Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: A Sketch

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Congress’s Contempt Power and the

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RL34114

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: A Sketch

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, 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 noncompliance 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 noncompliance

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 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 Congress’s contempt power, analyzes the procedures

associated with inherent contempt, criminal contempt, and the civil enforcement of subpoenas,

and discusses the obstacles that face Congress in enforcing a contempt action against an executive

branch official. A more fully developed and detailed version of this report, complete with sources

and references, can be found at CRS Report RL34097, Congress’s Contempt Power and the

Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, by (name

redacted) and (name redacted).

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Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: A Sketch

Contents

Introduction...................................................................................................................................... 1

Congress’s Power to Investigate ...................................................................................................... 2

Inherent Contempt ........................................................................................................................... 4

Statutory Criminal Contempt ........................................................................................................... 6

Civil Enforcement of Subpoenas ..................................................................................................... 9

Civil Enforcement in the Senate .............................................................................................. 10

Civil Enforcement in the House of Representatives ................................................................ 11

Implementation of a Contempt Resolution or a Civil Enforcement Action Against an

Executive Branch Official .......................................................................................................... 13

Contacts

Author Contact Information........................................................................................................... 16

Acknowledgments ......................................................................................................................... 16

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Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: A Sketch

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, 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 noncompliance 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 noncompliance 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 noncompliance may result in the party being held in

contempt of court. Where the target of the subpoena is an executive branch official, civil

See generally, RONALD L. GOLDFARB, THE CONTEMPT POWER (2d ed., Anchor Books 1971).

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.

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. Section 1001 (false statements), 18 U.S.C. Section 1621 (perjury), and 18 U.S.C. Section 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).

With respect to subpoenas issued against the executive branch, Congress may utilize other powers, including the

imposition of funding restrictions, to coerce compliance.

See infra “Inherent Contempt.”

2 U.S.C. §§192, 194.

See infra “Statutory Criminal Contempt.”

See infra “Civil Enforcement of Subpoenas.”

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Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: A Sketch

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 Congress’s contempt power, analyzes the procedures

associated with inherent contempt, criminal contempt, and the civil enforcement of subpoenas,

and discusses the obstacles that face Congress in enforcing a contempt action against an executive

branch official. A more fully developed and detailed version of this report, complete with sources

and references, can be found at CRS Report RL34097, Congress’s Contempt Power and the

Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, by (name

redacted) and (name redacted).

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 1920s Teapot Dome

scandal.

In McGrain v. Daugherty, 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.”12 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

See infra “Implementation of a Contempt Resolution or a Civil Enforcement Action Against an Executive Branch

Official.”

See generally Allen B. Moreland, Congressional Investigations and Private Persons, 40 SO. CAL. L. REV. 189

(1967).

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. 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.”).

273 U.S. 135, 174-75 (1927).

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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

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 farreaching 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 legislature’s 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

Id.

279 U.S. 263 (1929).

Id. at 290.

Id. at 295.

Id.

421 U.S. 491, 504, n. 15 (1975) (quoting Barenblatt, 360 U.S. at 111).

354 U.S. 178, 187 (1957).

Id.

Id. at 182.

Id. at 194-95.

Id. at 200 n. 33; see also Morrison v. Olson, 487 U.S. 654, 694 (1988) (noting that Congress’s role under the

(continued...)

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Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: A Sketch

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 Anderson v. Dunn24 and reiterated in

McGrain v. Daugherty.25 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.26 The purpose of the imprisonment or other sanction

may be either punitive27 or coercive.28 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 challenged in Anderson 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-atArms; 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.29

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.30 In such a habeas

proceeding, the issues decided by the court might be limited to (a) whether the House or Senate

(...continued)

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, 273 U.S. at 174.

19 U.S. (6 Wheat) 204 (1821).

273 U.S. 135 (1927).

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 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 Government of

the United States.”).

Jurney, 294 U.S. at 147.

McGrain, 273 U.S. at 161.

Thomas L. Shriner Jr., Legislative Contempt and Due Process: The Groppi Cases, 46 IND. L. J. 480, 490-91 (1971).

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, 31 GEO. WASH.

L. REV. 399, 400, n.3 (1962).

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acted in a manner within its jurisdiction,31 and (b) whether the contempt proceedings complied

with minimum due process standards.32 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.33 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.

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 inherent

authority that courts have to impose fines for contemptuous behavior,34 it appears possible to

argue that Congress, in its exercise of a similar inherent function, could impose fines as opposed

to incarceration. Support for this argument appears to be contained in dicta from the 1821

Supreme Court decision in Anderson. 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.35

Moreover, 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.... ”36 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 or any other 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,

Jurney, 294 U.S. at 147; see also Kilbourn v. Thompson, 103 U.S. 168, 196 (1880); Ex Parte Nugent, 18 F. 471

(D.D.C. 1848).

Groppi v. Leslie, 404 U.S. 496 (1972).

Id.

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).

Anderson, 19 U.S. (6 Wheat.) at 230-31 (1821) (emphasis added).

Kilbourn, 103 U.S. at 190 (emphasis added).

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compared to the plenary review accorded by the courts in cases of conviction under the criminal

contempt statute.

There are, however, certain limitations of 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.37 Moreover, inherent contempt has been

described as “unseemly,” cumbersome, time-consuming, and relatively ineffective, especially for

a modern Congress with a heavy legislative workload, which would be interrupted by a trial at the

bar.38 Because of these drawbacks, the inherent contempt process has not been used by either

body since 1935.39 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—

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,40 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.41

Statutory Criminal Contempt

Between 1795 and 1857, 14 inherent contempt actions were initiated by the House and Senate, 8

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.42 In 1857, a statutory criminal contempt procedure was

enacted,43 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

Watkins, 354 U.S. at 207, n.45; Anderson, 19 U.S. (6 Wheat.) at 231.

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).

4 DESCHLER’S PRECEDENTS OF THE U.S. HOUSE OF REPRESENTATIVES, ch. 15, §17, 139 n.7 (1977) (hereinafter

Deschler’s Precedents).

See CARL BECK, CONTEMPT OF CONGRESS: A STUDY OF THE PROSECUTIONS INITIATED BY THE COMMITTEE ON UNAMERICAN ACTIVITIES, 1945-1957 4 (1959) (hereinafter Beck); ERNEST J. EBERLING, CONGRESSIONAL INVESTIGATIONS

289 (1928) (hereinafter Eberling).

For example, in 1865, the House appointed a select committee to inquire 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.

See Eberling, supra note 40, at 302-16.

Act of January 24, 1857, c. 19 §3, 11 Stat. 156 (1857) (codified as amended at 2 U.S.C. §§192, 194 (2000)). The

constitutionality of the statute was upheld by the Supreme Court in 1897. See In re Chapman, 166 U.S. 661 (1897).

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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.44 With

only minor amendments, those statutory provisions are codified today as 2 U.S.C. Sections 192

and 194.

Under 2 U.S.C. Section 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. Section 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 194,45

the following steps precede judicial proceedings under [the statute]: (1) approval by

committee;46 (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;47 [and] (4) certification by the Speaker to

the appropriate U.S. Attorney for prosecution.48

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, deter others from

similar contumacious conduct.49 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,50

in a few instances the House has certified to the U.S. Attorney that further proceedings

Beck, supra note 40 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

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.

The language of Section 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 39, at §§17-22.

In case of a defiance of a subcommittee subpoena, subcommittee approval of the contempt citation precedes

committee action on the matter.

See Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966).

4 Deschler’s Precedents, supra note 39, at p. 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.

See, e.g., S.Rept. 95-170, 95th Cong., 1st Sess., 97 (1977).

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).

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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.51

Under the statute, after a contempt has been certified by the President of the Senate or the

Speaker, it is the “duty” of the U.S. Attorney “to bring the matter before the grand jury for its

action.”52 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,53 the District Court for the District of

Columbia granted petitions for writs of habeas corpus sought by two witnesses before the House

Committee on Un-American Activities. The witnesses were charged with violating 2 U.S.C.

Section 192, and were being held on a warrant based on the affidavit of a committee staff

member.54 The court ordered the witnesses released since the procedure, described as

“mandatory” by the court,55 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.56

Similarly, in United States v. United States House of Representatives,57 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.”58

Conversely, in Wilson v. United States,59 the U.S. 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

See 4 Deschler’s Precedents, supra note 39, ch. 15, 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).

2 U.S.C. §194 (2000).

32 F.Supp 915 (D.D.C. 1940).

Id. at 916.

Id.

Id. (emphasis added).

United States v. United States House of Representatives, 556 F. Supp. 150, 151 (D.D.C. 1983).

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. Section 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.

369 F.2d 198 (D.C. Cir. 1966).

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citations to the U.S. Attorney during adjournments is a discretionary, not a mandatory, one.60 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.61 This review of a committee’s contempt citation,

according to the court, may be inherently discretionary in nature.62 In Wilson, the defendants’

convictions were reversed because the Speaker had certified the contempt citations without

exercising his discretion.63 From this holding it may be possible to argue that because the statute

uses similar language when discussing the Speaker’s “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.

Nevertheless, it should be noted that the courts have generally afforded U.S. Attorneys broad

prosecutorial discretion, even where a statute uses mandatory language.64

Civil Enforcement of Subpoenas

Where the use of inherent or criminal contempt is unavailable or unwarranted, Congress may

appeal to 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.65 If the court finds that such an obligation exists and issues an order to

that effect, continued noncompliance may result in contempt of court—as opposed to contempt of

Congress.66 Although the Senate has existing statutory authority to pursue such an action, there is

Id. at 201-03.

Id. at 203-04.

See id.

Id. at 205.

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). Prosecutorial discretion

was the principal basis of the decision of the U.S. Attorney not to present to the grand jury 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 Josh Bolten in 2008, and Attorney General Eric Holder in 2012. 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 U.S. Attorney is required to refer a contempt under 2 U.S.C.

Sections 192, 194 to the grand jury, there is no apparent requirement that the U.S. 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).

See, e.g., 2 U.S.C. §288d (“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.”).

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. 28 U.S.C. §1364(b).

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no corresponding provision applicable to the House.67 However, the House has previously

pursued civil enforcement pursuant to an authorizing resolution.68

Civil Enforcement in the Senate

As an alternative to both the inherent contempt power of each house and the criminal contempt

statutes,69 in 1978 Congress enacted a civil enforcement procedure,70 which is applicable only to

the Senate.71 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.72

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.”73 It is solely within

the discretion of the Senate whether or not to use such a two-step enforcement process.74

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.75 Because of the limited scope of

the jurisdictional statute and the Speech or Debate Clause immunity for actions taken as part of

congressional investigations,76 “when 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

2 U.S.C. §§288b(b), 288d, and 1365.

See infra “Civil Enforcement in the House of Representatives.”

The inadequacies of the inherent and criminal contempt procedures have 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); Fort,

443 F.2d at 677-78; Tobin v. United States, 306 F.2d 270, 275-76 (D .C. Cir. 1962), cert. denied, 371 U.S. 902 (1962);

Sky, supra note 30.

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 (2000)).

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).

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); see 28 U.S.C. §1364(d). 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).

S.Rept. 95-170, 95th Cong., 1st Sess., 89 (1977).

Id. at 90.

Id. at 4.

See U.S. CONST. Art. 1, §6, cl. 3. For more information about the Speech or Debate Clause, see CRS Report R42648,

The Speech or Debate Clause: Constitutional Background and Recent Developments, by (name redacted) and (name

redacted).

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whether or not to aid Congress in enforcing the subpoena.”77 Even 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. The court can only refuse to issue an order

instructing compliance with the subpoena. However, if the court does order compliance with the

subpoena and the individual still refuses to comply, he may be tried by the court in summary

proceedings for contempt of court,78 with sanctions being imposed to coerce his compliance.79

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.80

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 suggests that the House may authorize a committee to

seek a civil enforcement action to force compliance with a subpoena.81 The 2008 dispute over the

refusal of former White House Counsel Harriet Miers to testify in connection to a House

Judiciary Committee investigation into the resignations of nine U.S. Attorneys represented the

S.Rept. 95-170, 95th Cong., 1st Sess., 94 (1977).

See S.Rept. 95-170, 95th Cong., 1st Sess., 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.

28 U.S.C. §1364(b).

28 U.S.C. §1364(a). 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.

558 F. Supp. 2d 53 (D.D.C. 2008).

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first congressional attempt to seek civil enforcement of a subpoena in federal court authorized

solely by resolution of a single house. Prior to this case, a number of threshold questions,

including whether the federal courts would have jurisdiction over such a claim, remained

unresolved. However, following the federal district court decision in Committee on the Judiciary

v. Miers, it appears that the current statutory basis is sufficient to establish jurisdiction for a civil

action of the type contemplated if the representative of the congressional committee is

specifically authorized by a house of Congress to act.

In 2012, the House again authorized a congressional committee to pursue a civil action in federal

court to enforce a subpoena issued to an executive branch official. On June 28, 2012, in addition

to holding Attorney General Eric Holder in contempt of Congress for his failure to comply fully

with subpoenas issued pursuant to the House Oversight and Government Reform Committee

investigation of Operation Fast and Furious, the House also approved a resolution authorizing the

committee to initiate a civil lawsuit on behalf of the committee to enforce the outstanding

subpoenas.82 The lawsuit, which seeks a declaratory judgment directing the Attorney General to

comply with the committee subpoenas, was filed on August 13, 2012.83 On September 30, 2013,

the court issued its opinion rejecting the Department of Justice’s (DOJ’s) motion to dismiss based

on jurisdictional and justiciability arguments.84 The court largely adopted the reasoning laid out in

Miers, in a detailed discussion that addressed federal court jurisdiction, standing, causes of action,

and separation-of-powers concerns. Since that decision, the court has denied motions for

summary judgment from both parties and ordered the DOJ to provide the court with a list of

documents withheld that describes why each document is privileged and protected from

disclosure.85 The court has yet to reach the merits of the executive privilege question.

Following Miers and Holder, it appears that all that is legally required for House committees, the

House General Counsel, or a House-retained private counsel to seek civil enforcement of

subpoenas or other orders is that authorization be granted by resolution of the full House.86

Absent such authorization, it appears that the courts will not entertain civil motions of any kind

on behalf of Congress or its committees.87 While some may still argue that a measure passed by

both houses and signed by the President conferring jurisdiction is required, it appears that—at

least with respect to claims filed in the U.S. District Court for the District of Columbia—if an

authorizing resolution by the House can be obtained, there is a likelihood that the court will find

no legal impediment to seeking civil enforcement of subpoenas or other committee orders.88

See H.Res. 711, 112th Cong. (2012) (holding Attorney General Holder in contempt of Congress); H.Res. 706, 112th

Cong. (2012) (authorizing Chairman Issa to initiate judicial proceeding to enforce the committee subpoena).

Complaint, Committee on Oversight and Government Reform v. Holder, No. 1:12-cv-1332 (D.D.C. August 13,

2012), available at http://images.politico.com/global/2012/08/housevholdercomp.pdf.

Comm. on Oversight and Gov’t Reform, U.S. House of Representatives v. Holder, 2013 U.S. Dist. LEXIS 140994

(D.D.C. 2013) available at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2012cv1332-52.

For a discussion of the district court’s order and its relevance to the distinctions drawn in Espy between the

deliberative process privilege and the presidential communications privilege, see CRS Report WSLG1109, Three

Parties, Two Cases, One Set of Documents; Not a Fast and Furious Resolution, by (name redacted) and (name redacted).

Although Miers was the first judicial opinion discussing the merits of federal court jurisdiction over a civil suit to

enforce a subpoena, it should be noted that its precedential value is limited to that which is traditionally accorded a

district court decision.

The absence of a House Resolution may also raise questions about whether the plaintiffs have standing to see. For

more information, see CRS Report R42454, Congressional Participation in Article III Courts: Standing to Sue, by

(name redacted) and (name redacted).

Relatedly, the Department of Justice (DOJ) has, on numerous occasions, including most recently in 1996, suggested

(continued...)

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Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: A Sketch

Implementation of a Contempt Resolution or a

Civil Enforcement Action Against an

Executive Branch Official

Although the DOJ appears to have acknowledged that properly authorized procedures for seeking

civil enforcement provide the preferred method of enforcing a subpoena directed against an

executive official,89 the executive branch has consistently taken the position that Congress cannot,

as a matter of statutory or constitutional law, invoke either its inherent contempt authority or the

criminal contempt of Congress procedures90 against an executive branch official acting on

instructions by the President to assert executive privilege in response to a congressional

subpoena. Under such circumstances, the Attorney General has previously directed the U.S.

Attorney to refrain from pursuing a criminal contempt prosecution under 2 U.S.C. Sections 192,

194.91 This view is most fully articulated in two opinions by the DOJ’s Office of Legal Counsel

(OLC) from the mid-1980s,92 and further evidenced by actions taken by the DOJ in the contempt

proceedings against Environmental Protection Agency Administrator Anne Gorsuch Burford,

former White House Counsel Harriet Miers, White House Chief of Staff Josh Bolten, and

Attorney General Eric Holder.93 In each case the House approved a contempt citation against the

(...continued)

that committees of Congress resolve inter-branch disputes involving the enforcement of subpoenas by civil proceeding

in federal court. See, e.g., H.Rept. 104-598, 104th Cong., 2d Sess., 63 (1996) (additional views of Hon. William F.

Clinger Jr.) (stating that “I am astonished at hearing this recommendation by a Democrat President when the contemnor

is a Democrat after knowing that the concept of a civil remedy has been so resoundingly rejected by previous Democrat

Congresses when the contemnor was a Republican.”); 10 Op. O.L.C., 68, 87-89 (1986) (suggesting that “the courts may

be willing to entertain a civil suit brought by the House to avoid any question about the possible applicability of the

criminal contempt provisions of [2 U.S.C.] §§192 and 194.”); 8 Op. O.L.C., 101, 139, n.40 (1984) (stating that “[t]he

use of criminal contempt is especially inappropriate ... because Congress has the clearly available alternative of civil

enforcement proceedings.”).

See Prosecution for the Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of

Executive Privilege, 8 Op. Off. Legal Counsel 101 (1984) (hereinafter Olson Memo) (“Congress could obtain a judicial

resolution of the underlying privilege claim and vindicate its asserted right to obtain any documents by a civil action for

enforcement of a congressional subpoena.”); see also Response to Congressional Requests for Information Regarding

Decisions Made Under the Independent Counsel Act, 10 Op. Off. Legal Counsel 68 (1986) (hereinafter Cooper Memo)

(“although the civil enforcement route has not been tried by the House, it would appear to be viable option.”);

Committee on the Judiciary v. Miers, 558 F. Supp.2d 53, 76 (D.D.C. July 31, 2008) (“OLC rather emphatically

concluded that a civil action would be the least controversial way for Congress to vindicate its investigative

authority.”). The DOJ may, however, continue to argue that the federal courts lack jurisdiction to hear a civil

enforcement case when the suit is authorized solely by a House resolution.

2 U.S.C. §§192, 194.

Miers, 558 F. Supp. 2d at 64 (“The Attorney General then directed the U.S. Attorney not to proceed against Ms.

Miers and Mr. Bolten.”).

See Olson Memo, supra note 89; Cooper Memo, supra note 89.

See, e.g., Memorandum for the Counsel to the President, Fred F. Fielding, from Stephen G. Bradbury, Principal

Deputy Attorney General, Office of Legal Counsel, Immunity of Former Counsel to the President from Compelled

Congressional Testimony, July 10, 2007; Letter to George T. Manning, Counsel for Ms. Harriet Miers, from Fred F.

Fielding, Counsel to the President, July 10, 2007 (directing Ms. Miers not to appear before the House Judiciary

Committee in response to a subpoena); Letter to House Judiciary Committee Chairman John Conyers Jr. from George

T. Manning, Counsel for Ms. Harriet Miers, July 17, 2007 (explaining legal basis for Ms. Miers’s refusal to appear);

Letter from James M. Cole, Deputy Attorney General, to John Boehner, Speaker of the House, June 28, 2012 (alerting

the Speaker that President Obama asserted executive privilege over a subset of subpoenaed documents).

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official and forwarded the citation on to the U.S. Attorney, only to see the DOJ decline to bring a

prosecution for criminal contempt.94 As a result, when an executive branch official is invoking

executive privilege at the behest of the President, the criminal contempt provision may prove

ineffective, forcing Congress to rely on other avenues to enforce subpoenas, including civil

enforcement through the federal courts.

The 2014 controversy surrounding former Internal Revenue Service (IRS) official Lois Lerner

may suggest that the executive branch has broadened its position on the use of criminal contempt

against an executive official. In that case, the House held Ms. Lerner in contempt, passing a

criminal contempt citation after she refused to provide testimony relating to her role in the

allegations that the IRS targeted politically active conservative groups for increased scrutiny in

assessing applications for tax exempt status.95 Appearing before the House Committee on

Oversight and Government Reform, Lerner invoked the Fifth Amendment privilege against selfincrimination as the basis for her refusal to testify. The committee rejected her assertion,

concluding that she had waived her Fifth Amendment privilege by voluntarily making an opening

statement in which she declared her innocence.96 Although the House approved the contempt

citation, the DOJ has remained silent and has taken no action to pursue a criminal case against

Lerner.

As noted, the DOJ’s past refusals to prosecute for contempt of Congress have involved situations

in which the executive branch official refused to comply with a subpoena on the grounds that the

documents or testimony sought were protected by executive privilege. Unlike these past

controversies, the dispute surrounding Ms. Lerner did not involve executive privilege or

institutional interests in the confidentiality of executive branch communications. Rather, Lerner’s

justification for noncompliance with the committee subpoena relates to her personal

constitutional privilege against self-incrimination under the Fifth Amendment.97 As such, the

DOJ’s exercise of prosecutorial discretion in apparently declining to pursue a criminal contempt

of Congress charge against executive branch officials would appear to extend beyond those

situations in which the official is asserting executive privilege.

The lessons to be gleaned from the Burford, Miers, Holder, and Lerner disputes appear to be

twofold. First, Congress faces a number of obstacles in any attempt to enforce a subpoena issued

against an executive branch official through the criminal contempt statute. Although the courts

have reaffirmed Congress’s constitutional authority to issue and enforce subpoenas,98 efforts to

punish an executive branch official for noncompliance with a subpoena through criminal

contempt will likely prove unavailing in many, if not most circumstances. Where the President

directs or endorses the noncompliance of the official, such as where the official refuses to

disclose information pursuant to the President’s decision to assert executive privilege, past

practice suggests that the DOJ will not pursue a prosecution for criminal contempt. The U.S.

Attorney would likely rely on prosecutorial discretion as grounds for not forwarding the contempt

These contempt actions are discussed in greater detail in CRS Report CRS Report RL34097, Congress’s Contempt

Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, by (name redacted) and

(name redacted).

H.Res. 574, 113th Cong. (2014).

For details on the Lerner contempt, see H.Rept. 113-415 (2014).

See CRS Report WSLG883, Prosecutorial Discretion and the Lerner Contempt, by (name redacted) and (name reda

cted).

Such subpoenas are still subject to valid claims of executive privilege and other constitutional imitations.

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citation to the grand jury pursuant to 2 U.S.C. Section 194.99 In other scenarios, however, where

the conduct of the executive branch official giving rise to the contempt citation was not endorsed

by the President, for example where an official disregards a congressional subpoena to protect

personal rather than institutional interests, the criminal contempt provision may remain an

effective avenue for punishing executive officials. Even in these situations, however, the

executive branch may choose not to prosecute the official, either because the executive branch

views the contempt citation as without merit or to avoid establishing a precedent for Congress’s

authority to use the criminal contempt statute to punish an executive branch officer.100

Second, 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.101 This shortcoming was apparent in the

Miers case, where the committee received a favorable decision from the district court, but was

unable to enforce that decision prior to the expiration of the 110th Congress and the conclusion of

the Bush Administration.102 Given the precedential importance of any civil action to enforce a

congressional subpoena, the resulting litigation would likely include a protracted appeals process.

The Miers litigation, which never reached a decision on the merits by the D.C. Circuit, was

dismissed at the request of the parties after approximately 19 months.103 Although the committee

gained access to much of the information the Bush Administration had refused to disclose, the

change in administrations and the passage of time could be said to have diminished the

committee’s ability to utilize the provided information to engage in effective oversight.

In light of these practical realties, in many situations Congress likely will not be able to rely on

the executive branch to effectively enforce subpoenas directed at executive branch officials, nor

will reliance on the civil enforcement of subpoenas through the judicial branch always result in a

prompt resolution of the dispute. Although subject to practical limitations, Congress retains the

ability to exercise its own constitutionally based authorities to enforce a subpoena through

inherent contempt.104

See supra pages 8-9.

The OLC opinions previously discussed only challenged the application of the criminal contempt statute in cases in

which the executive branch official in question has asserted a claim of executive privilege. See Olson Memo, supra

note 89.

101

It should also be repeated that the Senate civil enforcement statute, by its own terms, is inapplicable in the case of a

subpoena issued to an officer or employee of the federal government acting in their official capacity. 28 U.S.C.

§1364(a).

102

At least one commentator has suggested that reliance on the courts to enforce congressional subpoenas has

diminished Congress’s constitutional standing. See Josh Chafetz, Congress’s Constitution, 160 U. PA. L. REV. 715, 741

(2012) (“It seems literally unimaginable to the [Miers] court that the executive branch might resist a court order as

readily as it would resist an order from the House. And the House, in choosing to invoke the court’s authority rather

than its own, played right into this perception. It reinforced the idea that that the judiciary is the domain of reasoned,

principled judgments that must be respected, while congressional action in defense of its powers is ‘unseemly.’”).

103

However, if a lawsuit were brought early in a Congress, the reviewing court was willing to expedite the case, and

discretionary appeals were denied civil enforcement of a subpoena could be achieved promptly.

104

The district court in Miers warned against the risks of employing inherent contempt. 558 F. Supp. 2d. at 78

(“Exercise of Congress’s inherent contempt power through arrest and confinement of a senior executive official would

provoke an unseemly constitutional confrontation that should be avoided.”). In addition, even where either contempt or

civil enforcement proceedings prove unavailing, Congress may utilize other powers, including, for example, the

imposition of funding restrictions, to effectuate compliance by executive branch officials.

100

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Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Acknowledgments

Over time, authors of various versions of this report have included the following Legislative Attorneys:

(name redacted), (name redacted), (name redacted), (name redacted), and (name redacted).

Congressional Research Service

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