which there is a pressing need to apply to the business of the Government, it is
better that the course should be adopted which is contemplated by the resolution.... ”107
The select committee, in its report to the full House, noted that it had heard the testimony of
several witnesses concerning the incident, including the voluntary statement of Mr. Field.108 Also
according to the committee, Mr. Field was present for each of the witnesses and, in fact, several
of them were heard from at his request. Moreover, all of the witnesses were subject to
examination or cross-examination by Mr. Field.109 At the committee’s recommendation, a
resolution directing the Speaker to issue a warrant for Mr. Field’s arrest by the Sergeant-at-Arms
for the purpose of bringing him before the Speaker for a reprimand was adopted.110 It does not
appear that Mr. Field or his counsel was permitted to be present during the House’s consideration
of the committee’s report, nor does it appear that he was afforded an opportunity to address the
House prior to his formal reprimand. In fact, during the course of the reprimand, the Speaker
expressly referred to Mr. Field having “been tried before a committee of their members, and
ordered to be reprimanded at the bar of the House by their Presiding Officer,”111 which may be
interpreted as indicating that the committee’s proceedings were deemed to be sufficient in the
eyes of the House.

Nixon v. United States
Although there is ample historical evidence of the presumed propriety of contempt proceedings
before committees of Congress, there has been no judicial ruling directly confirming the
Congress’s interpretation of its own contempt powers. In 1993, however, the Supreme Court
decided Nixon v. United States,112 which, while not a contempt case, involved an analogous
delegation of authority by the Senate to a select committee for the purposes of hearing evidence
regarding the impeachment of two federal judges. Specifically, the impeached judges challenged
the Senate’s procedure under Rule XI of the “Rules of Procedure and Practice in the Senate when
Sitting on Impeachment Trials,” which provides:
That in the trial of any impeachment the Presiding Officer of the Senate, if the Senate so
orders, shall appoint a committee of Senators to receive evidence and take testimony at
such times and places as the committee may determine, and for such purpose the committee
so appointed and the chairman thereof, to be elected by the committee, shall (unless
otherwise ordered by the Senate) exercise all the powers and functions conferred upon the
Senate and the Presiding Officer of the Senate, respectively, under the rules of procedure
and practice in the Senate when sitting on impeachment trials.
Unless otherwise ordered by the Senate, the rules of procedure and practice in the Senate
when sitting on impeachment trials shall govern the procedure and practice of the
committee so appointed. The committee so appointed shall report to the Senate in writing
a certified copy of the transcript of the proceedings and testimony had and given before the
committee, and such report shall be received by the Senate and the evidence so received
and the testimony so taken shall be considered to all intents and purposes, subject to the
right of the Senate to determine competency, relevancy, and materiality, as having received
and taken before the Senate, but nothing herein shall prevent the Senate from sending for
107 Id. (statement of Rep. Thayer).
108 Id. at 971.
109 Id.
110 Id. at 972-74.
111 Id. at 991 (emphasis added).
112 506 U.S. 224 (1993).

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any witness and hearing his testimony in open Senate, or by order of the Senate having the
entire trial in open Senate.113

Judge Nixon argued that the use of a select committee to hear the evidence and witness testimony
of his impeachment violated the Senate’s constitutional duty to “try” all impeachments.
According to Judge Nixon, anything short of a trial before the full Senate was unconstitutional
and, therefore, required reversal and a reinstatement of his judicial salary. The Court held the
issue to be a non-justiciable political question. Chief Justice Rehnquist, writing for the Court,
based this conclusion upon the fact that the impeachment proceedings were textually committed
in the Constitution to the legislative branch. In addition, the Court found the “lack of finality and
the difficulty in fashioning relief counsel[led] against justiciability.”114 According to the majority,
to open “the door of judicial review to the procedures used by the Senate in trying impeachments
would ‘expose the political life of the country to months, or perhaps years, of chaos.’”115 The
Court found that the word “try” in the Impeachment Clause did not “provide an identifiable
textual limit on the authority which is committed to the Senate.”116 Justice Souter’s concurring
opinion noted that “[i]t seems fair to conclude that the [Impeachment] Clause contemplates that
the Senate may determine, within broad boundaries, such subsidiary issues as the procedures for
receipt and consideration of evidence necessary to satisfy its duty to ‘try’ impeachments.”117
The Court’s affirmation of the Senate’s procedures with respect to the appointment of select
committees for impeachment trials, clearly indicates that the use of committees for contempt
proceedings—whether they be standing legislative committees, or select committees created by
resolution for a specific purpose—is a permissible exercise of each House’s Article I, Section 5
rulemaking power. As such, it would appear that one of the suggested reasons for the apparent
abandonment of the use of Congress’s inherent contempt power, namely, that it became too
cumbersome and time consuming to try contemptuous behavior on the floor of the body, is no
longer compelling. The ability to utilize the committee structure for trials, evidentiary hearings,
and other procedural determinations appears to be supported not only by the historical records of
previous contempt proceedings, but also by the Court’s decision in Nixon.
While the Court in Nixon addressed the permissibility of using select committees in impeachment
trials, it says nothing about the rights or privileges that would be required to be afforded to the
accused. Similarly, in any contempt proceedings before a congressional committee, the question
of rights and privileges remains one that has not yet been directly addressed by the courts.
According to the Supreme Court in Groppi v. Leslie,
[t]he past decisions of this Court strongly indicate that the panoply of procedural rights that
are accorded a defendant in a criminal trial has never been thought necessary in legislative
contempt proceedings. The customary practice in Congress has been to provide the
contemnor with an opportunity to appear before the bar of the House, or before a
committee, and give answer to the misconduct charged against him.118

113 Id. at 227, n. 1 (emphasis added).
114 Id. at 263.
115 Id. (quoting United States v. Nixon, 938 F.2d 239, 246 (D.C. Cir. 1991)).
116 Id. at 238.
117 Id. at 253 (Souter, J., concurring).
118 See Groppi v. Leslie, 404 U.S. 496, 500-01 (1972) (citing Jurney v. MacCracken, 294 U.S. 125, 143-144 (1935);

Kilbourn v. Thompson, 103 U.S. 168, 173-174 (1880); Anderson v. Dunn, 19 U.S.( 6 Wheat.) 204, 209-211 (1821);
Marshall v. Gordon, 243 U.S. 521, 532 (1917)).

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The Court also suggested that “the length and nature of the [right to be heard] would traditionally
be left largely to the legislative body.... ”119 This deference to Congress in establishing its own
rules and procedures is consistent with the more recent decision in Nixon. Thus, it would appear
that while there is no definitive answer to the question of what rights the committee hearing a
contempt proceeding would be required to afford,120 so long as the minimum protections of notice
and opportunity to be heard are provided, the courts, it seems, will not interfere with Congress’s
decisions regarding proper procedure.
Congressional precedent would also appear to be a useful guide to the question of what process is
due. A review of early exercises of inherent contempt, discussed above, indicates that the
following procedures have been established: attachment by the Sergeant-at-Arms; appearance
before the bar; provision for specification of charges; identification of the accuser; compulsory
process; provision of counsel; a hearing; determination of guilt; and imposition of a penalty.
According to one commentator, “[t]his traditional procedure was followed by both houses of
Congress until they abandoned it for a more convenient statutory device.”121 Since these
procedures appear to be in excess of what the Court instructed was required in Groppi, it would
seem reasonable to conclude that any inherent contempt proceeding that conforms with these
traditions would likely satisfy judicial review.

Statutory Criminal Contempt
Between 1795 and 1857, 14 inherent contempt actions were initiated by the House and Senate,
eight of which can be considered successful in that the contemnor was meted out punishment,
agreed to testify, or produced documents. Such inherent contempt proceedings, however, involved
a trial at the bar of the chamber concerned and, therefore, were seen by some as time-consuming,
cumbersome, and in some instances ineffective—because punishment could not be extended
beyond a House’s adjournment date.122 In 1857, a statutory criminal contempt procedure was
enacted,123 largely as a result of a particular proceeding brought in the House of Representatives
that year. The statute provides for judicial trial of the contemnor by a United States Attorney
rather than a trial at the bar of the House or Senate. It is clear from the floor debates and the
subsequent practice of both Houses that the legislation was intended as an alternative to the
inherent contempt procedure, not as a substitute for it. A criminal contempt referral was made in
the case of John W. Wolcott in 1858, but in the ensuing two decades after its enactment most
contempt proceedings continued to be handled at the bar of the House, rather than by the criminal
contempt method, apparently because Members felt that they would not be able to obtain the
desired information from the witness after the criminal proceedings had been instituted.124 With
119 Groppi, 404 U.S. at 503.
120 While the Supreme Court in Groppi limited its holding to requiring only notice and the opportunity to be heard, the

lower court in the same case suggested that the following rights were also necessary: representation by counsel; the
ability to compel the attendance of witnesses; an opportunity to confront any accusers; and the right to present a
defense to the charges. See Groppi v. Leslie, 311 F. Supp. 772, 774 (W.D. Wisc. 1970), rev’d, 436 F.2d 326 (7th Cir.
1970), rev’d., 404 U.S. 496 (1972).
121 Shriner, supra note 82, at 491.
122 See Eberling, supra note 94, at 302-16.
123 Act of January 24, 1857, c. 19 §3, 11 Stat. 156 (1857) (codified as amended at 2 U.S.C. §§192, 194 (2012)). The
constitutionality of the statute was upheld by the Supreme Court in 1897. See In re Chapman, 166 U.S. 661 (1897).
124 Beck, supra note 26, at 191-214. In the appendix to Beck’s study, he provides a comprehensive list of persons from
1793-1943 who were held in contempt of Congress, and the circumstances surrounding their cases. A review of Beck’s
chronology indicates that from 1857-1934 Congress relied on its inherent contempt power almost exclusively, despite

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only minor amendments, those statutory provisions are codified today as 2 U.S.C. §§192 and 194,
which state the following:
Every person who having been summoned as a witness by the authority of either House of
Congress to give testimony or to produce papers upon any matter under inquiry before
either House, or any joint committee established by a joint or concurrent resolution of the
two Houses of Congress, or any committee of either House of Congress, willfully makes
default, or who, having appeared, refuses to answer any question pertinent to the question
under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more
than [$100,000] nor less than $100 and imprisonment in a common jail for not less than
one month nor more than twelve months.125
Whenever a witness summoned as mentioned in Section 192 of this title fails to appear to
testify or fails to produce any books, papers, records, or documents, as required, or
whenever any witness so summoned refuses to answer any question pertinent to the subject
under inquiry before either House, or any joint committee established by a joint or
concurrent resolution of the two Houses of Congress, or any committee or subcommittee
of either House of Congress, and the fact of such failure or failures is reported to either
House while Congress is in session or when Congress is not in session, a statement of fact
constituting such failure is reported to and filed with the President of the Senate or the
Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of
the House, as the case may be, to certify, and he shall so certify, the statement of facts
aforesaid under the seal of the Senate or House, as the case may be, to the appropriate
United States attorney, whose duty it shall be to bring the matter before the grand jury for
its action.126

The legislative debate over the criminal contempt statute reveals that it was prompted by the
obstruction of a House select committee’s investigation into allegations of misconduct that had
been made against several Members of the House of Representatives. According to reports, the
investigation was hindered by the refusal of a newspaper reporter, James W. Simonton, to provide
answers to certain questions posed by the committee.127 The select committee responded by
reporting a resolution citing Mr. Simonton for contempt, as well as introducing a bill128 that was
intended “to more effectually ... enforce the attendance of witnesses on the summons of either
House of Congress, and to compel them to discover testimony.”129 It appears that there were no
printed House or Senate committee reports on the measure, though it was considered in the House
by the select committee and in the Senate by the Judiciary Committee.130
According to the legislative debate records and commentators, there was opposition to the bill on
several fronts. Some Members proposed an amendment expressly codifying Congress’s contempt
power for failure to comply with requests for documents or testimony, thereby resurrecting the

the availability of the criminal statute. See id. Moreover, Beck’s detailed history indicates that in at least 28 instances,
witnesses who were either threatened with, or actually charged with, contempt of Congress purged their citations by
either testifying or providing documents to the inquiring congressional committees. See id.
125 2 U.S.C. §192 (2012). As a result of congressional classification of offenses, the penalty for contempt of Congress is
a Class A misdemeanor; thus, the $1,000 maximum fine under §192 has been increased to $100,000. See 18 U.S.C.
§§3559, 3571 (2012).
126 2 U.S.C. §194 (2012).
127 See Eberling, supra note 94, at 302-04.
128 H.R. 757, 34th Cong., 3d Sess. (1857).
129 42 CONG. GLOBE. 34th Cong., 3d Sess., 403-04 (1857) (discussing H.R. 757).
130 See id. at 425-26.

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view that Congress did not possess any inherent power to punish for contempt.131 Others argued
that Congress’s inherent contempt powers rendered the proposed bill unnecessary.132 Still other
Members opposed the bill on the grounds that it violated the Fourth and Fifth Amendments of the
Constitution, because it sanctioned unreasonable searches and seizures, compelled persons to
incriminate themselves, and violated the prohibition on persons being punished twice for the
same offense (double jeopardy).133
In response to arguments that such a statute was unnecessary given Congress’s inherent authority
to hold individuals in contempt, supporters made clear that the proposed bill was not intended in
any way to diminish Congress’s inherent contempt authority.134 Rather, supporters of the bill saw
it as designed to give Congress “additional authority, and to impose additional penalties on a
witness who fails to appear before an investigating committee of either House, or who, appearing,
fails to answer any question.”135 The main concern of proponents seems to have been Congress’s
ability to impose adequate punishments for contempts that occur near the end of a session,
especially in the House, where the prevailing view was that the Court’s opinion in Anderson v.
Dunn136 prohibited terms of incarceration that extended beyond the adjournment of a session. 137
With respect to the arguments surrounding the Fourth and Fifth Amendments, supporters asserted
that the bill provided the protection of the judiciary, via a judicial trial, for the potential
contumacious witnesses. Moreover, supporters argued that the bill removed such witnesses “from
the passions and excitement of the Hall—where partisans may frequently, in political questions,
carry into the measures of punishment their party hostilities.”138
The bill was ultimately passed by both the House139 and the Senate.140 According to one
commentator, the bill was adopted for three reasons:
[F]irst, to increase the power of either House of Congress to punish for contempt in cases
of contumacy of witnesses, ... second, to compel criminating testimony. A third reason,
although undoubtedly a minor one, was that the effect of the enactment of this legislation
would be to remove the trial of cases of contempt of either House of Congress from their
respective bars to the courts, where passion and partisanship would not influence the
decision against the prisoner and where he would have a trial by jury and all the other
constitutional safeguards of court proceedings.141

131 See Eberling, supra note 94, at 309.
132 Id. at 311.
133 Id. at 309.
134 42 CONG. GLOBE, 34th Cong., 3d Sess., 404 (1857) (statement of Mr. Orr) (providing that “Some gentlemen say that

the very fact of presenting this bill is an admission that the House has no power upon this subject, and that it negatives
the resolution which we have already adopted, that is, to take [Mr.] Simonton into custody and bring him before the
House to answer for his contempt. No such thing. The power of this House I believe is conceded by all.... ”)
135 Eberling, supra note 94, at 306; see also 42 CONG. GLOBE, 34th Cong., 3d Sess., 405 (1857) (statement of Mr. Orr).
136 See supra notes 50-64 and accompanying text.
137 42 CONG. GLOBE, 34th Cong., 3d Sess., 404 (1857) (statement of Mr. Orr) (stating “[s]uppose that two days before
the adjournment of this Congress there is a gross attempt on the privileges of this House by corrupt means of any
description; then the power of this House extends only to those two days. Is that an adequate punishment? Ought we
not then, to pass a law which will make the authority of the House respected;.... ”).
138 Eberling, supra note 94, at 313 (citing 42 CONG. GLOBE, 34th Cong. 3d Sess., 427 (1857) (statement of Mr. Davis)).
139 42 CONG. GLOBE, 34th Cong., 3d Sess., 433 (1857).
140 Id. at 445.
141 Eberling, supra note 94, at 316.

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Under 2 U.S.C. §192, a person who has been “summoned as a witness” by either House or a
committee thereof to testify or to produce documents and who fails to do so, or who appears but
refuses to respond to questions, is guilty of a misdemeanor, punishable by a fine of up to
$100,000 and imprisonment for up to one year. 2 U.S.C. §194 establishes the procedure to be
followed by the House or Senate if it chooses to refer a recalcitrant witness to the courts for
criminal prosecution rather than try him at the bar of the House or Senate. Under the procedure
outlined in Section 194,142 “the following steps precede judicial proceedings under [the statute]:
(1) approval by committee;143 (2) calling up and reading the committee report on the floor; (3)
either (if Congress is in session) House approval of a resolution authorizing the Speaker to certify
the report to the U.S. Attorney for prosecution, or (if Congress is not in session) an independent
determination by the Speaker to certify the report;144 [and] (4) certification by the Speaker to the
appropriate U.S. Attorney for prosecution.”145
The criminal contempt statute and corresponding procedure are punitive in nature. It is used when
the House or Senate wants to punish a recalcitrant witness and, by doing so, to deter others from
similar contumacious conduct.146 The criminal sanction is not coercive because the witness
generally will not be able to purge himself by testifying or supplying subpoenaed documents after
he has been voted in contempt by the committee and the House or Senate. Consequently, once a
witness has been voted in contempt, he lacks an incentive for cooperating with the committee.
However, although the courts have rejected arguments that defendants had purged themselves,147
in a few instances the House has certified to the U.S. Attorney that further proceedings
concerning contempts were not necessary where compliance with subpoenas occurred after
contempt citations had been voted but before referral of the cases to grand juries.148
Under the statute, after a contempt has been certified by the President of the Senate or the
Speaker, it is the “duty” of the United States Attorney “to bring the matter before the grand jury
for its action.”149 It remains unclear whether the “duty” of the U.S. Attorney to present the
contempt to the grand jury is mandatory or discretionary. The case law that is most relevant to the
question provides conflicting guidance. In Ex parte Frankfeld,150 the District Court for the
District of Columbia granted petitions for writs of habeas corpus sought by two witnesses before
142 The language of §194 does not provide a complete picture of the process. For a more detailed explanation of the

workings of the procedure, reference should be made to the actual practice in the House and Senate. See 4 Deschler’s
Precedents, supra note 93, at §§17-22.
143 In case of a defiance of a subcommittee subpoena, subcommittee approval of the contempt citation precedes
committee action on the matter.
144 See Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966).
145 4 Deschler’s Precedents, supra note 93, at 141. While the quoted description is from the compilation of House
precedents, the same procedure is employed in the Senate, but with the President of the Senate performing the functions
that are the responsibility of the Speaker in cases of contempt of the House.
146 See, e.g., S.Rept. 95-170, 95th Cong., 1st Sess., 97 (1977).
147 United States v. Costello, 198 F.2d 200 (2d Cir. 1952), cert. denied, 344 U.S. 874 (1952); United States v. Brewster,
154 F. Supp. 126 (D.D.C. 1957), rev’d on other grounds, 255 F.2d 899 (D.C. Cir. 1958), cert. denied, 358 U.S. 842
(1958). However, the defendant’s sentence may be suspended where he complies with the committee’s demand
following his conviction. See United States v. Tobin, 195 F. Supp. 588, 617 (D.D.C. 1961).
148 See 4 Deschler’s Precedents, supra note 93, at 521 (witness before the House Committee on Un-American Activities
voluntarily purged himself of his contempt); see also H.Res. 180, 98th Cong. (resolution stating that prosecution of
Anne Gorsuch Burford, Administrator of the Environmental Protection Agency, was not required following
implementation of an agreement granting the House access to documents which had been withheld under a claim of
executive privilege).
149 2 U.S.C. §194 (2012).
150 32 F. Supp. 915 (D.D.C. 1940).

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the House Committee on Un-American Activities. The witnesses were charged with violating 2
U.S.C. §192, and were being held on a warrant based on the affidavit of a committee staff
member.151 The court ordered the witnesses released since the procedure, described as
“mandatory” by the court,152 had not been followed. The court, in dicta, not central to the holding
of the case, observed that Congress prescribed that
when a committee such as this was confronted with an obdurate witness, a willful witness,
perhaps, the committee would report the fact to the House, if it be a House committee, or
to the Senate, if it be a Senate committee, and that the Speaker of the House or the President
of the Senate should then certify the facts to the district attorney.
It seems quite apparent that Congress intended to leave no measure of discretion to either
the Speaker of the House or the President of the Senate, under such circumstances, but
made the certification of facts to the district attorney a mandatory proceeding, and it left no
discretion with the district attorney as to what he should do about it. He is required, under
the language of the statute, to submit the facts to the grand jury.153

Similarly, in United States v. United States House of Representatives,154 a case that involved the
applicability of the Section 192 contempt procedure to an executive branch official, the same
district court observed, again in dicta, that after the contempt citation is delivered to the U.S.
Attorney, he “is then required to bring the matter before the grand jury.”155
Conversely, in Wilson v. United States,156 the United States Court of Appeals for the District of
Columbia Circuit concluded, based in part on the legislative history of the contempt statute and
congressional practice under the law, that the “duty” of the Speaker when certifying contempt
citations to the United States Attorney during adjournments is a discretionary, not a mandatory,
one.157 The court reasoned that despite its mandatory language, the statute had been implemented
in a manner that made clear Congress’s view that, when it is in session, a committee’s contempt
resolution can be referred to the U.S. Attorney only after approval by the parent body. When
Congress is not in session, review of a committee’s contempt citation is provided by the Speaker
or President of the Senate, rather than by the full House or Senate.158 This review of a
committee’s contempt citation, according to the court, may be inherently discretionary in nature,
whereas the prosecutor is simply carrying out Congress’s directions in seeking a grand jury
indictment.159 In Wilson, the defendants’ convictions were reversed because the Speaker had
certified the contempt citations without exercising his discretion.160 From this holding it may be
possible to argue that because the statute uses similar language when discussing the Speaker’s

151 Id. at 916.
152 Id.
153 Id. (emphasis added).
154 United States v. United States House of Representatives, 556 F. Supp. 150, 151 (D.D.C. 1983).
155 But see Ansara v. Eastland, 442 F.2d 751, 754, n.6 (D.C. Cir. 1971) (suggesting that “the Executive Branch ... may

decide not to present ... [a contempt citation] to the grand jury ... ”). The court in Ansara did not expressly consider the
nature of the prosecutor’s duty under 2 U.S.C. §194, nor did it provide any basis for its statement to the effect that the
prosecutor may exercise discretion in determining whether to seek an indictment.
156 369 F.2d 198 (D.C. Cir. 1966).
157 Id. at 201-03.
158 Id. at 203-04.
159 See id.
160 Id. at 205.

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“duty” and the “duty” of the U.S. Attorney, that the U.S. Attorney’s function is discretionary as
well, and not mandatory as other courts have concluded.
Alternatively, despite the similarity in the statutory language, there is an argument that the
functions of the Speaker and the President of the Senate are so different in nature under the
statutory scheme from those of the U.S. Attorney that to conclude that the function of the
prosecutor was intended to be discretionary simply because that is the interpretation given to the
function of the presiding officers is contrary to the understanding and intent of the 1857 Congress
that drafted the language.161 Nevertheless, it should be noted that the courts have generally
afforded U.S. Attorneys broad prosecutorial discretion, even where a statute uses mandatory
language.162 Prosecutorial discretion was the principal basis of the U.S. Attorney’s decision not to
present the grand jury with the contempt citations of Environmental Protection Agency
Administrator Anne Gorsuch Burford in 1982, former White House Counsel Harriet Miers and
White House Chief of Staff Joshua Bolten in 2008, and Attorney General Eric Holder in 2012.163
Finally, while upholding the validity of 2 U.S.C. §§192 and 194, the courts have recognized that
they are criminal provisions and have reversed convictions for contempt where limitations
dictated by the language of the statute itself or the Constitution have been exceeded.164

Civil Enforcement of Subpoenas
Where the use of inherent or criminal contempt is unavailable or unwarranted, Congress may
invoke the authority of the judicial branch in an effort to enforce a congressional subpoena. Civil
enforcement entails a single house or committee of Congress filing suit in federal district court
seeking a declaration that the individual in question is legally obligated to comply with the
congressional subpoena.165 If the court finds that such an obligation exists and issues an order to
that effect, continued non-compliance may result in contempt of court—as opposed to contempt
of Congress.166 Although the Senate has existing statutory authority to pursue such an action,
161 See id. at 201-02.
162 See Confiscation Cases, 74 U.S. (7 Wall.) 454 (1868); see also United States v. Nixon, 418 U.S. 683, 694 (1974);

Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 376 (2d Cir. 1973); Moses v. Kennedy, 219 F. Supp.
762, 765 (D.D.C. 1963), aff ‘d sub. nom., Moses v . Katzenbach, 342 F.2d 931 (D.C. Cir. 1965).
163 See Examining and Reviewing the Procedures That Were Taken by the 0ffice of the U.S. Attorney for the District of
Columbia in Their Implementation of a Contempt Citation that Was Voted by the Full House of Representatives against
the Then-Administrator of the Environmental Protection Agency, Anne Gorsuch Burford, Hearing before the House
Committee on Public Works and Transportation, 98th Cong., 1st Sess., 30 (1983) [hereinafter Burford Contempt
Prosecution Hearing]. The U.S. Attorney also suggested that it would have been inappropriate for him to institute a
criminal suit against Burford while a related civil action brought by the Justice Department against the House was
pending). See Letter from U.S. Attorney Stanley Harris to Speaker Thomas P. O’Neill, December 27, 1982, reprinted
in, H.Rept. 98-323, 98th Cong., 1st Sess., 48-49 (1983); Letter from Attorney General Michael B. Mukasey to Speaker
of the House Nancy Pelosi, February 29, 2008; Letter from Deputy Attorney General James M. Cole to Speaker of the
House John Boehner, June 28, 2012. Of course, as a practical matter, even if the United States Attorney is required to
refer a contempt under 2 U.S.C. §§192, 194 to the grand jury, there is no apparent requirement that the United States
Attorney concur in the prosecution of any subsequent indictment. See FED. R. CRIM. PRO. 7(c); see also United States v.
Cox, 342 F.2d 167 (5th Cir. 1965).
164 See infra notes 279-325 and accompanying text.
165 See, e.g., 2 U.S.C. §288d (2012) (“When directed … the counsel shall bring a civil action … to enforce, to secure a
declaratory judgment concerning the validity of, or to prevent a threatened failure or refusal to comply with, any
subpoena or order issued by the Senate.”).
166 As the statute makes clear, a party refusing to obey the court’s order will be in contempt of the court, not of
Congress itself. See 28 U.S.C. §1365(b).

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there is no corresponding provision applicable to the House.167 However, the House has
previously pursued civil enforcement pursuant to an authorizing resolution.168

Civil Enforcement in the Senate
As an alternative to both the inherent contempt power of each House and the criminal contempt
statutes,169 in 1978 Congress enacted a civil enforcement procedure,170 which is applicable only to
the Senate.171 The statute gives the U.S. District Court for the District of Columbia jurisdiction
over a civil action to enforce, secure a declaratory judgment concerning the validity of, or to
prevent a threatened failure or refusal to comply with, any subpoena or order issued by the Senate
or a committee or subcommittee. Generally such a suit will be brought by the Senate Legal
Counsel, on behalf of the Senate or a Senate committee or subcommittee.172
Pursuant to the statute, the Senate may “ask a court to directly order compliance with [a]
subpoena or order, or they may merely seek a declaration concerning the validity of [the]
subpoena or order. By first seeking a declaration, [the Senate would give] the party an
opportunity to comply before actually [being] ordered to do so by a court.”173 It is solely within
the discretion of the Senate whether or not to use such a two-step enforcement process.174
Regardless of whether the Senate seeks the enforcement of, or a declaratory judgment
concerning, a subpoena, the court will first review the subpoena’s validity.175 If the court finds
that the subpoena “does not meet applicable legal standards for enforcement,” it does not have
jurisdiction to enjoin the congressional proceeding. Because of the limited scope of the
jurisdictional statute and because of Speech or Debate Clause immunity for congressional
investigations,176 “[w]hen the court is petitioned solely to enforce a congressional subpoena, the
court’s jurisdiction is limited to the matter Congress brings before it, that is whether or not to aid
167 2 U.S.C. §§288b(b), 288d, 1365.
168 See “The Bolten and Miers Contempt: Committee on the Judiciary v. Miers” infra.
169 The inadequacies of the inherent and criminal contempt procedures had been recognized by the Congress itself, the

courts, and by students of the subject. See, e.g., Representation of Congress and Congressional Interests In Court,
Hearings before the Senate Judiciary Subcommittee on Separation of Powers, 94th Cong, 2d Sess., 556-68 (1976);
United States v. Fort, 443 F.2d 670, 677-78 (D.C. Cir. 1970), cert. denied, 403 U.S. 932 (1971); Tobin v. United States,
306 F.2d 270, 275-76 (D .C. Cir. 1962), cert. denied, 371 U.S. 902 (1962); Sky, supra note 83.
170 Ethics in Government Act of 1978, P.L. 95-521, §§703, 705, 92 Stat. 1877-80 (1978) (codified as amended at 2
U.S.C. §§288b(b) 288d, and 28 U.S.C. §1365 (2012)).
171 The conference report accompanying the legislation which established the procedure explained that the relevant
House committees had not yet considered the proposal for judicial enforcement of House subpoenas. H.Rept. 95-1756,
95th Cong., 2d Sess., 80 (1978).
172 Although the Senate or the committee may be represented by any attorney designated by the Senate, in most cases
such an action will be brought by the Senate Legal Counsel after an authorizing resolution has been adopted by the
Senate. 2 U.S.C. §288b(b) (2012). See 28 U.S.C. §1365(d) (2012). A resolution directing the Senate Legal Counsel to
bring an action to enforce a committee or subcommittee subpoena must be reported by a majority of the members
voting, a majority being present, of the full committee. The report filed by the committee must contain a statement of
(a) the procedure employed in issuing the subpoena; (b) any privileges or objections raised by the recipient of the
subpoena; (c) the extent to which the party has already complied with the subpoena; and (d) the comparative
effectiveness of the criminal and civil statutory contempt procedures and a trial at the bar of the Senate. 2 U.S.C.
§288(c) (2012).
173 S.Rept. 95-170, 95th Cong., 1st Sess., 89 (1977).
174 Id. at 90.
175 Id. at 4.
176 See U.S. CONST. art. 1, §6, cl. 3.

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Congress in enforcing the subpoena or order.”177 If the individual still refuses to comply, he may
be tried by the court in summary proceedings for contempt of court,178 with sanctions being
imposed to coerce their compliance.179
Without affecting the right of the Senate to institute criminal contempt proceedings or to try an
individual for contempt at the bar of the Senate,180 this procedure gives the Senate the option of a
civil action to enforce a subpoena.181 Civil enforcement might be employed when the Senate is
more concerned with securing compliance with the subpoena or with clarifying legal issues than
with punishing the contemnor. Unlike criminal contempt, in a civil enforcement, sanctions
(imprisonment and/or a fine) can be imposed until the subpoenaed party agrees to comply thereby
creating an incentive for compliance; namely, the termination of punishment. 182
In addition, the civil enforcement process is arguably more expeditious than a criminal
proceeding, where a court may more closely scrutinize congressional procedures and give greater
weight to the defendant’s constitutional rights. The civil enforcement procedure also provides an
element of flexibility, allowing the subpoenaed party to raise possible constitutional and other
defenses (e.g., the privilege against self-incrimination, lack of compliance with congressional
177 S.Rept. 95-170, 95th Cong., 1st Sess., 94 (1977).
178 See id. at 41, 92. It is also worth noting that the Senate has in place a standing order, adopted in 1928, that appears to

provide the authority, independent of the civil enforcement statute, for a committee to seek a court order to enforce its
subpoenas. The standing order states that
Resolved, That hereafter any committee of the Senate is hereby authorized to bring suit on behalf
of and in the name of the United States in any court of competent jurisdiction if the committee is of
the opinion that the suit is necessary to the adequate performance of the powers vested in it or the
duties imposed upon it by the Constitution, resolution of the Senate, or other law. Such suit may be
brought and prosecuted to final determination irrespective of whether or not the Senate is in session
at the time the suit is brought or thereafter. The committee may be represented in the suit either by
such attorneys as it may designate or by such officers of the Department of Justice as the Attorney
General may designate upon the request of the committee. No expenditures shall be made in
connection with any such suit in excess of the amount of funds available to the said committee. As
used in this resolution, the term “committee’’ means any standing or special committee of the
Senate, or any duly authorized subcommittee thereof, or the Senate members of any joint
committee.
See S. Jour. 572, 70-1, May 28, 1928. It is unclear what effect, if any, the passage of the civil enforcement procedure in
1978 has had on this Standing Order. The Standing Order appears to have never been invoked and, therefore, its
validity remains an open question.
179 28 U.S.C. §1365(b) (2012).
180 Not only do the inherent and criminal contempt procedures remain available as an alternative to the civil
enforcement mechanism, but the legislative history indicates that the civil and criminal statutes could both be employed
in the same case. “Once a committee investigation has terminated, a criminal contempt of Congress citation under 2
U.S.C. §192 might still be referred to the Justice Department if the Congress finds this appropriate. Such prosecution
for criminal contempt would present no double jeopardy problem.” S.Rept. 95-170, 95th Cong., 1st Sess., 95 (citations
omitted); see also Hearings Before the Senate Committee on Governmental Affairs on S. 555, 95th Cong., 1st Sess.,
798-800 (1977) [hereinafter Civil Contempt Hearing].
181 For a more detailed analysis of the civil enforcement procedure and a comparison with the other options available to
the Senate when faced with a contempt, See S.Rept. 95-170, 95th Cong., 1st Sess., 16-21, 40-41, 88-97 (1977); see also
123 CONG. REC. 20,956-21,019 (June 27, 1977).
182 The act specifies that “an action, contempt proceeding, or sanction.... shall not abate upon adjournment sine die by
the Senate at the end of a Congress if the Senate or the committee or subcommittee ... certifies to the court that it
maintains its interest in securing the documents, answers, or testimony during such adjournment.” 28 U.S.C. §1365(b)
(2012). In the first case brought under the new procedure, the witness unsuccessfully argued that the possibility of
“indefinite incarceration” violated the due process and equal protection provisions of the Constitution, and allowed for
cruel and unusual punishment. Application of the U.S. Senate Permanent Subcommittee on Investigations, 655 F.2d
1232 (D.C. Cir. 1981), cert. denied, 454 U.S. 1084 (1981).

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procedures, or an inability to comply with the subpoena)183 without risking a criminal
prosecution.
Civil enforcement, however, has limitations. Most notable is that the statute granting jurisdiction
to the courts to hear such cases is, by its terms, inapplicable in the case of a subpoena issued to an
officer or employee of the federal government acting in their official capacity.184 Enacted as part
of the Ethics in Government Act of 1978, early drafts of the civil enforcement statute did not
include an exception for federal government officers and employees acting within the scope of
their duties. It appears that the section was drafted primarily in response to the District Court’s
dismissal, for lack of jurisdiction, of an Ervin Committee’s request for a declaratory judgment
regarding the lawfulness of its subpoena of President Nixon’s tape recordings.185 Thus, one of the
purposes of the statute was to expressly confer jurisdiction upon courts to determine the validity
of congressional requests for information.
During the course of the debates regarding this legislation, the executive branch strongly opposed
conferring jurisdiction upon the federal courts to decide such sensitive issues between Congress
and the executive branch. Testifying before a subcommittee of the Senate Committee on
Governmental Operations, then-Assistant Attorney General Antonin Scalia argued that weighing
the legislature’s need for information against the executive’s need for confidentiality is “the very
type of ‘political question’ from which ... the courts [should] abstain.”186 In response, Congress
amended the proposed legislation excluding from its scope federal officers and employees acting
in their official capacity. However, as noted in a report from the House Judiciary Committee in
1988, the exclusion was to apply only in cases in which the President had directed the recipient of
the subpoena not to comply with its terms.187
Since the civil enforcement statute’s enactment in 1979, it appears that the Senate has authorized
the Office of Senate Legal Counsel to seek civil enforcement of a subpoena for documents or
testimony at least six times.188 Notably, it appears that none of these civil enforcement actions has
been brought against executive branch officials. Nevertheless, the Senate has successfully
enforced its subpoena authority with respect to non-governmental officials. Most recently, on
March 17, 2016, the Senate passed a resolution authorizing civil enforcement of a subpoena
183 S.Rept. 95-170, 95th Cong., 1st Sess., 93.
184 28 U.S.C. §1365(a) (2012). The statutory exception was explained in the Senate’s Report as follows:

This jurisdictional statute applies to a subpoena directed to any natural person or entity acting under
color of state or local authority. By the specific terms of the jurisdictional statute, it does not apply
to a subpoena directed to an officer or employee of the Federal Government acting within his
official capacity. In the last Congress there was pending in the Committee on Government
Operations legislation directly addressing the problems associated with obtaining information from
the executive branch. (See S. 2170, “The Congressional Right to Information Act”). This exception
in the statute is not intended to be a congressional finding that the federal courts do not now have
the authority to hear a civil action to enforce a subpoena against an officer or employee of the
federal government. However, if the federal courts do not now have this authority, this statute does
not confer it.
S.Rept. 95-170, 95th Cong., 1st Sess., 91-92
185 See Senate Select Committee on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51 (D.D.C. 1973).
186 Executive Privilege-Secrecy in Government: Hearings Before the Subcomm. on Intergovernmental Relations of the
Senate Comm. on Government Operations, 94th Cong., 1st Sess., 117 (1975).
187 Clarifying the Investigatory Powers of the United States Congress, H.Rept. 100-1040, 100th Cong. 2d Sess., 2
(1988).
188 See S.Res. 502, 96th Cong. (1980); S.Res. 293, 98th Cong. (1984); S.Res. 162, 101st Cong. (1989); S.Res. 153, 103rd
Cong. (1993); S.Res. 199, 104th Cong. (1995); S.Res. 377, 114th Cong. (2016).

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against Carl Ferrer, the Chief Executive Officer of Backpage.com, a website for classified
advertisements.189 The Senate, in conjunction with an investigation into sex trafficking on the
Internet, had sought the production of documents concerning the company’s advertisements for
commercial sex services.190 On August 5, 2016, the U.S. District Court for the District of
Columbia rejected Mr. Ferrer’s arguments that the subpoena violated his First Amendment rights,
and the court granted the Senate’s application for enforcement of the subpoena.191 Thus, although
used infrequently, the Senate’s statutory authority to seek civil enforcement of a subpoena has
remained a powerful tool of its investigatory functions.

Civil Enforcement in the House of Representatives
While the House of Representatives cannot pursue actions under the Senate’s civil enforcement
statute discussed above, past precedent and the decision of the U.S. District Court for the District
of Columbia in Committee on the Judiciary v. Miers suggest that the House may authorize a
committee to seek a civil enforcement action to force compliance with a subpoena.192 Prior to
Miers—which represented the first congressional attempt to seek civil enforcement of a subpoena
in federal court authorized solely by resolution of a single house—a number of threshold
questions, including whether the federal courts would have jurisdiction over such a claim,
remained unresolved.
The jurisdiction of the federal district courts, where a civil action for enforcement of a
congressional subpoena would be brought, is derived from both Article III of the Constitution and
federal statute. Article III states, in relevant part, that “[t]he judicial Power shall extend to all
Cases, in Law and Equity, arising under this Constitution, the Laws of the United States.... ”193
The Supreme Court has interpreted the language “arising under” broadly, essentially permitting
federal jurisdiction to be found whenever federal law “is a potentially important ingredient of a
case.”194 Conversely, the federal question jurisdiction statute, first enacted in 1875,195 while
containing almost identical language to Article III, has been interpreted by the Court to be much
narrower in scope. As the Court explained in Verlinden B.V. v. Central Bank of Nigeria,
Although the language of 1331 parallels that of the “Arising Under” Clause of Art. III, this
Court never has held that statutory “arising under” jurisdiction is identical to Art. III
“arising under” jurisdiction. Quite the contrary is true ... [T]he many limitations which have
been placed on jurisdiction under 1331 are not limitations on the constitutional power of
Congress to confer jurisdiction on the federal courts ... Art. III “arising under” jurisdiction
is broader than federal-question jurisdiction under 1331.... ”196

189 S.Res. 377, 114th Cong. (2016).
190 S.Rept. 114-214 (2016).
191 Senate Permanent Subcomm. v. Ferrer, 199 F. Supp. 3d 125 (D.D.C. 2016). On August 9, 2016, Mr. Ferrer appealed

the district court’s decision to the U.S. Court of Appeals for the District of Columbia Circuit (D.C.Circuit). Senate
Permanent Subcomm. v. Ferrer, No. 16-5232 (D.C. Cir. filed Aug. 11, 2016). The D.C. Circuit heard oral argument in
Mr. Ferrer’s appeal on March 3, 2017. Id.
192 558 F. Supp. 2d 53 (D.D.C. 2008).
193 U.S. CONST. art. III, §2, cl. 1.
194 See ERWIN CHEMERINSKY, FEDERAL JURISDICTION, 264 (3d Ed. 1999) (citing Osborn v. Bank of the United States, 22
U.S. (9 Wheat.) 738 (1824)).
195 See Act of March 3, 1875, ch. 137, 18 Stat. 470 (codified as amended at 28 U.S.C. §1331 (stating that “[t]he district
courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United
States.”)).
196 Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 494-95 (1983) (internal quotation marks and citations

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The fact that the statutory jurisdiction provided by Congress is narrower than the Constitution’s
grant of judicial power may give rise to an argument that the statutory grant of jurisdiction cannot
be used by the House should it merely adopt a resolution authorizing a subpoena enforcement
proceeding to be brought in court. Following this argument to its conclusion might suggest that
both houses of Congress must pass a law, signed by the President, which authorizes a civil
enforcement action to be brought in federal district court because a mere one-house resolution
will not suffice to provide such jurisdiction. However, the limited precedent from the Supreme
Court and other federal courts, especially the federal district court decision in Committee on the
Judiciary v. Miers, may be read to suggest that the current statutory basis is sufficient to establish
jurisdiction for a civil action of the type contemplated here if the representative of the
congressional committee is specifically authorized by a house of Congress to act.
In 1928, the Supreme Court decided Reed v. The County Commissioners of Delaware County,
Pennsylvania,197 which involved a special committee of the United States Senate charged, by
Senate resolution, with investigating the means used to influence the nomination of candidates for
the Senate.198 The special committee was authorized to “require by subpoena or otherwise the
attendance of witnesses, the production of books, papers, and documents, and to do such other
acts as may be necessary in the matter of said investigation.”199 During the course of its
investigation into the disputed election of William B. Wilson of Pennsylvania to the Senate, the
committee sought to obtain the “boxes, ballots, and other things used in connection with the
election.”200 The County Commissioners, who were the legal custodians of said materials, refused
to provide them to the committee, thus necessitating the lawsuit. The Supreme Court, after
affirming the powers of the Senate to “obtain evidence related to matter committed to it by the
Constitution”201 and having “passed laws calculated to facilitate such investigations,”202
nevertheless held that it was without jurisdiction to decide the case. The Senate had relied on the
resolution’s phrase “such other acts as may be necessary” to justify its authority to bring such a
suit. According to the Court, however, that phrase “may not be taken to include everything that
under any circumstances might be covered by its words.”203 As a result, the Court held that “the
Senate did not intend to authorize the committee, or anticipate that there might be need, to invoke
the power of the Judicial Department. Petitioners are not ‘authorized by law to sue.’”204 The
Court in Reed made no mention of the jurisdictional statute that existed at the time. Rather, the
Court appears to have relied on the fact that the Senate did not specifically authorize the
committee to sue; therefore, absent particular language granting the power to sue in court, there
can be no basis for judicial jurisdiction over such a suit.205 Read in this manner, Reed appears to
suggest that had the Senate resolution specifically mentioned the power to sue, the Court may
have accepted jurisdiction and decided the case on its merits. Such a reading of Reed is supported

omitted).
197 277 U.S. 376 (1928).
198 Id. at 378 (citing S. Res. 195, 69th Cong., 1st Sess. (1926)).
199 Id. at 378-79.
200 Id. at 387.
201 Id. at 388 (citing McGrain v. Daugherty, 273 U.S. 135, 160-174 (1927)).
202 Id. (citing R.S. §§101-104, (codified as amended at 2 U.S.C. §§192, 194 (2012))).
203 Id. at 389.
204 Id.
205 It appears that the Court’s decision in Reed prompted the Senate to adopt its Standing Order.

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by a recent district court ruling involving the question of whether Congress authorized judicial
enforcement of Member demands for information from executive branch agencies.
In Waxman v. Thompson, a 2006 opinion of th

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3ARL34097. Public record. Not legal advice.