Congress's Contempt Power: A Sketch
Prepared for Members and Committees of Congress
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
(inherent contempt), punish the contemnor (criminal contempt), and/or to remove the obstruction
(civil contempt). Although arguably any action that directly obstructs the effort of Congress to
exercise its constitutional powers may constitute a contempt, in the last seventy years the
contempt power (primarily through the criminal contempt process) has generally been employed
only in instances of refusals of witnesses to appear before committees, to respond to questions, or
to produce documents.
This report outlines the source of the contempt power, reviews major developments in the case
law, and analyzes the procedures associated with each of the three different types of contempt
proceedings. Finally, the report discusses the recent investigation by the House Judiciary
Committee that has resulted in votes for criminal contempt of Congress and the filing of a civil
lawsuit to enforce congressional subpoenas. A more fully developed and detailed version,
complete with sources and references, can be found in CRS Report RL34097, Congress’s
Contempt Power: Law, History, Practice, and Procedure, by Morton Rosenberg and Todd B.
Congress’s Power to Investigate...............................................................................................1
Early History of Congressional Contempt................................................................................2
Statutory Criminal Contempt....................................................................................................6
The Position of the Department of Justice on the Use of Inherent and/or Criminal
Contempt of Congress Against the Executive Branch...........................................................8
Civil Contempt in the Senate............................................................................................12
Civil Contempt in the House of Representatives..............................................................13
Author Contact Information..........................................................................................................18
ongress’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 (inherent contempt), punish the contemnor (criminal contempt), and/or to C
remove the obstruction (civil contempt). Although arguably any action that directly obstructs the
effort of Congress to exercise its constitutional powers may constitute a contempt, in the last
seventy years the contempt power (primarily through the criminal contempt process) has
generally been employed only in instances of refusals of witnesses to appear before committees,
to respond to questions, or to produce documents.
This report outlines the source of the contempt power, reviews major developments in the case
law, and analyzes the procedures associated with each of the three different types of contempt
proceedings. A more fully developed and detailed version, complete with sources and references,
can be found at CRS Report RL34097, Congress’s Contempt Power: Law, History, Practice, and
Procedure, by Morton Rosenberg and Todd B. Tatelman.
The power of Congress to punish for contempt is inextricably related to the power of Congress to
investigate. 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. 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
In McGrain v. Daugherty,1 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.” In Sinclair v. 2
United States, 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.” 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.”
Subsequent Supreme Court rulings have consistently reiterated and reinforced the breadth of 3
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-
1 273 U.S. 135, 174-75 (1927).
2 279 U.S. 263 (1929).
3 421 U.S. 491, 504, n. 15 (1975) (quoting Barenblatt v. United States, 360 U.S. 109, 111 (1960)).
reaching as the potential power to enact and appropriate under the Constitution.” In addition, the 4
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.” 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.” “[T]he first Congresses,”
held “inquiries dealing with suspected corruption or mismanagement by government officials”
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.” 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.”
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
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 non-
compliance rather than to obtain the information sought. A statutory civil contempt 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.
While the contempt power was exercised both by the English Parliament and by the American
colonial assemblies, 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. 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. 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. In addition, the resolution provided that the accused be
questioned by written interrogatories submitted by the Speaker of the House with both the
4 354 U.S. 178, 187 (1957).
questions and the answers entered into the House minutes. The resolution also provided that 5
individual Members could submit written questions to the accused.
In 1821, the Supreme Court was faced with interpreting the scope of Congress’s contempt power.6
The case arose when Representative Louis Williams of North Carolina introduced a letter before
the House from a John Anderson, which Representative Williams interpreted as an attempt to
bribe him. Following its 1795 precedent, the House adopted a resolution ordering the Sergeant-at-
Arms to arrest Mr. Anderson 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. 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. 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-
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. 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.”
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 7
5 See CRS Report RL34097, Congress’s Contempt Power: Law, History, Practice, and Procedure, by Morton
Rosenberg and Todd B. Tatelman,4-7 (providing further details, examples, citations, and explanations) [hereinafter
CRS Contempt Report].
6 Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821).
7 Id. at 234.
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
The Court in Anderson also endorsed the existing parliamentary practice that the contemnor could
not be held beyond the end of the legislative session. 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 8
terminate with that adjournment.
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. 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
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.
Mr. Kilbourn filed a suit against the Speaker, the members of the committee, and the Sergeant-at-
Arms 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. 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
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. 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
8 Id. at 231.
9 103 U.S. 168 (1881).
essentially been removed by later cases sanctioning the use of the power in investigations
conducted pursuant to Congress’s authority to discipline its Members, to judge the elections of its
Members, and, most importantly, to probe the business and conduct of individuals to the extent
that the matters are subject to congressional regulation. 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. 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. According to the Court, the subject was plainly “one on
which legislation could be had and would be materially aided by information the investigation 10
was calculated to elicit.” The Court in McGrain was willing to presume that the investigation
had been undertaken to assist the committee in its legislative efforts.
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 in 11
the Capitol jail. The purpose of the imprisonment or other sanction may be either punitive or 12
coercive. 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.
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. 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, and (b) whether the contempt proceedings complied with
minimum due process standards. 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. 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 authority
10 Id. at 177.
11 Jurney v. MacCracken, 294 U.S. 125, 147 (1935).
12 McGrain v. Daugherty, 273 U.S. at 161.
that courts have to inherently impose fines for contemptuous behavior, 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. In addition, Kilbourn v. Thompson, 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.
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
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. 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. Because of these drawbacks, the inherent contempt process has not been used by either body
since 1934. 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, 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. Past practice and the Supreme Court’s 1993 decision in Nixon v. United 13
States, upholding the Senate’s ability to conduct impeachment trials in committee, appears to 14
provide support for the utilization of such committees to avoid lengthy floor proceedings.
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 produce 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. In 1857, a statutory criminal contempt procedure was
enacted, 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
13 506 U.S. 224 (1993).
14 See CRS Contempt Report, supra note 8 at 12-20.
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. With only minor
amendments, those statutory provisions are codified today as 2 U.S.C. §§ 192 and 194, which
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 15
month nor more than twelve months.
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 16
duty it shall be to bring the matter before the grand jury for its action.
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. The select committee responded by
reporting a resolution citing Mr. Simonton for contempt, as well as introducing a bill 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.” 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.
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
15 2 U.S.C. § 192 (2000). 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 (2000).
16 2 U.S.C. § 194 (2000).
outlined in section 194, “the following steps precede judicial proceedings under [the statute]: (1)
approval by committee; (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; [and] (4) certification by the Speaker to the
appropriate U.S. Attorney for prosecution.
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. 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, 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.
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.” It remains unclear whether the “duty” of the U.S. Attorney to present the contempt 17
to the grand jury is mandatory or discretionary.
The Department of Justice (DOJ) has 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 procedures against an executive branch official acting on instructions by
the President to assert executive privilege in response to a congressional subpoena. This view is
most fully articulated in two opinions by the DOJ’s Office of Legal Counsel (OLC) from the mid-18
1980s, and has been the basis of several recent claims with respect to pending congressional
The position of the DOJ was prompted by the outcome of an investigation by two House
committees into the Environmental Protection Agency’s (EPA) implementation of provisions of
the Comprehensive Environmental Response, Compensation and Liability Act of 1980
(Superfund). Subpoenas were issued by both committees seeking documents contained in EPA’s
litigation files. At the direction of President Reagan, EPA Administrator Burford claimed
executive privilege over the documents and refused to disclose them to the committees on the
grounds that they were “enforcement sensitive.” A subcommittee and ultimately the full House
17 See CRS Contempt Report, supra note 8 at 20-27.
18 See Prosecution for the Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of
Executive Privilege, 8 U.S. Op. Off. Legal Counsel 101 (1984) [hereinafter Olson Memo]; see also Response to
Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act, 10 U.S. Op.
Off. Legal Counsel 68 (1986) [hereinafter Cooper Memo].
Committee on Public Works and Transportation, approved a criminal contempt of Congress
citation and forwarded it to the full House for its consideration. On December 16, 1982, the full
House of Representatives voted, 259-105, to adopt the contempt citation. Before the Speaker of
the House could transmit the citation to the United States Attorney for the District of Columbia
for presentation to a grand jury, the DOJ filed a lawsuit seeking to enjoin the transmission of the
citation and to have the House’s action declared unconstitutional as an intrusion into the
President’s authority to withhold such information from the Congress. According to the DOJ, the
House’s action imposed an “unwarranted burden on executive privilege” and “interferes with the
executive’s ability to carry out the laws.”
The District Court for the District of Columbia dismissed the DOJ’s suit on the grounds that
judicial intervention in executive-legislative disputes “should be delayed until all possibilities for 19
settlement have been exhausted.” In addition, the court noted that ultimate judicial resolution of
the validity of the President’s claim of executive privilege could only occur during the course of
the trial for contempt of Congress. The DOJ did not appeal the court’s ruling, opting instead to
resume negotiations, which resulted in full disclosure and release of the all the subpoenaed
documents to the Congress. Throughout the litigation and subsequent negotiations, however, the
U.S. Attorney refused to present the contempt citation to a grand jury for its consideration on the
grounds that, notwithstanding the mandatory language of the criminal contempt statute, he had
discretion with respect to whether to make the presentation. The issue was never resolved because
the ultimate settlement agreement included a withdrawal of the House’s contempt citation.
In its initial 1984 opinion, OLC revisited the statutory, legal, and constitutional issues that were
not judicially resolved by the Superfund dispute. The opinion concluded that, as a function of
prosecutorial discretion, a U.S. Attorney is not required to refer a contempt citation to a grand
jury or otherwise to prosecute an executive branch official who is carrying out the President’s
direction to assert executive privilege. Next, the OLC opinion determined that a review of the
legislative history of the 1857 enactment of the criminal contempt statute and its subsequent
implementation demonstrates that Congress did not intend the statute to apply to executive
officials who carry out a presidential directive to assert executive privilege. Finally, as a matter of
constitutional law, the opinion concludes that simply the threat of criminal contempt would
unduly chill the President’s ability to effectively protect presumptively privileged executive
branch deliberations. According to the OLC opinion:
The President’s exercise of this privilege, particularly when based upon the written legal
advice of the Attorney General, is presumptively valid. Because many of the documents over
which the President may wish to assert a privilege are in the custody of a department head, a
claim of privilege over those documents can be perfected only with the assistance of that
official. If one House of Congress could make it a crime simply to assert the President’s
presumptively valid claim, even if a court subsequently were to agree that the privilege claim
were valid, the exercise of the privilege would be so burdened as to be nullified. Because
Congress has other methods available to test the validity of a privilege claim and to obtain
the documents that it seeks, even the threat of a criminal prosecution for asserting the claim
is an unreasonable, unwarranted, and therefore intolerable burden on the exercise by the 20
President of his functions under the Constitution.
19 See generally, United States v. United States House of Representatives, 556 F. Supp. 150 (D.D.C. 1983).
20 See Olson Memo, supra note 18 at 102.
The 1984 opinion focuses almost exclusively on the criminal contempt statute, as that was the
authority invoked by Congress in the Superfund dispute. In a brief footnote, however, the opinion
contains a discussion of Congress’s inherent contempt power, summarily concluding that the
same rationale that makes the criminal contempt statute inapplicable and unconstitutional as
applied to executive branch officials apply to the inherent contempt authority:
We believe that this same conclusion would apply to any attempt by Congress to utilize its
inherent “civil” contempt powers to arrest, bring to trial, and punish an executive official
who asserted a Presidential claim of executive privilege. The legislative history of the
criminal contempt statute indicates that the reach of the statute was intended to be
coextensive with Congress’ inherent civil contempt powers (except with respect to the
penalties imposed). Therefore, the same reasoning that suggests that the statute could not
constitutionally be applied against a Presidential assertion of privilege applies to Congress’ 21
inherent contempt powers as well.
The 1986 OLC opinion reiterates the 1984 reasoning adding the observation that the power had
not been used since 1935 (at that time over 50 years), and that “it seems unlikely that Congress
would dispatch the Sergeant-at-Arms to arrest and imprison an executive branch official who
claimed executive privilege.” The 1986 OLC opinion also suggests that then current Supreme
Court opinions indicated that it was “more wary of Congress exercising judicial authority” and,
therefore, might revisit the question of the continued constitutional validity of the inherent
Factual, legal, and constitutional aspects of these OLC opinions are open to question and
potentially limitations. For example, with respect to the argument that a U.S. Attorney cannot be
statutorily required to submit a contempt citation to a grand jury, despite the plain language of the
law, such a statement appears to be analogous to a grant of so-called “pocket immunity” by the
President to anyone who asserts executive privilege on his behalf. The courts have concluded that
the government, or in this case the President, may informally grant immunity from prosecution,
which is in the nature of a contract and, therefore, its effect is strongly influenced by contract law
principles. Moreover, principles of due process require that the government adhere to the terms of
any immunity agreement it makes. It appears that a President has implicitly immunized executive
branch officials from violations of congressional enactments at least once—in 1996, during a
dispute over the constitutionality of a statute that made it a requirement for all public printing to
be done by the Government Printing Office. At the time, the DOJ, in an opinion from OLC,
argued that the requirement was unconstitutional on its face, directed the executive branch
departments not to comply with the statute as passed by Congress, and noted that executive
branch officials who are involved in making decisions that violate the statute face little to no
litigation risk, including, it appears, no risk of prosecution under the Ant-Deficiency Act, for
which the DOJ is solely responsible. Such a claim of immunization in the contempt context,
whether express or implicit, would raise significant constitutional questions. While it is true that
the President can immunize persons from criminal prosecution, it does not appear that he has
authority to immunize a witness from a congressional inherent contempt proceeding. Arguably, an
inherent contempt proceeding takes place wholly outside the criminal code, is not subject to
executive execution of the laws and prosecutorial discretion, and thus, appears completely beyond
the reach of the executive branch. Furthermore, as previously indicated, inherent contempt, unlike
criminal contempt, is not intended to punish, but rather to coerce compliance with a congressional
directive. Thus, a finding of inherent contempt against an executive branch officials would not
21 Id. at 140, n. 42 (internal citation omitted).
appear to be subject to the President’s Pardon power22—as an inherent contempt arguably is not
an “offense against the United States,” but rather is an offense against a House of Congress.
Likewise, it appears that the same arguments would be applicable to a potential civil contempt by
The assertion that the legislative history of the 1857 statute establishing the criminal contempt
process demonstrates that it was not intended to be used against executive branch official does
not appear to be supported by the historical record. The floor debates leading to the enactment of
the statute make it clear that the legislation was intended as an alternative to, not a substitute for,
the inherent contempt authority. This understanding has been reflected in numerous Supreme
Court opinions upholding the use of the criminal contempt statute. A close review of the floor
debate indicates that Representative H. Marshall expressly pointed out that the broad language of
the bill “proposes to punish equally the Cabinet officer and the culprit who may have insulted the
dignity of this House by an attempt to corrupt a Representative of the people.”
Moreover, language from the floor debate indicates that Congress was aware of the effect that this
language would have on the ability of persons to claim privileges before Congress. Specifically,
the sponsor of the bill, Representative Orr, was asked about the potential instances in which the
proposed legislation might interfere with recognized common law and other governmental
privileges, such as the attorney-client privilege, to support an investigation such as one that
probed “the propriety of a secret service fund to be used upon the discretion of the executive
department,” or to support inquiries about “diplomatic matters.” Representative Orr responded
that the House has and would continue to follow the practice of the British Parliament, which
“does not exempt a witness from testifying upon any such ground. He is not excused from
testifying there. That is the common law of Parliament.” Later in the same debate, a proposed
amendment to expressly recognize the attorney-client privilege in the statute was overwhelmingly
With respect to the secret service fund, Representative Orr explained “that this House has already
exercised the power and authority of forcing a disclosure as to what disposition had been made
for the secret-service fund. And it is right and proper that is should be so. Under our
Government—under our system of laws—under our Constitution—I should protest against the
use of any money by an executive authority, where the House had not the right to know how
every dollar had been expended, and for what purpose.” Representative Orr’s reference was to a
contentious investigation in 1846, regarding charges that Daniel Webster, while Secretary of
State, had improperly disbursed monies from a secret contingency fund used by the President for
clandestine foreign operations. The charges led the committee to issue subpoenas to former
Presidents John Quincy Adams and John Tyler. President Polk sent the House a list of the
amounts in the contingent fund for the relevant period, which was prior to his term, but refused to
furnish documentation of the uses that had been made of the expenditures on the grounds that a
sitting President should not publically reveal the confidences of his predecessors. President Polk’s
refusal to provide the information was mooted by the actions of the two investigatory committees
established by the House. Former President Tyler testified and former President Adams filed a
deposition detailing the uses of the fund during their Administrations. In addition, President
Polk’s Secretary of State, James Buchanan, was subpoenaed and testified. Ultimately, Mr.
Webster was found innocent of any wrongdoing. From these references, it appears that the House
22 U.S. CONST. Art. II, § 2 (stating that the President “shall have the Power to grant Reprieves and Pardons for Offenses
Against the United States.”).
was, in 1857, sensitive to and cognizant about its oversight and investigative prerogatives vis-a-
vis the executive branch. It therefore appears arguable that in the context of the debate, the
contempt statute was not intended to preclude the House’s ability to engage in oversight of the
Finally, OLC’s contention that the criminal contempt statute has only been used once, in the
Burford/Superfund dispute, appears to be based on the fact that the contempt of Anne Burford
was the only contempt voted on by the full House of Representatives. Significantly, prior to the
Superfund dispute, committees and subcommittees of the House of Representatives had voted
contempt citations against Secretary of State Henry Kissinger (1975); Secretary of Commerce
Rogers C. B. Morton (1975); Secretary of Health, Education, and Welfare Joseph A. Califano, Jr.
(1978); Secretary of Energy Charles Duncan (1980); Secretary of Energy James B. Edwards
(1981); Secretary of the Interior James Watt (1982), and Attorney General William French Smith
(1983). Since the Superfund dispute, contempt citations have been voted against White House
Counsel John M. Quinn (1996) and Attorney General Janet Reno (1998). In every instance, save
for John M. Quinn, a claim of executive privilege was asserted, and in each instance there was
ultimately either full or substantial compliance with the demands of the committee that had issued 23
As an alternative to both the inherent contempt power of each House and the criminal contempt
statutes, in 1978 Congress enacted a civil contempt procedure, which is applicable only to the
Senate. 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.
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.” It is solely within the
discretion of the Senate whether or not to use such a two-step enforcement process.
Regardless of whether the Senate seeks the enforcement of, or a declaratory judgement
concerning a subpoena, the court will first review the subpoena’s validity. 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, “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 whether or not to aid
Congress in enforcing the subpoena. If the individual still refuses to comply, he may be tried by
23 See CRS Contempt Report, supra note 8 at 27-33.
the court in summary proceedings for contempt of court, with sanctions being imposed to coerce
Without affecting the right of the Senate to institute criminal contempt proceedings or to try an
individua1 for contempt at the bar of the Senate, this procedure gives the Senate the option of a
civil action to enforce a subpoena. Civil contempt 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 contempt, 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. Since the statute’s enactment in
1979, the Senate has authorized the Office of Senate Legal Counsel to seek civil enforcement of a
document subpoena at least 6 times, the last in 1995. None has been against executive branch
The civil contempt 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 contempt 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 procedures, or an
inability to comply with the subpoena) without risking a criminal prosecution.
Civil contempt, 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. Enacted as part of
the Ethics in Government Act of 1978, early drafts of the civil contempt 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. 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.” 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
the subpoena not to comply with its terms.
While the House of Representatives cannot pursue actions under the Senate’s civil contempt
statute discussed above, there are numerous examples of the House, by resolution, affording
24 See CRS Contempt Report, supra note 8 at 33-37.
special investigatory committees authority not ordinarily available to its standing committees.
Such special panels have often been vested with staff deposition authority, and given the
particular circumstances, special panels have also been vested with the authority to obtain tax
information, as well as the authority to seek international assistance in information gathering
efforts abroad. In addition, several special panels have been specifically granted the authority to
seek judicial orders and participate in judicial proceedings.
For example, in 1987, the House authorized the creation of a select committee to investigate the
covert arms transactions with Iran (Iran-Contra). As part of this resolution, the House provided
the following authorization:
(3) The select committee is authorized ... to require by subpoena or otherwise the attendance
and testimony of such witnesses ... as it deems necessary, including all intelligence materials
however classified, White House materials, ... and to obtain evidence in other appropriate
countries with the cooperation of their governments. ... (8) The select committee shall be
authorized to respond to any judicial or other process, or to make any applications to court, 25
upon consultation with the Speaker consistent with [House] rule L.
The combination of broad subpoena authority, that expressly encompassed the White House, and
the ability to make “any applications to court,” arguably suggests that the House contemplated the
possibility that a civil suit seeking enforcement of a subpoena against a White House official was
possible. By virtue of the resolution’s language, it appears reasonable to conclude that the House
decided to leave the decision in the hands of the select committee, consistent with House Rule L
(now House Rule VIII governing subpoenas). It may be noted, then, that while the House select
committee did not attempt to seek judicial enforcement of any of its subpoenas, the authorization
resolution did not preclude the possibility. A review of modern House precedents indicates at least
5 other special or select committees that have been granted, via House resolution, both subpoena
authority as well as the ability to seek and participate in judicial actions.
A potential hurdle to a resolution by the House of Representatives authorizing the pursuit of a
civil court order is the jurisdiction of the federal courts. Such jurisdiction, specifically federal
district court jurisdiction, 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 of
the Constitution 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 ....” 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.”
Conversely, the federal-question jurisdiction statute, first enacted in 1875, while containing
almost identical language to Article III, has been interpreted by the Court to be much narrower in
scope. But, 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.
25 See H.Res. 12, 100th Cong., 1st Sess., §§ 3, 8 (1987) (emphasis added).
We have found no court or commentator that has expressly adopted this argument. It therefore
remains unclear whether the existing statutory language for jurisdiction can be definitively said to
be inadequate. Rather, the limited Supreme Court and other federal court precedent that exists
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, 26
Pennsylvania, 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. 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.” 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.” 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” and having “passed laws calculated to facilitate such investigations,” 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.” 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.’” 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. 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 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,27 a 2006 opinion of the District Court for the Central District of
California, the plaintiffs, all minority members of the House Government Reform Committee,
sought a court order pursuant to 5 U.S.C. §§ 2954 and 7211—often times referred to as the “rule
of seven”—granting them access to Department of Health and Human Services records related to
the anticipated costs of the Medicare Prescription Drug and Modernization Act of 2003. The
court, in dismissing the case for lack of jurisdiction, addressed the argument made by the
plaintiffs that 5 U.S.C. § 2954, which requires that “[a]n Executive agency, on request of the
Committee on Government Operations of the House of Representatives, or of any seven members
thereof ... shall submit any information requested of it relating to any matter within the
jurisdiction of the committee,” implicitly delegated to Members to right to sue to enforce their
informational demands. The court, in rejecting this argument, relied on the Supreme Court’s
holding in Reed v. County Commissioners. Specifically, the court noted that Reed’s holding “put
26 277 U.S. 376 (1928).
27 Waxman v. Thompson, No. 04-3467, slip op. (C.D. Cal. July 24, 2006).
Congress on notice that it was necessary to make authorization to sue to enforce investigatory
demands explicit if it wished to ensure that such power existed.” According to the court, like the
Senate resolution at issue in Reed, because § 2954 is silent with respect to civil enforcement it
stands to reason that the Congress never intended to provide the Members with the power to seek
civil judicial orders to enforce their document demands.
The argument that a mere one-house resolution is not sufficient to provide jurisdiction also
derives support from the ruling in Senate Select Committee on Presidential Campaign Activities v. 28
Nixon, a 1973 decision by the District Court for the District of Columbia. In Senate Select
Committee, the court held that there was no jurisdictional statute available that authorizes the
court to hear and decide the merits of the Committee’s request for a declaratory judgment,
mandatory injunction, and writ of mandamus arising from President Nixon’s refusal to produce
tape recording and other documents sought by the Committee pursuant to a subpoena duces
tecum. In reaching its conclusion, the court addressed several potential bases for jurisdiction: 28
U.S.C. § 1345, United States as a Plaintiff; 28 U.S.C. § 1361, Action to Compel an Officer of the
United States to Perform His Duty; 5 U.S.C. §§ 701-706, the Administrative Procedure Act; and,
of particular relevance here, 28 U.S.C. § 1331, the federal question jurisdiction statute.
Focusing on 28 U.S.C. § 1331, the court noted that the statute at the time contained a minimum
“amount in controversy” requirement of “$10,000 exclusive of interest and costs.” The court
stated that “[t]he satisfaction of a minimum amount-in-controversy is not a technicality; it is a
requirement imposed by Congress which the courts may not dispense with at their pleasure.”
Because the Select Committee could not establish a theory under which the amount in
controversy requirement was satisfied, the court dismissed the case for lack of subject matter
Senate Select Committee may still be cited for the proposition that, absent a specific
congressional enactment, Congress may not seek to enforce a subpoena in federal court. It is
important to note, however, that not only have subsequent cases held that “[w]here fundamental
constitutional rights are involved, this court has been willing to find satisfaction of the 29
jurisdictional amount requirement for federal question jurisdiction,” but also that Congress
specifically removed the amount in controversy requirement for federal question jurisdiction in
1980. Given these developments, combined with the reading of Reed v. County Commissioners
suggested above, it appears possible to argue that a specifically authorized congressional
committee may bring a civil action to enforce a subpoena using 28 U.S.C. § 1331 as a basis for
federal question jurisdiction. Such an argument has been suggested by the district court in
Waxman v. Thompson, the “rule-of-seven” case discussed above. According to the court in 30
Waxman, the holdings of Reed, Senate Select Committee and United States v. AT&T—a case
involving the intervention by a House committee chairman into a lawsuit by the Department of
Justice, which was attempting to enjoin compliance with a committee subpoena by AT&T—
suggest that “legislative branch suits to enforce requests for information from the executive
branch are justiciable if authorized by one or both Houses of Congress.” While we have found no
instance where a committee of either the House or Senate has attempted to use this argument to
28 366 F. Supp. 51 (D.D.C. 1973).
29 United States v. American Telephone & Telegraph Co., 551 F.2d 384, 389 (D.C. Cir. 1976) (citing Committee for GI
Rights v. Callaway, 518 F.2d 466, 472-73 (1975)); see also Greer v. Spock, 424 U.S. 828 (1976).
30 567 F.2d 121.
enforce a subpoena, it appears to be consistent with both the plain meaning of the statute and a
reasonable interpretation of the existing case law.
Although, as indicated, there have been no attempts by a House of Congress to seek civil
enforcement of subpoenas in federal court authorized solely by resolution of a single House, there
have been situations that appear to be closely analogous. On several occasions the House of
Representatives has authorized, via House Resolution, the intervention by counsel representing a
House Committee into civil litigation involving congressional subpoenas.
While some may still argue that a law passed by both Houses and signed by the President
conferring jurisdiction is required, it may be plausibly argued that taken together, the combination
of Reed’s requirement that congressional authorization to sue be by express language, the
willingness of federal courts to accept properly authorized interventions, and the fact that the
federal question jurisdiction statute no longer contains an amount in controversy requirement,
suggest that if an authorization resolution by the House can be obtained there is a likelihood that a
reviewing court will find no legal impediment to seeking civil enforcement of subpoenas or other 31
An investigation into the resignations of nine United States Attorneys by the House Judiciary
Committee and its Subcommittee on Commercial and Administrative Law (“the Committee”) has
resulted in the first legal confrontation over Congress’s contempt authority since the early 1980s
and the first civil lawsuit filed by a House of Congress in an attempt to enforce its prerogatives.
After an extensive investigation, which involved numerous witness interviews and several
congressional hearings, the Committee ultimately sought information relating to the resignations 32
directly from the White House. After several attempts to obtain the information sought
informally, on June 13, 2007, the Committee issued and served subpoenas on Ms. Harriet Miers,
the former White House Counsel and Mr. Joshua Bolten, the White House Chief of Staff and 33
custodian of White House records. Ms. Miers’s subpoena was for both documents and testimony
about her role, if any, in the resignations; while Mr. Bolten’s subpoena was only for White House
records and documents related to the resignations.
In response to the Committee’s action, the White House, via its Counsel Fred F. Fielding, notified
the Committee that it did not intend to comply with the subpoena to Mr. Bolten on the grounds of
executive privilege. As a result, the White House has not produced any documents in response to
Mr. Bolten’s subpoena and has also not yet provided a privilege log or any information describing
the contents of the documents being withheld.
With respect to the subpoena to Ms. Miers, Mr. Fielding first sent a letter to Ms. Miers’s private
attorney containing notice of the President’s assertion of executive privilege over information
related to this investigation, and suggested that Ms. Miers refrain from producing any documents
31 See CRS Contempt Report, supra note 8 at 37-46.
32 See generally, H.Rept. 110-423 (2007), available at, http://judiciary.house.gov/Media/PDFS/
ContemptReport071105.pdf; see also H. Jud. Comm. Mot. Summ. J. at 11 (copy on file with authors).
33 H. Jud. Comm. Mot. Summ. J. at 12.
pursuant to her subpoena.34 Several days later Mr. Fielding sent a second letter to Ms Miers’s
attorney that indicated that she was “not to provide ... testimony” pursuant to the subpoena, on the
grounds that any such testimony would also be covered by the President’s assertion of executive 35
privilege. Subsequently, Ms. Miers’s attorney notified the Committee that, as a result of the 36
President’s claim of executive privilege, Ms. Miers would not appear at the scheduled hearing.
On July 25, 2007, the Committee voted to hold Ms. Miers and Mr. Bolten in contempt of 37
Congress for failure to comply with the duly issued subpoenas. The full House of
Representatives voted to hold Ms. Miers and Mr. Bolten in criminal contempt of Congress on 38
February 14, 2008, for their failure to comply with the Committee’s subpoenas. In addition to
invoking the criminal contempt statutes, the resolutions adopted by the House of Representatives
expressly authorized the filing of a civil lawsuit in the event that the Department of Justice would 39
not pursue the criminal contempt actions. On February 28, 2008, pursuant to 2 U.S.C. § 194, the
Speaker of the House certified the Report to the U.S. Attorney for the District of Columbia for 40
presentation to the grand jury. The next day, the Attorney General sent a letter to the Speaker,
stating that the Department of Justice “will not bring the congressional contempt citations before 41
a grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers.” On March 10,
2008, pursuant to the resolution adopted by the House of Representatives, a civil suit was filed in
the United States District Court for the District of Columbia “seek[ing] [a] declaratory
judgment” and other “appropriate relief, including injunctive relief” to enforce the Committee’s 42
Pursuant to the Federal Rules of Civil Procedure, on April 10, 2008, the Committee requested
partial summary judgment on the grounds that there are no genuine issues regarding any material 43
facts and, therefore, the Committee argued that it is entitled to judgment as a matter of law. The
Department of Justice’s opposition and any cross-motions are due no later than May 9, 2008, and
a hearing on the Committee’s motion is currently scheduled for June 23, 2008.
Morton Rosenberg Todd B. Tatelman
34 See Id.
37 See H.Rept. 110-423, 60 (2007).
38 See H.Res. 979, H.Res. 980, H.Res. 982, 110th Cong. (2008).
39 See H.Res. 982, 110th Cong. (2008).
40 H. Jud. Comm. Mot. Summ. J. at 13.
41 Id. at 13-14.
43 See FED. R. CIV. P. 56.