Congress's Contempt Power: Law, History, Practice, and Procedure

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 examines the source of the contempt power, reviews the historical development of the
early case law, outlines the statutory and common law basis for Congress’s contempt power, and
analyzes the procedures associated with each of the three different types of contempt proceedings.
In addition, the report discusses limitations both nonconstitutional and constitutionally based on
the power. 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.

Introduc tion ............................................................................................................................... 1
Congress’s Power to Investigate...............................................................................................1
Early History of Congressional Contempt................................................................................4
Inherent Contempt...................................................................................................................10
Inherent Contempt Proceedings By Committees of Congress................................................13
Statutory Criminal Contempt..................................................................................................17
The Position of the Department of Justice on the Use of Inherent and/or Criminal
Contempt of Congress Against the Executive Branch.........................................................22
Civil Contempt........................................................................................................................28
Civil Contempt in the Senate............................................................................................28
Civil Contempt in the House of Representatives..............................................................31
Non-Constitutional Limitations..............................................................................................38
Authorization and Jurisdiction..........................................................................................38
Legislative Purpose...........................................................................................................40
Pertinency ......................................................................................................................... 42
Wi ll fulnes s ........................................................................................................................ 43
Other Procedural Requirements........................................................................................44
Attorney-Client Privilege..................................................................................................44
Work Product Immunity and Other Common Law Testimonial Privileges......................47
Constitutional Limitations.......................................................................................................48
First Amendment...............................................................................................................48
Fourth Amendment...........................................................................................................50
Fifth Amendment Privilege Against Self-Incrimination...................................................52
Fifth Amendment Due Process Rights..............................................................................54
Recent Developments..............................................................................................................54
Author Contact Information..........................................................................................................56

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 1
the contemnor, and/or to remove the obstruction. Although arguably any action that directly 2
obstructs the effort of Congress to exercise its constitutional powers may constitute a contempt,
in the last seventy years the contempt power has generally been employed only in instances of
refusals of witnesses to appear before committees, to respond to questions, or to produce 3
This report examines the source of the contempt power, reviews the historical development of the
early case law, outlines the statutory, common law, and constitutional limitations on the contempt
power, and analyzes the procedures associated with each of the three different types of contempt 4
proceedings (inherent contempt, statutory criminal contempt, and statutory civil contempt).
The power of Congress to punish for contempt is inextricably related to the power of Congress to 5
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 6
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

1 See generally, RONALD L. GOLDFARB, THE CONTEMPT POWER (2d ed., Anchor Books 1971).
2 Compare Jurney v. MacCracken, 294 U.S. 125 (destruction of documentary evidence which had been subpoenaed by
a committee of Congress can constitute contempt) with Marshall v. Gordon, 243 U.S. 521 (1917) (publication by U.S.
Attorney of letter critical of Congress could not constitute contempt because it did not directly obstruct the legislative
process). The Jurney decision also upheld the use of the inherent contempt power to punish a past contempt, even
where removal of the obstruction to the legislative process was no longer possible. See Jurney, 294 U.S. at 147-48, 150.
3 However, in two cases, defendants entered pleas of nolo contendere to the statutory offense of contempt, a
misdemeanor, rather than stand trial for perjury, a felony. United States v. Helms, Cr. No. 77-650 (D.D.C. 1977);
United States v. Kleindienst, Cr. No. 74-256 (D.D.C. 1974); see also Prosecution of Contempt of Congress, Hearing
before the Subcommittee on Administrative Law and Governmental Relations of the House Judiciary Committee on thst
H.R. 2684 and H.R. 3456, 98 Cong., 1 Sess., 29 (1983) (prepared statement of Stanley Brand, former Counsel to the
Clerk of the House).
4 The three types of contempt, and the procedures associated with them, are discussed in more detail below. See infra at
12 (inherent contempt), 20 (criminal contempt), & 33 (civil contempt). It is noted that a witness who refuses to testify
before a committee, or who provides a committee with false or misleading testimony, can potentially be prosecuted
under other criminal provisions, including 18 U.S.C. § 1001 (false statements), 18 U.S.C. § 1621 (perjury), and 18
U.S.C. § 1505 (obstruction of committee proceedings). A detailed discussion of those offenses, however, is beyond the
5 See generally, Allen B. Moreland, Congressional Investigations and Private Persons, 40 SO. CAL. L. REV. 189
6 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); Barnblatt 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).

In McGrain v. Daugherty,7 which arose out of the exercise of the Senate’s inherent contempt
power, the Supreme Court described the power of inquiry, with the accompanying process to
enforce it, as “an essential and appropriate auxiliary to the legislative function.” The Court
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 informationwhich 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 inquirywith enforcing processwas regarded and employed as a
necessary and appropriate attribute of the power to legislate–indeed, was treated as inhering
in it. Thus there is ample warrant for thinking, as we do, that the constitutional provisions
which commit the legislative function to the two houses are intended to include this attribute 8
to the end that the function may be effectively exercised.
In Sinclair v. United States,9 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 10
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 11
actual administration of the land laws.” 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 12
abridged because the information sought to be elicited may also be of use in such suits.
Subsequent Supreme Court rulings have consistently reiterated and reinforced the breadth of
Congress’s investigative authority. For example, in Eastland v. United States Servicemen’s Fund,
the Court explained that “[t]he scope of [Congress’s] power of inquiry ... is as penetrating and far-13
reaching as the potential power to enact and appropriate under the Constitution.” 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

7 273 U.S. 135, 174-75 (1927).
8 Id.
9 279 U.S. 263 (1929).
10 Id. at 290.
11 Id. at 295.
12 Id.
13 421 U.S. 491, 504, n. 15 (1975) (quoting Barenblatt v. United States, 360 U.S. 109, 111 (1960)).

proposed or possibly needed statutes.”14 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 15
departments of the Federal Government to expose corruption, inefficiency, or waste.” “[T]he
first Congresses,” held “inquiries dealing with suspected corruption or mismanagement by 16
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 17
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, 18
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 19
civil enforcement of subpoenas.

14 354 U.S. 178, 187 (1957).
15 Id.
16 Id. at 182.
17 Id. at 194-95
18 Id. at 200 n. 33; see also Morrison v. Olson, 487 U.S. 654, 694 (1988) (noting that Congresss role under the
Independent Counsel Act “of receiving reports or other information and oversight of the independent counsels
activities ... [are] functions we have recognized as being incidental to the legislative function of Congress”) (citing
McGrain v. Daugherty, 273 U.S. 135 (1927)).
19 See, e.g., S.Res. 60 & S.Res. 194, 93d Cong., (1973) (Senate Select Committees on Watergate); H.Res. 60, 97th
Cong., (1981) (ABSCAM); H.Res. 12, 100th Cong. (1987) (House Iran–Contra); S.Res. 23, 100th Cong. (1987) (Senate th
Iran–Contra); H.Res. 463, 105 Cong., (1998) (Select Committee on National Security Commercial Concerns); see th
also H.Res. 1420, 94 Cong. 2d Sess. (1976) (authorizing the Chairman of the House Interstate and Foreign Commerce
Subcommittee on Oversight and Investigations to intervene in United States v. American Telephone & Telegraph, 419
F. Supp. 454 (D.D.C. 1976)); H.Res. 899, 121 CONG. REC. 918-19 (1975) (authorizing the Chairman of the House
Interstate and Foreign Commerce Subcommittee on Oversight and Investigations to intervene in Ashland Oil Inc., v.
FTC, 409 F. Supp. 297, 307 (D.D.C. 1976)).

While the contempt power was exercised both by the English Parliament20 and by the American 21
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 22
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 23
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 24
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 25
questions and the answers entered into the House minutes. The resolution also provided that 26
individual Members could submit written questions to the accused.
Upon adopting the resolution and after considerable debate, the House determined that the
following procedures be adhered to: First, the complaining Members were to submit a written
signed information to the accused and for publication in the House Journal. In addition, the
accused were to be provided counsel, the right to call witnesses on their behalf, the right to cross-
examination of the complaining Members through written questions submitted to the Speaker, 27
and adequate time to prepare a defense. A proceeding was held at the bar of the House, and on
January 4, 1796, the House, by a vote of 78-17, adopted a resolution finding Mr. Randall guilty of
“a contempt to, and a breach of the privileges of, this House by attempting to corrupt the integrity 28
of its Members in the manner laid to his charge.” The House ordered Mr. Randall to be brought
to the bar, reprimanded by the Speaker, and held in custody until further resolution of the 29
House. Mr. Randall was detained until January 13, 1796, when he was discharged by House
resolution. Mr. Whitney, on the other hand, was absolved of any wrongdoing as the House
determined that his actions were against a “member-elect,” and had taken place “away from the 30
seat of government.”

1945-1957 (1959) [hereinafter Beck].
22 2 ASHER C. HINDS, PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, § 1599 (1907) [hereinafter HindsPrecedents].
According to the records, Messrs. Randall and Whitney allegedly offered three Members emoluments and money in
exchange for the passage of a law granting Randall and his associates some 18-20 million acres of land bordering Lake
Erie. See id.
23 Id.
24 Id. at § 1600.
25 Id.
26 Id.
27 Id. at §§ 1601-1602. The proceedings appear to have been delayed from December 30, 1795 to January 4, 1796, at
the request of Randall and his counsel. Id.
28 Id. at § 1603.
29 Id.
30 Id.

Of additional significance is the fact that the records indicate that almost no question was raised
with respect to the power of Congress to punish a non-Member for contempt. According to one
commentator, who noted that many of the Members of the early Congress were also members of
the Constitutional Convention and, thus, fully aware of the legislative practices of the time, it was
“substantially agreed that the grant of the legislative power to Congress carried with it by 31
implication the power to punish for contempt.”
Four years later, the Senate exercised its contempt power against William Duane, who, as editor
of the Aurora newspaper, was charged with the publication of a libelous article concerning the
Senate and one of its committees. Mr. Duane was ordered by Senate resolution to appear before
the bar of the Senate and “make any proper defense for his conduct in publishing the aforesaid 32
false, defamatory, scandalous, and malicious assertions and pretended information.” At his
initial appearance before the Senate, Mr. Duane requested, and was granted, the assistance of 33
counsel and ordered to appear again two days later. Instead of appearing before the Senate as
ordered, Mr. Duane submitted a letter indicating he did not believe he could receive a fair trial 34
before the Senate. Mr. Duane was subsequently held in contempt of the Senate for his failure to 35
appear, not for his alleged libelous and defamatory publications. As a result, he was held in the
custody of the Senate for several weeks before the Senate, by resolution, instructed that he be 36
released and tried by the courts.
The Senate’s contempt of Mr. Duane generated considerably more debate concerning Congress’s
contempt authority. A majority of Senators argued that the Senate’s contempt power was an
inherent right of legislative bodies, derived not specifically from the Constitution, but rather from
“the principle of self-preservation, which results to every public body from necessity and from 37
the nature of the case.” Moreover, Senators supportive of this position argued that their
reasoning was firmly supported by English and colonial practices, as well as the practice of the
state legislatures. Finally, the majority asserted that if Congress did not possess a contempt power 38
it would be vulnerable to the disruption of its proceedings by outside intruders.
While the Senate’s exercise of its contempt power was not without precedent, many Senators
disputed these claims, arguing that all powers sought to be exercised by Congress must be
specifically derived from the Constitution; that because the contempt power is not among the
enumerated powers given to Congress, the power is reserved to the states and the people. In
addition, the minority argued that Congress, unlike the English Parliament or state legislatures,
was intentionally not granted the plenary powers of sovereignty by the Constitution and, thus, 39
could not claim any inherent right to self-preservation. As an alternative, the minority proposed

31 C.S. Potts, Power of Legislative Bodies to Punish for Contempt, 74 U. PENN. L. REV. 691, 720 (1926).
32 2 Hinds’ Precedents, supra note 22 at § 1604.
33 Id.
34 Id.
35 Id. The Senate voted 16-11 to hold Mr. Duane in contempt. Id.
36 Id. The records indicate that Mr. Duane was held in contempt of the Senate on March 27, 1800, and released by
resolution adopted on May 14, 1800, the last day of the session, by a vote of 13-4. Id.
37 Senate Proceedings, 6th Cong. 1799-1801 86 (March 5, 1800); see also Constitution, Jefferson’s Manual, and the
Rules of the House of Representatives, H.R. Doc. 108-241, 108th Cong., 2d Sess., §§ 297-299 (2005) [hereinafter
Jefferson’s Manual]
38 See id.
39 Id. at § 298

that Congress, which has the power to “make all laws which shall be necessary and proper for 40
carrying into execution the foregoing powers” had sufficient authority to enact a statute that 41
would protect the integrity of its proceedings. Moreover, the minority argued that disruptions of 42
congressional proceedings would continue to be subject to the criminal laws.
After Mr. Duane’s contempt by the Senate, it appeared that the subject of the Congress’s inherent
contempt power was settled. The authority, however, was not used again for another 12 years. In
1812, the House issued a contempt resolution against Mr. Nathaniel Rounsavell, who had refused
to answer a select committee’s questions concerning which Representative had given him 43
information regarding secret sessions. However, before Mr. Rounsavell was brought before the 44
bar of the House a Member admitted his indiscretion and the matter was not pursued.
Congress’s inherent contempt power was not used again until 1818, where it eventually made its
way to the Supreme Court for adjudication.
In 1821, the Supreme Court was faced with interpreting the scope of Congress’s contempt 45
power. 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 46
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 47
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 48
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 49
the Sergeant-at-Arms.
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

40 U.S. CONST. Art. 1, § 8, cl.18.
41 Jefferson’s Manual, supra note 37 at § 298.
42 See id.
43 See Beck, supra note 21 at 192.
44 Id.
45 Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821).
46 See 2 Hinds’ Precedent, supra note 22 at § 1606. The letter offered Representative Williams $500 aspart pay for
extra trouble with respect to furthering the claims of Mr. Anderson with respect to the River Raisin. Id.
47 Id.
48 Id.
49 Id.

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 50
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, 51
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 52
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 53
The Court in Anderson also endorsed the existing parliamentary practice that the contemnor could 54
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 55
terminate with that adjournment.
Since Anderson was decided there has been an unresolved question as to whether this rule would 56
apply with equal force to a contempt by the Senate, since it is considered a “continuing body.”
The Senate, it appears, has only addressed this issue once, in 1871, regarding the contempt of two 57
recalcitrant witnesses, Z.L. White and H.J. Ramsdell. During these contempt proceedings, the
Senate found itself near the end of a session and the question arose as to whether the Senate’s
acquiescence to the Anderson rule would provide adequate punishment. After vigorous debate,
the Senate instructed the Sergeant-at-Arms to release the prisoners immediately upon the final

50 Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821).
51 Id. at 228.
52 Id. at 234.
53 Id. at 228.
54 See 2 HindsPrecedent, supra note 22 at § 1604 (noting that Mr. Duane, who had been held in contempt by the
Senate, was released from custody on the last day of the legislative session).
55 Anderson, 19 U.S. (6 Wheat.) at 231.
56 Unlike the House, whose entire membership stands for election every two years, only one-third of the Senate is
elected each Congress.
57 Allen B. Moreland, Congressional Investigations and Private Persons, 40 SO. CAL. L. REV. 189, 199, n. 31 (1967)
[hereinafter Moreland].

adjournment of the Congress.58 The House, however, has imprisoned a contemnor for a period
that extended beyond the adjournment of a Congress. Patrick Wood was sentenced by the House 59
to a three-month term in jail for assaulting Representative Charles H. Porter. Although there is
no doubt that Mr. Woods’s period of incarceration extended beyond the date of adjournment, it
was not challenged and, therefore, there is no judicial opinion addressing the issue.
In 1876, the House established a select committee to investigate the collapse of Jay Cooke & 60
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 61
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 62
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 authority. Moreover, the Court rejected any reliance on the English and colonial
precedents establishing the source and extent of Congress’s contempt power. The Court stated
[w]e are of opinion that the right of the House of Representatives to punish the citizen for a
contempt of its authority or a breach of its privileges can derive no support from the

58 Id.
59 See 2 HindsPrecedents, supra note 22 at §§ 1628-629.
60 See 2 HindsPrecedents, supra note 22 at § 1609. It should also be noted that the Speaker also reported Mr.
Kilbourn’s contempt to the District Attorney for the District of Columbia pursuant to the 1857 criminal contempt
statute. According to records, the District Attorney presented the case to a grand jury and received an indictment for
five counts of contempt. The District Attorney requested the Mr. Kilbourn be turned over to his custody for trial. The
House, however, after considerable debate, adopted a resolution instructing the Sergeant-at-Arms not to release Mr.
Kilbourn. See 4 CONG. REC. 2483-2500, 2513-2532 (Apr. 15-16 1876). Although the Supreme Court later indicated, in
the case of In re Chapman, 166 U.S. 661, 672 (1897), that the double jeopardy clause of the Constitution would not
prohibit a criminal prosecution of a witness for contempt of Congress after he had been tried at the bar of the House
under the inherent contempt power, subsequent developments in the interpretation of the double jeopardy clause
suggest that this aspect of the Chapman decision is no longer good law. See Grafton v. United States, 206 U.S. 333
(1907); Waller v. Florida, 397 U.S. 387 (1970); Columbo v. New York, 405 U.S. 9 (1972). However, it appears that
where the sanction imposed pursuant to the inherent contempt power is intended to be purely coercive and not punitive,
a subsequent criminal prosecution would be permissible since the double jeopardy clause bars only dual criminal thst
prosecutions. See S.Rept. No. 95-170, 95 Cong., 1 Sess., 89 (1977) (stating that[o]nce a committee investigation
has terminated, a criminal contempt of Congress citation under 2 U.S.C. § 192 might still be referred to the Justice
Department if the Congress finds this appropriate. Such prosecution for criminal contempt would present no double th
jeopardy problem.); see also Hearings Before the Senate Committee on Governmental Affairs on S. 555, 95 Cong., st
1 Sess., 798-800 (1977).
61 See 2 HindsPrecedents, supra note 22 at § 1609.
62 Kilbourn v. Thompson, 103 U.S. 168, 189-90 (1881).

precedents and practices of the two Houses of the English Parliament, nor from the adjudged
cases in which the English courts have upheld these practices. Nor, taking what has fallen
from the English judges, and especially the later cases on which we have just commented, is
much aid given to the doctrine, that this power exists as one necessary to enable either House 63
of Congress to exercise successfully their function of legislation.
The Court held that the investigation into the real estate pool was not undertaken by the
committee pursuant to one of Congress’s constitutional responsibilities, but rather was an attempt
to pry into the personal finances of private individuals, a subject that could not conceivably result
in the enactment of valid legislation. According to the Court, because Congress was acting
beyond its constitutional responsibilities, Mr. Kilbourn was not legally required to answer the
questions asked of him. In short, the Court held that
no person can be punished for contumacy as a witness before either House, unless his
testimony is required in a matter into which that House has jurisdiction to inquire, and we
feel equally sure that neither of these bodies possesses the general power of making inquiry 64
into the private affairs of the citizen.
In addition, the Court indicated that the investigation violated the doctrine of separation of
powers because judicial bankruptcy proceedings were pending relating to the collapse of the real
estate pool and, therefore, it might be improper for Congress to conduct an investigation that 65
could interfere with the judicial proceedings. The Court specifically challenged Congress’s
assertion that there were no other viable remedies available to the government to retrieve the lost 66
funds. Thus, the Court concluded that
the resolution of the House of Representatives authorizing the investigation was in excess of
the power conferred on that body by the Constitution; that the committee, therefore, had no
lawful authority to require Kilbourn to testify as a witness beyond what he voluntarily chose
to tell; that the orders and resolutions of the House, and the warrant of the speaker, under
which Kilbourn was imprisoned, are, in like manner, void for want of jurisdiction in that 67
body, and that his imprisonment was without any lawful authority.
Finally, in dicta, the Court indicated that the contempt power might be upheld where Congress
was acting pursuant to certain specific constitutional prerogatives, such as disciplining its
Members, judging their elections, or conducting impeachment proceedings.
Although the precedential value of Kilbourn has been significantly limited by subsequent case
law, the case continues to be cited for the proposition that the House has no power to probe into
private affairs, such as the personal finances of an individual, on which legislation could not be
enacted. The doubts raised by Kilbourn about the scope of Congress’s contempt power have
essentially been removed by later cases sanctioning the use of the power in investigations 68
conducted pursuant to Congress’s authority to discipline its Members, to judge the elections of

63 Id. at 189.
64 Id.
65 273 U.S. 135 (1927).
66 Id. at 194 (questioning[h]ow could the House of Representatives know, until it had been fairly tried, that the courts
were powerless to redress the creditors of Jay Cooke & Co.? The matter was still pending in a court, and what right had
the Congress of the United States to interfere with a suit pending in a court of competent jurisdiction?).
67 Id. at 196.
68 In Re Chapman, 166 U.S. 661 (1897).

its Members,69 and, most importantly, to probe the business and conduct of individuals to the 70
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 71
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 72
was calculated to elicit.” The Court in McGrain was willing to presume that the investigation 73
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 74
the Capitol jail. The purpose of the imprisonment or other sanction may be either punitive or 75
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. One commentator has concluded that the procedure followed
by the House in the contempt citation that was at issue in Anderson v. Dunn is typical of that
employed in the inherent contempt cases.
These traditional methods may be explained by using as an illustration Anderson v. Dunn. ...
In 1818, a Member of the House of Representatives accused Anderson, a non-Member, of
trying to bribe him. ... The House adopted a resolution pursuant to which the Speaker
ordered the Sergeant-at-Arms to arrest Anderson and bring him before the bar of the House
(to answer the charge). When Anderson appeared, the Speaker informed him why he had
been brought before the House and asked if he had any requests for assistance in answering
the charge. Anderson stated his requests, and the House granted him counsel, compulsory
process for defense witnesses, and a copy, of the accusatory letter. Anderson called his

69 Barry v. United States ex rel Cunningham, 279 U.S. 597 (1929).
70 McGrain v. Daughery, 273 U.S. 135 (1927).
71 Id.
72 Id. at 177.
73 Id. at 177-178; see also ICC v. Brimson, 154 U.S. 447 (1894). It has been said that McGrain “very clearly removed
the doubt [that had existed after Kilbourn v. Thompson] as to whether Congress could force testimony in aid of
legislation.” Moreland, supra note 57, at 222. Although McGrain and Sinclair v. United States, 279 U.S. 263 (1929),
involved inquires into the activities of private individuals, there was a connection to property owned by the United
States and, therefore, it could not be said that purely personal affairs were the subjects of the investigations.
74 Jurney v. MacCracken, 294 U.S. 125, 147 (1935).
75 McGrain v. Daugherty, 273 U.S. at 161.

witnesses; the House heard and questioned them and him. It then passed a resolution finding
him guilty of contempt and directing the Speaker to reprimand him and then to discharge
him from custody. The pattern was thereby established of attachment by the Sergeant-at-
Arms; appearance before the bar; provision for specification of charges, identification of the
accuser, compulsory process, counsel, and a hearing; determination of guilt; imposition of 76
When a witness is cited for contempt under the inherent contempt process, prompt judicial review 77
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 78
acted in a manner within its jurisdiction, and (b) whether the contempt proceedings complied 79
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 80
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 81
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 82
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. 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 83
is the alternative where the individual proves contumacious.

76 Thomas L. Shriner, Jr., Legislative Contempt and Due Process: The Groppi Cases, 46 IND. L. J. 480, 491 (1971)
[hereinafter Shriner].
77 See Marshall v. Gordon, 243 U.S. 521 (1917); see also United States v. Fort, 443 F.2d 670, 676 (D.C. Cir. 1970);
Theodore Sky, Judicial Review of Congressional Investigations: Is There an Alternative to Contempt, 31GEO. WASH. L.
REV. 399, 400, n.3 (1962) [hereinafter Sky].
78 Jurney v. MacCracken, 294 U.S. 125, 147 (1935); see also Kilbourn v. Thompson, 103 U.S. 168, 196 (1880); Ex
Parte Nugent, 18 F. 471 (D.D.C. 1848).
79 Groppi v. Leslie, 404 U.S. 496 (1972).
80 Id.
81 For a discussion of these statutory limitations on the contempt power see infra at notes 279-351 and accompanying
82 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).
83 Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 230-31 (1821) (emphasis added).

Finally, in Kilbourn v. Thompson, the Court suggested that in certain cases where the Congress
had authority to investigate, it may compel testimony in the same manner and by use of the same
means as a court of justice in like cases. Specifically, the Court noted that “[w]hether the power
of punishment in either House by fine or imprisonment goes beyond this or not, we are sure that
no person can be punished for contumacy as a witness before either House, unless his testimony 84
is required in a matter into which that House has jurisdiction to inquire ....” 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 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,
compared to the plenary review accorded by the courts in cases of conviction under the criminal
contempt statute.
There are also certain limitations on the inherent contempt process. Although the contemnor can
be incarcerated until he agrees to comply with the subpoena, imprisonment may not extend 85
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 86
bar. Because of these drawbacks, the inherent contempt process has not been used by either 87
body since 1935. 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 88
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 89
contempt being made by the full body.

84 Kilbourn v. Thompson, 103 U.S. 168, 190 (1881) (emphasis added).
85 Watkins v. United States, 354 U.S. 178, 207, n.45 (1957); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 231 (1821).
86 See S.Rept. No. 95-170, 95th Cong., 1st Sess., 97 (1977); see also Rex E. Lee, Executive Privilege, Congressional
Subpoena Power, and Judicial Review: Three Branches, Three Powers, and Some Relationships, 1978 B.Y.U. L. REV.
231, 255 n. 71 (1978) [hereinafter Lee].
87 4 DESCHLERS PRECEDENTS OF THE U.S. HOUSE OF REPRESENTATIVES, ch. 15, § 17, 139 n.7 (1977) [hereinafter
Deschler’s Precedents]; see also Lee, supra note 86, at 255.
88 See Beck, supra note 21, at 4; ENERST J. EBERLING, CONGRESSIONAL INVESTIGATIONS 289 (1928) [hereinafter
89 For example, in 1865, the House appointed a select committee to inquiry into an alleged breach of privilege
committed by Mr. A.P. Field for assaulting a Member of the House. 72 CONG. GLOBE, 38th Cong., 2d Sess., 371 (1865).
After taking testimony, the committee recommended, and the House adopted, a resolution directing the Speaker to
reprimand Field at the bar of the House. Id. at 971, 974.

As has been indicated, although the majority of the inherent contempts by both the House and the
Senate was conducted via trial at the bar of the full body, there is historical evidence to support
the notion that this is not the exclusive procedure by which such proceeding can occur. This
history, when combined with a 1993 Supreme Court decision addressing the power of Congress 90
to make its own rules for the conduct of impeachment trials, strongly suggests that the inherent
contempt process can be supported and facilitated by the conduct of evidentiary proceedings and
the development of recommendations at the committee level.
Actually, the consideration of the use of committees to develop the more intricate details of an
inquiry into charges of contempt of Congress date back to the very first inherent contempt
proceedings of Messrs. Randall and Whitney in 1795. As discussed above, in these cases the
House appointed a Committee on Privileges to report a mode of procedure. The Committee
reported the following resolution, which was adopted by the full House of Representatives:
Resolved, That the said Robert Randall and Charles Whitney be brought to the bar of the
House and interogated by the Speaker touching the information given against them, on
written interrogatories, which with the answers thereto shall be entered into the minutes of
the House. And that every question proposed by a Member be reduced to writing and a
motion made that the same be put by the Speaker. That, after such interrogatories are
answered, if the House deem it necessary to make any further inquiry on the subject, the 91
same be conducted by a committee to be appointed for that purpose.
According to the Annals of Congress, the Committee’s language sparked a debate concerning the
proper procedures to be used, including a discussion regarding whether the use of such a select 92
committee was proper. At least one Representative “was convinced that the select committee 93
was alone competent to taking and arranging the evidence for the decision of the House.” While
others noted that “the investigation of facts is constantly performed by select committees. ... [The 94
committee’s] report is not to be final, it is to be submitted to the House for final decision.” It
was recommended that, “the subject should be remanded to a committee, which would save a 95
good deal of time.” Other Members, however, objected to the use of a select committee to hear
evidence of this magnitude on the grounds that it would be:
highly improper for the witness to be sworn by a select committee, and that committee to
send for the Members and have them sworn and examined in that private way. However
troublesome and difficult, the House must meet all the questions and decide them on this 96
Ultimately, it appears that none of the proceedings in this case was conducted before a select
committee. That said, Congress’s interpretation of its own powers and prerogatives is significant.
It is clear that during the very first exercise of Congress’s power of inherent contempt, the House

90 See United States v. Nixon, 506 U.S. 224 (1992).
91 See 2 HindsPrecedent, supra note 22 at § 1599 (emphasis added).
92 See 5 ANNALS OF CONG. 188 (1792).
93 See id. (statement of Rep. Baldwin).
94 Id. at 189 (statement of Rep. W. Smith).
95 Id. at 190 (statement of Rep. W. Smith).
96 Id. at 188 (statement of Rep. Hillhouse).

allowed for the possibility that at least some of the proceedings could occur before a committee,
rather than at the bar of the House.
This early precedent was finally invoked in 1836, when after the assault of reporter Robert Codd
by reporter Henry Wheeler on the House floor, the House committed the examination of a
contempt and breach of privilege to a select committee. The House adopted the following
resolution empowering the committee to conduct a contempt investigation:
Resolved, That a select committee be forthwith appointed, whose duty it shall be forthwith to
inquiry into an assault committed within the Hall of the House of Representatives this
morning, while this House was in session and for and on account of which two persons are
now in custody of the Sergeant-at-Arms; and said committee are to make their report to this
House; and that said committee be authorized to administer oaths and to cause the attendance 97
of witnesses.
The Committee’s report noted that Mr. Wheeler admitted his offense and included a 98
recommendation that the punishment not be vindictive. The report also contained three
resolutions that were considered by the full House. The first found Mr. Wheeler guilty of
contempt and breach of the privileges of the House, and was adopted. The second, which was
amended on the floor prior to adoption, excluded Mr. Wheeler from the floor of the House for the
remainder of the session. Finally, the third resolution, which called for Mr. Wheeler to be taken
into custody for the remainder of the session, was also amended on the floor prior to adoption to 99
simply discharge Mr. Wheeler from custody.
Another example of the use of select committee to hear a contempt trial occurred in 1865, when it
was alleged that Mr. A.P. Field assaulted Congressman William Kelley. Similar to the contempt
proceedings of Mr. Wheeler, the House adopted the following resolution authorizing a select
committee to conduct an examination of the charges:
Be it Resolved, That a select committee of five members be appointed by the Speaker to
inquire into the said alleged breach of privilege; that the said committee have power to send
for persons and papers, and to examine witnesses; and that the committee report as soon as
possible all the facts and circumstances of the affair, and what order, if any, it is proper for
this House to take for the vindication of its privilege, and right, and duty of free legislation 100
and judgment.
During the debate on the resolution it was observed that proceeding in this manner would avoid a
trial by the full House, which, in the words of one Member, “would consume a great amount of
the public time which there is a pressing need to apply to the business of the Government, it is 101
better that the course should be adopted which is contemplated by the resolution ....”

97 2 Hinds’ Precedent, supra note 22 at § 1630.
98 See id.; see also H.Rept. 792, 24th Cong. 1st Sess., (1836).
99 Id.; see also Groppi v. Leslie, 404 U.S. 496, 501 n.4 (1972) (citing the Wheeler committee procedure as an example
of procedures followed by Congress in contempt cases).
100 CONG. GLOBE, 38th Cong., 2nd Sess., 371 (1865).
101 Id. (statement of Rep. Thayer).

The select committee, in its report to the full House, noted that it had heard the testimony of 102
several witnesses concerning the incident, including the voluntary statement of Mr. Field. Also
according to the Committee, Mr. Field was present for each of the witnesses and, in fact, several
of them were heard from at his request. Moreover, all of the witnesses were subject to 103
examination or cross-examination by Mr. Field. At the committee’s recommendation, a
resolution directing the Speaker to issue a warrant for Mr. Field’s arrest by the Sergeant-at-Arms 104
for the purpose of bringing him before the Speaker for a reprimand was adopted. It does not
appear that Mr. Field or his counsel was permitted to be present during the House’s consideration
of the committee’s report, nor does it appear that he was afforded an opportunity to address the
House prior to his formal reprimand. In fact, during the course of the reprimand, the Speaker
expressly referred to Mr. Field having “been tried before a committee of their members, and 105
ordered to be reprimanded at the bar of the House by their Presiding Officer,” which may be
interpreted as indicating that the committee’s proceedings were deemed to be sufficient in the
eyes of the House.
Although there is ample historical evidence of the presumed propriety of contempt proceedings
before committees of Congress, there has been no judicial ruling directly confirming the
Congress’s interpretation of its own contempt powers. In 1993, however, the Supreme Court 106
decided United States v. Nixon, which, while not a contempt case, involved an analogous
delegation of authority by the Senate to a select committee for the purposes of hearing evidence
regarding the impeachment of two federal judges. Specifically, the impeached judges challenged
the Senate’s procedure under Rule XI of the “Rules of Procedure and Practice in the Senate when
Sitting on Impeachment Trials,” which provides:
That in the trial of any impeachment the Presiding Officer of the Senate, if the Senate so
orders, shall appoint a committee of Senators to receive evidence and take testimony at such
times and places as the committee may determine, and for such purpose the committee so
appointed and the chairman thereof, to be elected by the committee, shall (unless otherwise
ordered by the Senate) exercise all the powers and functions conferred upon the Senate and
the Presiding Officer of the Senate, respectively, under the rules of procedure and practice in
the Senate when sitting on impeachment trials.
Unless otherwise ordered by the Senate, the rules of procedure and practice in the Senate
when sitting on impeachment trials shall govern the procedure and practice of the committee
so appointed. The committee so appointed shall report to the Senate in writing a certified
copy of the transcript of the proceedings and testimony had and given before the committee,
and such report shall be received by the Senate and the evidence so received and the
testimony so taken shall be considered to all intents and purposes, subject to the right of the
Senate to determine competency, relevancy, and materiality, as having received and taken
before the Senate, but nothing herein shall prevent the Senate from sending for any witness

102 Id. at 971.
103 Id.
104 Id. at 972-74.
105 Id. at 991 (emphasis added).
106 506 U.S. 224 (1993).

and hearing his testimony in open Senate, or by order of the Senate having the entire trial in 107
open Senate.
Judge Nixon argued that the use of a select committee to hear the evidence and witness testimony
of his impeachment violated the Senate’s constitutional duty to “try” all impeachments.
According to Judge Nixon, anything short of a trial before the full Senate was unconstitutional
and, therefore, required reversal and a reinstatement of his judicial salary. The Court held the
issue to be a non-justiciable political question. Chief Justice Rehnquist, writing for the Court,
based this conclusion upon the fact that the impeachment proceedings were textually committed
in the Constitution to the Legislative Branch. In addition, the Court found the “lack of finality and 108
the difficulty in fashioning relief counsel[led] against justiciability.” According to the majority,
to open “the door of judicial review to the procedures used by the Senate in trying impeachments 109
would ‘expose the political life of the country to months, or perhaps years, of chaos.’” The
Court found that the word “try” in the Impeachment Clause did not “provide an identifiable 110
textual limit on the authority which is committed to the Senate.” Justice Souter’s concurring
opinion noted that “[i]t seems fair to conclude that the [Impeachment] Clause contemplates that
the Senate may determine, within broad boundaries, such subsidiary issues as the procedures for 111
receipt and consideration of evidence necessary to satisfy its duty to ‘try’ impeachments.”
The Court’s affirmation of the Senate’s procedures with respect to the appointment of select
committees for impeachment trials, clearly indicates that the use of committees for contempt
proceedings–whether they be standing legislative committees, or select committees created by
resolution for a specific purpose–is a permissible exercise of each House’s Article I, section 5
rulemaking power. As such, it would appear that one of the suggested reasons for the apparent
abandonment of the use of Congress’s inherent contempt power, namely, that it became to
cumbersome and time consuming to try contemptuous behavior on the floor of the body, is no
longer compelling. The ability to utilize the committee structure for trials, evidentiary hearings,
and other procedural determinations appears to be supported not only by the historical records of
previous contempt proceedings, but also by the Court’s decision in Nixon.
While the Court in Nixon addressed the permissibility of using select committees in impeachment
trials, it says nothing about the rights or privileges that would be required to be afforded to the
accused. Similarly, in any contempt proceedings before a congressional committee, the question
of rights and privileges remains one that has not yet been directly addressed by the courts.
According to the Supreme Court in Groppi v. Leslie:
[t]he past decisions of this Court strongly indicate that the panoply of procedural rights that
are accorded a defendant in a criminal trial has never been thought necessary in legislative
contempt proceedings. The customary practice in Congress has been to provide the
contemnor with an opportunity to appear before the bar of the House, or before a committee, 112
and give answer to the misconduct charged against him.

107 Id. at 227, n. 1 (emphasis added).
108 Id. at 739.
109 Id. (quoting United States v. Nixon, 938 F.2d 239, 246 (D.C. Cir. 1991)).
110 Id. at 740.
111 Id. at 748 (Souter, J., concurring).
112 See Groppi v. Leslie, 404 U.S. 496, 500-01 (1972) (citing Jurney v. MacCracken, 294 U.S. 125, 143-144 (1935);
Kilbourn v. Thompson, 103 U.S. 168, 173-174 (1880); Anderson v. Dunn, 19 U.S.( 6 Wheat.) 204, 209-211 (1821);
Marshall v. Gordon, 243 U.S. 521, 532 (1917)).

The Court also suggested that “the length and nature of the [right to be heard] would traditionally 113
be left largely to the legislative body....” This deference to Congress in establishing its own
rules and procedures is consistent with the more recent decision in Nixon. Thus, it would appear
that while there is no definitive answer to the question of what rights the committee hearing a 114
contempt proceeding would be required to afford, so long as the minimum protections of notice
and opportunity to be heard are provided, the courts, it seems, will not interfere with Congress’s
decisions regarding proper procedure.
Congressional precedent would also appear to be a useful guide to the question of what process is
due. A review of early exercises of inherent contempt, discussed above, indicates that the
following procedures have been established: attachment by the Sergeant-at-Arms; appearance
before the bar; provision for specification of charges; identification of the accuser; compulsory
process; provision of counsel; a hearing; determination of guilt; and imposition of a penalty.
According to one commentator, “[t]his traditional procedure was followed by both houses of 115
Congress until they abandoned it for a more convenient statutory device.” Since these
procedures appear to be in excess of what the Court instructed was required in Groppi, it would
seem reasonable to conclude that any inherent contempt proceeding that conforms with these
traditions would likely satisfy judicial review.
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 116
beyond a House’s adjournment date. In 1857, a statutory criminal contempt procedure was 117
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 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 118
desired information from the witness after the criminal proceedings had been instituted. With

113 Id. at 503.
114 While the Supreme Court in Groppi limited its holding to requiring only notice and the opportunity to be heard, the
lower court in the same case suggested that the following rights were also necessary: representation by counsel; the
ability to compel the attendance of witnesses; an opportunity to confront any accusers; and the right to present a th
defense to the charges. See Groppi v. Leslie, 311 F.Supp. 772, 774 (W.D. Wisc. 1970), rev’d, 436 F.2d 326 (7 Cir.
1970), rev’d., 404 U.S. 496 (1972).
115 Shriner, supra note 76 at 491.
116 See Eberling, supra note 88 at 302-16.
117 Act of Jan. 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).
118 Beck, supra note 21 at 191-214. In the appendix to Becks 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 Becks

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

194, which state:

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 119
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 120
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 121
answers to certain questions posed by the committee. The select committee responded by 122
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 123
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 124
by the select committee and in the Senate by the Judiciary Committee.

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.
119 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).
120 2 U.S.C. § 194 (2000).
121 See Eberling, supra note 88 at 302-04.
122 H.R. 757, 34th Cong., 3d Sess. (1857).
123 42 CONG. GLOBE. 34th Cong., 3d Sess., 403-04 (1857) (discussing H.R. 757).
124 See id. at 425-26.

According to the legislative debate records and commentators, there was opposition to the bill on
several fronts. Some Members proposed an amendment expressly codifying Congress’s contempt
power for failure to comply with requests for documents or testimony, thereby resurrecting the 125
view that Congress did not possess any inherent power to punish for contempt. Others argued 126
that Congress’s inherent contempt powers rendered the proposed bill unnecessary. Still other
Members opposed the bill on the grounds that it violated the Fourth and Fifth Amendments of the
Constitution, because it sanctioned unreasonable searches and seizures, compelled persons to
incriminate themselves, and violated the prohibition on persons being punished twice for the 127
same offense (double jeopardy).
In response to arguments that such a statute was unnecessary given Congress’s inherent authority
to hold individuals in contempt, supporters made clear that the proposed bill was not intended in 128
any way to diminish Congress’s inherent contempt authority. Rather, supporters of the bill saw
it as designed to give Congress “additional authority, and to impose additional penalties on a
witness who fails to appear before an investigating committee of either House, or who, appearing, 129
fails to answer any question.” The main concern of proponents seems to have been Congress’s
ability to impose adequate punishments for contempts that occur near the end of a session,
especially in the House, where the prevailing view was that the Court’s opinion in Anderson v. 130131
Dunn prohibited terms of incarceration that extended beyond the adjournment of a session.
With respect to the arguments surrounding the Fourth and Fifth Amendments, supporters asserted
that the bill provided the protection of the judiciary, via a judicial trial, for the potential
contumacious witnesses. Moreover, supporters argued that the bill removed such witnesses “from
the passions and excitement of the Hall–where partisans may frequently, in political questions, 132
carry into the measures of punishment their party hostilities.”
The bill was ultimately passed by both the House133 and the Senate.134 According to one
commentator, the bill was adopted for three reasons:
[F]irst, to increase the power of either House of Congress to punish for contempt in cases of
contumacy of witnesses, ... second, to compel criminating testimony. A third reason,
although undoubtedly a minor one, was that the effect of the enactment of this legislation
would be to remove the trial of cases of contempt of either House of Congress from their
respective bars to the courts, where passion and partisanship would not influence the

125 See Eberling, supra note 88 at 309; see also supra notes 84-89 and accompanying text.
126 Id. at 311.
127 Id. at 309.
128 42 CONG. GLOBE, 34th Cong., 3d Sess., 404 (1857) (statement of Mr. Orr) (providing that “ Some gentlemen say that
the very fact of presenting this bill is an admission that the House has no power upon this subject, and that it negatives
the resolution which we have already adopted, that is, to take [Mr.] Simonton into custody and bring him before the
House to answer for his contempt. No such thing. The power of this House I believe is conceded by all ....”)
129 Eberling, supra note 88 at 306; see also 42 CONG. GLOBE, 34th Cong., 3d Sess., 405 (1857) (statement of Mr. Orr).
130 See supra notes 45-59 and accompanying text.
131 42 CONG. GLOBE, 34th Cong., 3d Sess., 404 (1857) (statement of Mr. Orr) (stating[s]uppose that two days before
the adjournment of this Congress there is a gross attempt on the privileges of this House by corrupt means of any
description; then the power of this House extends only to those two days. Is that an adequate punishment? Ought we
not then, to pass a law which will make the authority of the House respected; ....”).
132 Eberling, supra note 88 at 313 (citing 42 CONG. GLOBE, 34th Cong. 3d Sess., 427 (1857) (statement of Mr. Davis).
133 42 CONG. GLOBE, 34th Cong., 3d Sess., 433 (1857).
134 Id. at 445.

decision against the prisoner and where he would have a trial by jury and all the other 135
constitutional safeguards of court proceedings.
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 136
outlined in section 194, “the following steps precede judicial proceedings under [the statute]: 137
(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 138
determination by the Speaker to certify the report; [and] (4) certification by the Speaker to the 139
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 140
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. 141
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 142
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

135 Eberling, supra note 88 at 316.
136 The language of § 194 does not provide a complete picture of the process. For a more detailed explanation of the
workings of the procedure, reference should be made to the actual practice in the House and Senate. See 4 Deschlers
Precedents, supra note 87, at §§ 17-22.
137 In case of a defiance of a subcommittee subpoena, subcommittee approval of the contempt citation precedes
committee action on the matter.
138 See Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966).
139 4 Deschler’s Precedents, supra note 87, 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.
140 See, e.g., S.Rept. No. 95-170, 95th Cong., 1st Sess., 97 (1977).
141 United States v. Costello, 198 F.2d 200 (2d Cir. 1952), cert. denied, 344 U.S. 874 (1952); United States v.
Brewester, 154 F. Supp. 126 (D.D.C. 1957), revd 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).
142 See 4 Deschler’s Precedents, supra note 87, 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).

for its action.”143 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 144
question provides conflicting guidance. In Ex parte Frankfeld, 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. § 192, and were being held on a warrant based on the affidavit of a committee staff 145
member. The court ordered the witnesses released since the procedure, described as 146
“mandatory” by the court, 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 147
language of the statute, to submit the facts to the grand jury.
Similarly, in United States v. United States House of Representatives,148 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. 149
Attorney, he “is then required to bring the matter before the grand jury.”
Conversely, in Wilson v. United States,150 the United States Court of Appeals for the District of
Columbia Circuit concluded, based in part on the legislative history of the contempt statute and
congressional practice under the law, that the “duty” of the Speaker when certifying contempt
citations to the United States Attorney during adjournments is a discretionary, not a mandatory, 151
one. 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 152
or President of the Senate, rather than by the full House or Senate. This review of a
committee’s contempt citation, according to the court, may be inherently discretionary in nature,

143 2 U.S.C. § 194 (2000).
144 32 F.Supp 915 (D.D.C. 1940).
145 Id. at 916.
146 Id.
147 Id. (emphasis added).
148 United States v. United States House of Representatives, 556 F. Supp. 150, 151 (D.D.C. 1983).
149 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 prosecutors duty under 2 U.S.C. § 194, nor did it provide any basis for its statement to the effect that the
prosecutor may exercise discretion in determining whether to seek an indictment.
150 369 F.2d 198 (D.C. Cir. 1966).
151 Id. at 201-03.
152 Id. at 203-04.

whereas the prosecutor is simply carrying out Congress’s directions in seeking a grand jury 153
indictment. In Wilson, the defendants’ convictions were reversed because the Speaker had 154
certified the contempt citations without exercising his discretion. 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.
Alternatively, despite the similarity in the statutory language, there is an argument that the
functions of the Speaker and the President of the Senate are so different in nature under the
statutory scheme from those of the U.S. Attorney that to conclude that the function of the
prosecutor was intended to be discretionary simply because that is the interpretation given to the
function of the presiding officers is contrary to the understanding and intent of the 1857 Congress 155
that drafted the language. Nevertheless, it should be noted that the courts have generally
afforded United States Attorneys broad prosecutorial discretion, even where a statute uses 156
mandatory language. Moreover, prosecutorial discretion was the basis of the decision of the
U.S. Attorney not to present to the grand jury the contempt citation of Environmental Protection 157
Agency Administration Anne Gorsuch Burford.
While upholding the validity of 2 U.S.C. §§ 192 and 194, the courts have recognized that they are
criminal provisions and have reversed convictions for contempt where limitations dictated by the 158
language of the statute itself or the Constitution have been exceeded.
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 159
contempt of Congress procedures against an executive branch official acting on instructions by

153 See id.
154 Id. at 205.
155 See id. at 201-02.
156 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).
157 See Examining and Reviewing the Procedures That Were Taken by the 0ffice of the U.S. Attorney for the District of
Columbia in Their Implementation of a Contempt Citation that Was Voted by the Full House of Representatives against
the Then-Administrator of the Environmental Protection Agency, Anne Gorsuch Burford, Hearing before the House thst
Committee on Public Works and Transportatlon, 98 Cong., 1 Sess., 30 (1983) [hereinafter Burford Contempt
Prosecution Hearing]. The U.S. Attorney also suggested that it would have been inappropriate for him to institute a
criminal suit against Burford while a related civil action brought by the Justice Department against the House was
pending). See Letter, from U.S. Attorney Stanley Harris to Speaker Thomas P. O’Neill of Dec. 27, 1982, reprinted in, thst
H.Rept. 98-323, 98 Cong., 1 Sess., 48-49 (1983). Of course, as a practical matter, even if the United States Attorney
is required to refer a contempt under 2 U.S.C. §§ 192, 194 to the grand jury, there is no apparent requirement that the
United States Attorney concur in the prosecution of any subsequent indictment. See FED. R. CRIM. PRO. 7(c); see also th
United States v. Cox, 342 F.2d 167 (5 Cir. 1965).
158 See infra notes 279-325 and accompanying text.
159 2 U.S.C. §§ 192, 194 (2000).

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-160

1980s, and has been the basis of several recent claims with respect to pending congressional 161

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 162
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 163
grounds that they were “enforcement sensitive.” A subcommittee and ultimately the full House
Committee on Public Works and Transportation, approved a criminal contempt of Congress 164
citation and forwarded it to the full House for its consideration. On December 16, 1982, the full 165
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 166
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 167
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 168
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 169
documents to the Congress. Throughout the litigation and subsequent negotiations, however,

160 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].
161 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).
162 See generally, Congressional Proceedings Against Anne M. Gorsuch, Administrator, U.S. Environmental Protection
Agency, for Withholding Subpoenaed Documents Relating to the Comprehensive Environmental Response, th
Compensation and Liability Act of 1980, H.Rept. 97-968, 97 Cong. (1982) [hereinafter Gorsuch Contempt Report].
163 Id. at 42-43.
164 Id. at 57, 70.
165 128 CONG. REC. 31,776 (1982).
166 See generally, United States v. United States House of Representatives, 556 F. Supp. 150 (D.D.C. 1983).
167 Id. at 152.
168 Id. (stating that[c]onstitutional claims and other objections to congressional investigations may be raised as
defenses in a criminal prosecution”).
169 See LOUIS FISHER, THE POLITICS OF EXECUTIVE PRIVILEGE, 126-130 (Carolina Academic Press., 2004) [hereinafter

the U.S. Attorney refused to present the contempt citation to a grand jury for its consideration on 170
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
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 171
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 172
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 173
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 174
President of his functions under the Constitution.
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

170 2 U.S.C. § 194 (1982) (stating that[the Speaker of the House or President of the Senate] shall so certify, ... to the
appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.”)
(emphasis added).
171 See Olson Memo, supra note 160 at 102, 114-15, & 118-28.
172 Id. at 129-134 (stating that “[t]he Executive’s exclusive authority to prosecute violations of the law gives rise to the
corollary that neither the Judicial nor Legislative Branches may directly interfere with the prosecutorial discretion of
the Executive by directing the Executive Branch to prosecute particular individuals.).
173 See id. at 102, 135-142.
174 Id. at 102.

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 175
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 176
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 177
contempt power.
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 178
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 179
contract law principles. Moreover, principles of due process require that the government adhere 180
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 181
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 Anti-Deficiency 182183
Act, for which the DOJ is solely responsible. Such a claim of immunization in the contempt

175 Id. at 140, n. 42 (internal citation omitted).
176 Cooper Memo, supra note 160 at 86.
177 Id. (citing INS v. Chadha, 462 U.S. 919, 962-66 (1983); Buckely v. Valeo, 424 U.S. 1 (1976); United States v.
Brown, 381 U.S. 437 (1965); United States v. Levett, 328 U.S. 303, 317 (1940)). It is important to note that the 1984
OLC opinion pre-dates the Supreme Court’s decisions in Morrison v. Olson, 487 U.S. 654 (1988) and Mistretta v.
United States, 488 U.S. 361 (1989), both of which appear to undercut portions of the OLCs reasoning.
178 See, e.g., United States v. Hogan, 862 F.2d 386, 388 (1st Cir.1988); United States v. Brown, 801 F.2d 352, 354 (8th
Cir.1986); United States v. Harvey, 791 F.2d 294, 300-01 (4th Cir.1986); United States v. Irvine, 756 F.2d 708, 710-11 th
(9 Cir.1985).
179 Id.
180 See Mabry v. Johnson, 467 U.S. 504, 509 (1984); Santobello v. New York, 404 U.S. 257, 262 (1971) (when a plea
rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be fulfilled”); United States v. (Jerry) Harvey, 869 F.2d 1439, 1443-th
44 (11 Cir.1989); Innes v. Dalsheim, 864 F.2d 974, 978 (2d Cir.1988), cert. denied, 493 U.S. 809 (1989); In re Arnett, th
804 F.2d 1200, 1202-03 (11 Cir.1986).
181 See Legislative Branch Appropriations Act of 1993, P.L. 102-392 § 207(a), 106 Stat. 1703, 1719 (1992) (codified at
44 U.S.C. § 501 note); see also Legislative Branch Appropriations Act of 1995, P.L. 103-283 § 207(2), 108 Stat. 1423,
1440 (1994) (amending section 207(a) of the 1993 Act).
182 See 31 U.S.C. § 1341 (2000).

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 184
compliance with a congressional directive. Thus, a finding of inherent contempt against an 185
executive branch officials, does not appear to be subject to the President’s Pardon power–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 Congress.
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 is not
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 186
contempt authority. This understanding has been reflected in numerous Supreme Court 187
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 188
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 189
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 190191
department,” or to support inquires 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

183 See Memorandum for Emily C. Hewitt, General Counsel, GSA, Involvement of the Government Printing Office in
Executive Branch Printing and Duplicating, May 31, 1996.
184 See supra at 12-14.
185 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.).
186 See supra at 19-22.
187 See, e.g., Journey v. McCracken, 294 U.S. 125 (1935); McGrain v. Daugherty, 273 U.S. 135 (1927); In re
Chapman, 166 U.S. 661 (1897).
188 42 CONG. GLOBE 429 (1857).
189 Id. at 431 (statement of Rep. Dunn) (asking that “if the committee considered, and if they did so consider, what is
their judgment in reference to the effect of this bill upon communications by the universal law regarded as privileged,
to attorneys and counselors at law? Are they required to divulge things communicated to them in confidence, and for
wise and high purposes of public purpose by their clients?).
190 Id.
191 Id.

testifying there. That is the common law of Parliament.”192 Later in the same debate, a proposed
amendment to expressly recognize the attorney-client privilege in the statute was overwhelmingly 193
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 194
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 195
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 196
committees established by the House. Former President Tyler testified and former President 197
Adams filed a deposition detailing the uses of the fund during their Administrations. In 198
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 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 executive branch.
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 199
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), Attorney General Janet Reno (1998), and White House Chief of

192 Id. (statement of Rep. Orr).
193 Id. at 441-43.
194 Id. at 431.
(4th ed. 2007) (citing 16 CONG. GLOBE 698 (April 20, 1846)).
196 Id. (citing H.Rept. 684, 29th Cong., 1st Sess., 8-11 (1846)).
197 Id. (citing H.Rept. 686, 29th Cong., 1st Sess., 22-25 (1846)).
198 Id. (citing H.Rept. 686, 29th Cong., 1st Sess., 4-7 (1846)).
199 We have been unable to locate any record of a vote by a Senate committee or subcommittee of a contempt citation
against an executive branch official.

Staff Joshua Bolten (2007).200 In every instance, save for John M. Quinn,201 a claim of executive
privilege was asserted, and in each instance there was either full or substantial compliance with 202
the demands of the committee that had issued the subpoena.
As an alternative to both the inherent contempt power of each House and the criminal contempt 203204
statutes, in 1978 Congress enacted a civil contempt procedure, which is applicable only to 205
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 206
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 207
opportunity to comply before actually [being] ordered to do so by a court.” It is solely within 208
the discretion of the Senate whether or not to use such a two-step enforcement process.

200 In 2007, the House Judiciary Committee also held former White House Counsel Harriet Miers in contempt marking
the first time that a former Executive Branch official has ever been so held.
201 Mr. Quinn was directed by President Clinton to assert a “protective claim of privilege, which was abandoned and
never “formalizedwhen a floor vote for contempt was scheduled and the documents in question were released.
202 See Fisher, supra note 169 at 111-34.
203 The inadequacies of the inherent and criminal contempt procedures had been recognized by the Congress itself, the
courts, and by students of the subject. See, e.g., Representation of Congress and Congressional Interests In Court, th
Hearings before the Senate Judiciary Subcommittee on Separation of Powers, 94 Cong, 2d Sess., 556-68 (1976);
United States v. Fort, 443 F.2d 670, 677-78 (D.C. Cir. 1970), cert. denied, 403 U.S. 932 (1971); Tobin v. United States,
306 F.2d 270, 275-76 (D .C. Cir. 1962), cert. denied, 371 U.S. 902 (1962); Sky, supra note 77.
204 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. § 1364 (2000)).
205 The conference report accompanying the legislation which established the procedure explained that the relevant
House connuittees had not yet considered the proposal for judicial enforcement of House subpoenas. H.Rept. 95-1756, th
95 Cong., 2d Sess., 80 (1978).
206 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) (2000). See 28 U.S.C. § 1364(d) (2000). 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) (2000).
207 S.Rept. No. 95-170, 95th Cong., 1st Sess., 89 (1977).
208 Id. at 90.

Regardless of whether the Senate seeks the enforcement of, or a declaratory judgement 209
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 210
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 211
Congress in enforcing the subpoena. If the individual still refuses to comply, he may be tried by 212
the court in summary proceedings for contempt of court, with sanctions being imposed to 213
coerce their compliance.
Without affecting the right of the Senate to institute criminal contempt proceedings or to try an 214
individua1 for contempt at the bar of the Senate, this procedure gives the Senate the option of a 215
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

209 Id. at 4.
210 See U.S. CONST. Art. 1, § 6, cl. 3.
211 S.Rept. No. 95-170, 95th Cong., 1st Sess., 94 (1977).
212 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) (2000); see also S.Rept. No. 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 contempt statute, for a committee to seek a court order to enforce its subpoenas. The standing order states
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 termcommittee’’ means any standing or special committee of the
Senate, or any duly authorized subcommittee thereof, or the Senate members of any joint
See S. Jour. 572, 70-1, May 28, 1928. It is unclear what effect, if any, the passage of the civil contempt 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.
213 28 U.S.C. § 1364(b) (2000).
214 Not only do the inherent and criminal contempt procedures remain available as an alternative to the civil contempt
mechanism, but the legislative history indicates that the civil and criminal statutes could both be employed in the same
case. “Once a committee investigation has terminated, a criminal contempt of Congress citation under 2 U.S.C. § 192
might still be referred to the Justice Department if the Congress finds this appropriate. Such prosecution for criminal thst
contempt would present no double jeopardy problem.” S.Rept. No. 95-170, 95 Cong., 1 Sess., 95 (citations omitted); thst
see also Hearings Before the Senate Committee on Governmental Affairs on S. 555, 95 Cong., 1 Sess., 798-800
(1977) [hereinafter Civil Contempt Hearing].
215 For a more detailed analysis of the civil contempt procedure and a comparison with the other options available to the
Senate when faced with a contempt, See S.Rept. No. 95-170, 95th Cong., 1st Sess., 16-21, 40-41, 88-97; see also Civil
Contempt Hearing, supra note 212, at 59-62, 69 et seq. (statement of Senator Abourezk and attachments); 123 CONG.
REC. 20,956-21,019 (June 27, 1977).

incentive for compliance; namely, the termination of punishment.216 Since the statute’s enactment
in 1979, the Senate has authorized the Office of Senate Legal Counsel to seek civil enforcement
of a subpoena for documents or testimony at least 6 times, the last in 1995. None has been against
executive branch officials.
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 217
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 218
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 219
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 220
type of ‘political question’ from which ... the courts [should] abstain.” In response, Congress

216 The act specifies that “an action, contempt proceeding, or sanction .... shall not abate upon adjournment sine die by
the Senate at the end of a Congress if the Senate or the committee or subcommittee ... certifies to the court that it
maintains its interest in securing the documents, answers, or testimony during such adjournment.” 28 U.S.C. § 1364(b)
(2000). In the first case brought under the new procedure, the witness unsuccessfully argued that the possibility of
indefinite incarceration” violated the due process and equal protection provisions of the Constitution, and allowed for
cruel and unusual punishment. Application of the U.S. Senate Permanent Subcommittee on Investigations, 655 F.2d
1232 (D.C. Cir.), cert. denied, 454 U.S. 1084 (1981).
217 S.Rept. No. 95-170, 95th Cong., 1st Sess., 93.
218 28 U.S.C. § 1364(a) (2000). The statutory exception was explained in the Senates 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. No. 95-170, 95th Cong., 1st Sess., 91-92
219 See Senate Select Committee on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51 (D.D.C. 1973).
220 Executive Privilege-Secrecy in Government: Hearings Before the Subcomm. on Intergovernmental Relations of the

amended the proposed legislation excluding from its scope federal officers and employees acting
in their official capacity. However, as noted in a report from the House Judiciary Committee in

1988, the exclusion was to apply only in cases in which the President had directed the recipient of 221

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
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 222
efforts abroad. In addition, several special panels have been specifically granted the authority 223
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, 224
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 225
(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.
Among the more prominent attempts at utilizing the authority to make applications in court
granted by a House of Congress to a select committee occurred during the investigation into the

Senate Comm. on Government Operations, 94th Cong., 1st Sess., 117 (1975).
221 Clarifying the Investigatory Powers of the United States Congress, H.Rept. 100-1040, 100th Cong. 2d Sess., 2
222 See supra note 19; see also infra notes 228-232 and accompanying text.
223 Id.
224 See H.Res. 12, 100th Cong., 1st Sess., §§ 3, 8 (1987) (emphasis added).
225 This resolution was initially added to the House Rules as Rule L by the 97th Congress. See H.Res. 5, 97th Cong.
(1981). The 106th Congress re-codified the rules and this provision became House Rule VIII, which is where it remains th
today as amended. See H.Res. 5, 106 Cong. (1999).

Iran-Contra affair. In 1987, the Senate Select Committee on Secret Military Assistance to Iran and
the Nicaraguan Opposition issued an order requiring that former Major Richard V. Secord execute
a consent directive authorizing the release of his offshore bank records and accounts to the 226
Committee. When Mr. Secord refused to sign the consent directive, the Committee sought to 227
obtain a court order directing him to comply. While the Committee did not prevail in the
Secord litigation, the matter was not disposed of on jurisdictional grounds. Specifically, the
district court noted its jurisdiction pursuant to 28 U.S.C. § 1364, as Mr. Secord was a private
citizen. Moreover, there is no mention or indication of any challenge to the Committee’s ability to
seek such an order. Rather, the case was decided on Fifth Amendment grounds, with the court 228
holding that there was a testimonial aspect to requiring the signing of the consent directive.
Thus, the court concluded that the Committee’s order was a violation of Mr. Secord’s Fifth 229
Amendment right against self-incrimination.
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 230
and participate in judicial actions. These include The October Surprise Investigation; The 231232
White House Travel Office Inquiry; The House Campaign Finance Investigation; The Select 233
Committee on National Security Commercial Concerns; and The Teamsters Election 234
Investigation. Again, while there is no record to indicate that any of these committees utilized
their authority to participate in judicial proceedings to bring a civil subpoena enforcement action,
the resolution language appears to indicate that such a suit was authorized by the full House.
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 235
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 236237
case.” Conversely, the federal-question jurisdiction statute, first enacted in 1875, while

226 Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition v. Secord, 664
F.Supp. 562, 563 (D.D.C. 1987).
227 Id.
228 Id. at 564-65.
229 Id. at 566. The ruling was not appealed because of the time strictures imposed on the House and Senate Select
Committees inquiry. It may be noted that in 1988 the Supreme Court adopted the Senates argument in a different
case, holding that such a directive is not testimonial in nature. See Doe v. United States, 487 U.S. 201 (1988).
230 See H.Res. 258, 102d Cong., 1st Sess., (1991).
231 See H.Res. 369, 104th Cong., 2d Sess., (1996).
232 See H.Res. 167, 105th Cong., 1st Sess., (1997).
233 See H.Res. 463, 105th Cong., 2d Sess., (1998).
234 See H.Res. 507, 105th Cong., 2d Sess., (1998).
235 U.S. CONST., Art. III, § 2, cl. 1.
236 See ERWIN CHEMERINSKY, FEDERAL JURISDICTION, 264 (3d Ed. 1999) (citing Osborn v. Bank of the United States, 22
U.S. (9 Wheat.) 738 (1824)).
237 See Act of Mar. 3, 1875, ch. 137, 18 Stat. 470 (codified as amended at 28 U.S.C. § 1331 (2000) (stating that[t]he
district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the
United States.).

containing almost identical language to Article III, has been interpreted by the Court to be much
narrower in scope. As the Court explained in Verlinden B.V. v. Central Bank of Nigeria:
Although the language of 1331 parallels that of the “Arising Under” Clause of Art. III, this
Court never has held that statutory “arising under jurisdiction is identical to Art. III arising
under” jurisdiction. Quite the contrary is true. ... [T]he many limitations which have been
placed on jurisdiction under 1331 are not limitations on the constitutional power of Congress
to confer jurisdiction on the federal courts ... Art. III “arising under” jurisdiction is broader 238
than federal-question jurisdiction under 1331 ....”
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.
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, 239
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 240
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 241
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 242
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 243244
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

238 Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 494-95 (1983) (internal quotation marks and citations
239 277 U.S. 376 (1928).
240 Id. at 378 (citing S. Res 195, 69th Cong., 1st Sess. (1926)).
241 Id. at 378-79.
242 Id. at 387.
243 Id. at 388 (citing McGrain v. Daugherty, 273 U.S. 135, 160-174 (1927)).
244 Id. (citing R.S. §§ 101-104, (codified as amended at 2 U.S.C. §§ 192, 194 (2000))).

under any circumstances might be covered by its words.”245 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 246
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 247
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, a 2006 opinion of the District Court for the Central District of 248
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 Implementation and Modernization Act of 249
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 250
jurisdiction of the committee,” implicitly delegated to Members to right to sue to enforce their 251
informational demands. The court, in rejecting this argument, relied on the Supreme Court’s 252
holding in Reed v. County Commissioners. Specifically, the court noted that Reed’s holding
“put Congress on notice that it was necessary to make authorization to sue to enforce 253
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. 254
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

245 Id. at 389.
246 Id.
247 It appears that the Courts decision in Reed prompted the Senate to adopt its Standing Order. See supra note 209.
248 Waxman v. Thompson, No. 04-3467, slip op. (C.D. Cal. July 24, 2006).
249 Id. at 2.
250 5 U.S.C. § 2954 (2000) (emphasis added).
251 Waxman v. Thompson, No. 04-3467, slip op. at 21 (C.D. Cal. July 24, 2006).
252 Id. at 21, n. 42.
253 Id.
254 366 F. Supp. 51 (D.D.C. 1973).

tecum.255 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; 256
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 257
“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 258
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 259
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 260
jurisdictional amount requirement for federal question jurisdiction,” but also that Congress
specifically removed the amount in controversy requirement for federal question jurisdiction in 261
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 262
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 263
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 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, prior to the 110th Congress, there have been no previous attempts by a
House of Congress to seek civil enforcement of subpoenas in federal court authorized solely by

255 Id. at 61.
256 Id. at 55-61.
257 28 U.S.C. § 1331 (1970).
258 Senate Select Committee, 366 F. Supp. at 59 (citing Holt v. Indiana Mfg. Co., 176 U.S. 68 (1900); United States v.
Sayward, 160 U.S. 493 (1895)) (emphasis in original).
259 Id. at 61 (stating that[e]ach of plaintiffs’ assertions ... regarding the amount-in-controversy are legally inadequate,
and finding no possible valuation of the matter which satisfies the $10,000 minimum, the Court cannot assert
jurisdiction by virtue of § 1331.”).
260 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).
261 See P.L. 96-486 § 2(a), 94 Stat. 2369 (1980).
262 567 F.2d 121
263 Waxman v. Thompson, No. 04-3467, slip op. at 29 (C.D. Cal. July 24, 2006) (emphasis added).

resolution of a single House,264 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.
In June of 1976, subpoenas were issued to the American Telephone and Telegraph Company
(AT&T) by the Subcommittee on Oversight and Investigations of the House Committee on
Interstate and Foreign Commerce. The Subcommittee was seeking copies of “all national security
request letters sent to AT&T and its subsidiaries by the FBI as well as records of such taps prior to 265
the time when the practice of sending such letters was initiated.” Before AT&T could comply
with the request, the Department of Justice (DOJ) and the Subcommittee’s chairman,
Representative John Moss, entered into negotiations seeking to reach an alternate agreement 266
which would prevent AT&T from having to turn over all its records. When these negotiations
broke down, the DOJ sought an injunction in the District Court for the District of Columbia
prohibiting AT&T from complying with the Subcommittee’s subpoenas.
The House of Representatives responded to the litigation by authorizing Representative Moss to
intervene in the suit on behalf of the Committee on Interstate and Foreign Commerce and the 267
House of Representatives. Specifically, the authorization for intervention was accomplished by
House Resolution, which provided that Chairman Moss was to represent the Committee and the
full House “to secure information relating to the privacy of telephone communications now in the 268
possession of [AT&T] for the use of the Committee and the full House.” In addition, the
resolution authorized Chairman Moss to hire a special counsel, use not more than $50,000 from
the contingent fund of the Committee to cover expenses, and to report to the full House on 269
matters related as soon as practicable. The resolution was adopted by the House by a vote of 270

180-108 on August 26, 1976.

Chairman Moss’s intervention into the proceedings was noted by the district court, and does not 271
appear to have been contested by either AT&T or the DOJ. Chairman Moss remained an
intervener pursuant to the House Resolution through the district court proceeding and two appeals
to the Court of Appeals for the District of Columbia Circuit until an agreement was reached with
respect to the disclosure of the documents sought.
A second intervention authorization, involving litigation between Ashland Oil and the Federal
Trade Commission (FTC), also occurred in 1976. This case arose when Ashland Oil sought to

264 The recent litigation filed during the 110th Congress by the House Judiciary Committee represents the first such
attempt at civil enforcement. See infra notes 405-416 and accompanying text.
265 United States v. American Telephone & Telegraph, 551 F.2d 384, 385 (D.C. Cir. 1976).
266 Id. at 386. The precise details of the delicate negotiations between the DOJ and the Subcommittee are explained by
the court, see id. at 386-88, and, therefore, will not be recounted here.
267 See H.Res. 1420, 94th Cong. 2d Sess. (1976); see also H.Rept. 94-1422, 94th Cong. 2d Sess. (1976).
268 Id.
269 Id.
270 See 122 CONG. REC. 27,865-866 (Aug. 26, 1976).
271 See United States v. American Telephone & Telegraph, 419 F.Supp. 454, 458 (stating that “[t]he effect of any
injunction entered by this Court enjoining the release of materials by AT&T to the Subcommittee would have the same
effect as if this Court were to quash the Subcommittees subpoena. In this sense the action is one against the power of
the Subcommittee and should be treated as such, assuming that Representative Moss has authority to speak for the

enjoin the FTC from transferring its information to the Subcommittee on Oversight and
Investigations of the Committee on Interstate and Foreign Commerce at the request of
Subcommittee Chairman Moss. When Ashland Oil obtained a temporary restraining order, the
subcommittee promptly authorized a subpoena for the documents and Chairman Moss filed a
resolution for authorization from the House to allow him to intervene with special counsel in the
suit that Ashland Oil had filed seeking to enjoin the FTC from transferring the documents to the 272
subcommittee. The district court granted Chairman Moss’s motion to intervene and ultimately 273
refused to grant the injunction. The Court of Appeals affirmed on the grounds that “no
substantial showing was made that the materials in the possession of the FTC will necessarily be 274
‘made public’ if turned over to Congress.”
While AT&T and Ashland Oil represent affirmative authorizations for intervention by a house of 275
Congress, In Re Beef Industry Antitrust Litigation, provides an example of what may occur
should a house of Congress not provide express authorization to be represented in court. In In Re 276
Beef, the chairmen of two subcommittees of the House of Representatives sought to intervene
in a pending antitrust dispute for the purpose of obtaining access to documents subpoenaed by
subcommittees from a party to the litigation. The subpoenaed documents had been obtained
through litigation discovery and were thus subject to a standing court protective order. The
district court refused to modify its protective order allowing the party to comply with the 277
subpoena. The subcommittee chairmen appealed to the United States Court of Appeals for the
Fifth Circuit.
On appeal, the Fifth Circuit entertained a motion to dismiss by one of the plaintiffs on the
grounds that the chairmen had not obtained authorization from the full House of Representatives
before filing their initial motion before the district court. The plaintiffs relied on what was then
Rule XI, cl. 2(m)(2)(B) of the Rules of the House of Representatives, which provided that
“[c]ompliance with any subpoena [sic] issued by a committee or subcommittee ... may be 278
enforced only as authorized or directed by the House.” The committee chairmen responded by
arguing that the rule was not applicable as they were not seeking to enforce their subpoenas, but 279
rather were seeking a modification of the district court’s protective order. Therefore, according
to the chairmen, they did not require authorization from the full House of Representatives to 280
appear in court.

272 See generally, Ashland Oil, Inc. v. FTC, 548 F.2d 977 (D.C. Cir. 1976); see also H.Res. 899, 94th Cong., 1st Sess.
(1975); 121 CONG. REC. 41,707 (1976).
273 Ashland Oil, Inc. v. FTC, 409 F.Supp. 297, 301 (D.D.C. 1976).
274 Ashland Oil, 548 F.2d at 979.
275 589 F.2d 786 (5th Cir. 1979).
276 The Subcommittee on Oversight and Investigations of the Committee on Interstate and Foreign Commerce, and the
Subcommittee on SBA and SBIC Authority and General Small Business Problems of the Committee on Small
Business. See id. at 788.
277 See In re Beef Industry Antitrust Litigation, 457 F.Supp. 210, 212 (C.D. Tex. 1978) (stating thatthe persons whom
the Subcommittees have subpoenaed would not have possession of the subpoenaed documents but for the discovery
rules of the Federal Courts. Congress by subpoenaing these documents is interfering with the processes of a Federal
Court in an individual case.”).
278 In Re Beef, 589 F.2d at 789.
279 Id.
280 Id.

The Fifth Circuit rejected the chairmen’s arguments, noting specifically that the House Rules
“require[] House authorization not only for direct enforcement of a subpoena but also in any
instance when a House committee seeks to institute or to intervene in litigation and, of course, to
appeal from a court decision, particularly when the purpose is, as here, to obtain the effectuation 281
of a subpoena.” The court also extensively relied on the Ashland Oil precedent noting that
similar to this case, the chairman in Ashland Oil was not seeking to enforce a subpoena, rather 282
merely attempting to prevent an injunction from being issued. The failure of the chairmen to
obtain an authorization resolution from the full House in this case necessitated the dismissal of 283
their appeal without any decision on the merits.
As neither AT&T, Ashland Oil, nor In Re Beef raised any questions regarding the jurisdiction of
the federal courts, it appears possible to argue that all that is legally required for 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. Absent
such authorization, it appears that the courts will not entertain civil motions of any kind on behalf
of Congress or its committees. 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 284
enforcement of subpoenas or other committee orders.
Although the courts have upheld the authority of Congress to investigate and to cite a witness for
contempt, they have also established limits, rooted both in the language of the criminal contempt
statute and in the Constitution, on the investigatory and contempt powers. Recognizing that 2
U.S.C. § 192 is a criminal statute, the courts have accorded defendants the same safeguards as 285
defendants in other criminal proceedings.

281 Id. at 790-91.
282 Id. at 790.
283 Id. at 791.
284 Relatedly, the Department of Justice has, on numerous occasions, including most recently in 1996, suggested that
committees of Congress resolve inter-branch disputes involving the enforcement of subpoenas by civil proceeding in th
federal court. See, e.g., H.Rept. 104-598, 104 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. Off. Legal Counsel, 68, 87-89 (1986)
(suggesting thatthe 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. Off. Legal
Counsel, 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.).
285 Russell v. United States, 369 U.S. 749 (1962); see also Sinclair v. United States, 279 U.S. 263 (1929). While most of
the case law in this section of the report involves decisions under the statutory criminal contempt procedure, many of

The criminal contempt statute is applicable to contempts committed by a person “summoned as a 286
witness by the authority of either House of Congress ... .” The statute applies regardless of 287
whether a subpoena has been issued by a committee or by the full House or Senate. Although
the statute specifically makes the contempt sanction applicable to a witness who has been
“summoned,” the law applies whether the individual is subpoenaed or appears voluntarily and 288
then refuses to testify.
A contempt conviction will not be upheld if the committee’s investigation has not been clearly 289
authorized by the full House or Senate. The investigation, and the questions posed, must be 290
within the scope of the committee’s jurisdiction. A committee cannot issue a subpoena for a
subject outside the scope of its jurisdiction. Authorization from the parent body may take the form 291292293
of a statute, a resolution, or a standing rule of the House or Senate. In the case of a
subcommittee investigation, the subject matter must fall within the scope of authority granted to 294
the subcommittee by the full committee. Investigations may be conducted, and subpoenas 295
issued, pursuant to a committee’s legislative or oversight jurisdiction.
In construing the scope of a committee’s authorizing rule or resolution, the Supreme Court has
adopted a mode of analysis not unlike that ordinarily followed in determining the meaning of a
statute: it looks first to the words of the resolution itself, and then, if necessary, to the usual
sources of legislative history, including floor statements, reports, and past committee practice. As

the holdings would be applicable to exercises of the new civil contempt statute and the inherent contempt power. See thst
S.Rept. No. 95-170, 95 Cong., 1 Sess., 41, 94.
286 2 U.S.C. § 192 (2000) (emphasis added).
287 McGrain v. Daughtery, 2 73 U.S. 135 (1927); see also Sinclair v. United States, 279 U.S. 263, 296 (1929).
288 Sinclair, 279 U.S. at 296.
289 United States v. Rumely, 343 U.S. 41 (1953); Tobin v. United States, 306 F.2d 270 (D.C. Cir.), cert. denied, 371
U.S. 902 (1962); United States v. Patterson, 206 F.2d 433 (D.C. Cir. 1953).
290 See United States v. Rumely, 343 U.S. 41 (1953); see also United States v. Patterson, 206 F.2d 433 (D.C. Cir. 1953).
291 26 U.S.C. § 8021, 8022 (2000) (Joint Committee on Taxation).
292 Resolutions are generally used to establish select or special committees and to delineate their authority. and
jurisdiction. See 4 Deschler’s Precedents, supra note 87, ch. 17, 56; see also e.g., S.Res. 23, 100th Cong. (Iran-Contra); th
S.Res. 495, 96 Cong. (Billy Carter/Libya).
293 This mode is the most common today. Both the House and the Senate authorize standing committees to make
investigations within their jurisdiction, and permit such committees and their subcommittees to issue subpoenas. See th
House Rules Manual, H.R. Doc. No. 108-241, 108 Cong. 2d Sess., Rule XI , cl. l (b) and cl. 2 (m) (2005); Senate th
Manual, S. Doc. No. 98-1, 98 Cong., 2d Sess., Rule XXVI, cl. 1 (1984).
294 Gojack v. United States, 384 U.S. 702, 706 (1966). The case involved a rule of the former House Committee on Un-
American Activities, which stated thatno major investigations shall be initiated without the approval of a majority of
the committee.The court reversed the contempt conviction in Gojack because the subcommittee’s investigation,
which resulted in the contempt citation, had not been approved by the committee as its rules required.
Despite the provision of Senate Rule XXVI, cl.1, authorizing subcommittee subpoenas, the rules of at least one
committee expressly prohibit subcommittee subpoenas (Committee on Small Business, Rule 3(c)), while another
committee requires approval by the full committee of any subcommittee subpoenas (Committee on Labor and Human
Resources, Rule 17 ).
295 A leading study of Senate committee jurisdiction noted thatoversight jurisdiction necessarily flows from specific
legislative enactments, but it also emanates from broader and more vaguely defined jurisdiction which committees may
exercise in particular subject matter areas. First Staff Report to the Temporary Select Committee to Study the Senate th
Committee System, 94 Cong., 2d Sess., 104 (1976); see also United States v. Kamin, 136 F. Supp. 791, 801 (D. Mass.
1956) (providing a judicial application of oversight jurisdiction in the investigatory context).

explained by the Court in Barenblatt v. United States,296 “[j]ust as legislation is often given
meaning by the gloss of legislative reports, administrative interpretation, and long usage, so the
proper meaning of an authorization to a congressional committee is not to be derived alone from
its abstract terms unrelated to the definite content furnished them by the course of congressional 297
actions.” It appears that the clear articulation of committee jurisdiction in both the House and
Senate rules combined with the express authorization of special committees by resolution has
effectively eliminated the use of jurisdiction as a defense to contempt proceedings.
A committee’s investigation must have a legislative purpose or be conducted pursuant to some
other constitutional power of the Congress, such as the authority of each House to discipline its
own Members, judge the returns of the their elections, and to conduct impeachment 298299
proceedings. Although the early case of Kilbourn v. Thompson held that the investigation in
that case was an improper probe into the private affairs of individuals, the courts today generally
will presume that there is a legislative purpose for an investigation, and the House or Senate rule
or resolution authorizing the investigation does not have to specifically state the committee’s 300301
legislative purpose. In In re Chapman, the Court upheld the validity of a resolution
authorizing an inquiry into charges of corruption against certain Senators despite the fact that it
was silent as to what might be done when the investigation was completed. The Court stated:
The questions were undoubtedly pertinent to the subject matter of the inquiry. The
resolutions directed the committee to inquire “whether any Senator has been, or is,
speculating in what are known as sugar stocks during the consideration of the tariff bill now
before the Senate.” What the Senate might or might not do upon the facts when ascertained,
we cannot say nor are we called upon to inquire whether such ventures might be defensible,
as contended in argument, but it is plain that negative answers would have cleared that body
of what the Senate regarded as offensive imputations, while affirmative answers might have
led to further action on the part of the Senate within its constitutional powers.
Nor will it do to hold that the Senate had no jurisdiction to pursue the particular inquiry
because the preamble and resolutions did not specify that the proceedings were taken for the
purpose of censure or expulsion, if certain facts were disclosed by the investigation. The
matter was within the range of the constitutional powers of the Senate. The resolutions
adequately indicated that the transactions referred to were deemed by the Senate
reprehensible and deserving of condemnation and punishment. The right to expel extends to
all cases where the offense is such as in the judgment of the Senate is inconsistent with the
trust and duty of a member.

296 360 U.S. 109, 117 (1959).
297 See Watkins v. United States, 354 U.S. 178, 209-215 (1957).
298 See, e.g., McGrain v. Daugherty, 273 U.S. 135 (1927); see also In Re Chapman, 166 U.S. 661 (1897).
299 103 U.S. 168 (1881).
300 McGrain v. Daugherty, 273 U.S. 135 (1927); see also Townsend v. United States, 95 F.2d 352 (D.C. Cir. 1938);
LEADING CASES ON CONGRESSIONAL INVESTIGATORY POWER, 7 (Comm. Print 1976) [hereinafter cited as Leading
Cases]. For a different assessment of recent case law concerning the requirement of a legislative purpose, See
Moreland, supra note 57, at 232.
301 166 U.S. 661, 669 (1897).

We cannot assume on this record that the action of the Senate was without a legitimate
object, and so encroach upon the province of that body. Indeed, we think it affirmatively
appears that the Senate was acting within its right, and it was certainly not necessary that the
resolutions should declare in advance what the Senate meditated doing when the 302
investigation was concluded.
In McGrain v. Daugherty,303 the original resolution that authorized the Senate investigation into
the Teapot Dome Affair made no mention of a legislative purpose. A subsequent resolution for the
attachment of a contumacious witness declared that his testimony was sought for the purpose of
obtaining “information necessary as a basis for such legislative and other action as the Senate
may deem necessary and proper.” The Court found that the investigation was ordered for a
legitimate object. It wrote:
The only legitimate object the Senate could have in ordering the investigation was to aid it in
legislating, and we think the subject matter was such that the presumption should be
indulged that this was the real object. An express avowal of the object would have been
better; but in view of the particular subject-matter was not indispensable. ***
The second resolutionthe one directing the witness be attached–declares that this testimony
is sought with the purpose of obtaining information necessary as a basis for such legislative
and other action as the Senate may deem necessary and proper.” This avowal of
contemplated legislation is in accord with what we think is the right interpretation of the
earlier resolution directing the investigation. The suggested possibility of other action if
deemed necessary or proper is of course open to criticism in that there is no other action in
the matter which would be within the power of the Senate. But we do not assent to the view
that this indefinite and untenable suggestion invalidates the entire proceeding. The right view
in our opinion is that it takes nothing from the lawful object avowed in the same resolution
and is rightly inferable from the earlier one. It is not as if an inadmissible or unlawful object 304
were affirmatively and definitely avowed.
Moreover, when the purpose asserted is supported by reference to specific problems which in the
past have been, or in the future may be, the subject of appropriate legislation, it has been held that
a court cannot say that a committee of the Congress exceeds its power when it seeks information 305
in such areas. In the past, the types of legislative activity which have justified the exercise of 306
the power to investigate have included the primary functions of legislating and appropriating; 307
the function of deciding whether or not legislation is appropriate; oversight of the 308
administration of the laws by the executive branch; and the essential congressional function of 309
informing itself in matters of national concern. In addition, Congress’s power to investigate 310311
such diverse matters as foreign and domestic subversive activities, labor union corruption,

302 In re Chapman, 166 U.S. at 699.
303 273 U.S. 135 (1927).
304 Id. at 179-180.
305 Shelton v. United States, 404 F.2d 1292, 1297 (D.C. Cir. 1968), cert denied, 393 U.S. 1024 (1969).
306 Barenblatt v. United States, 360 U.S. 109 (1959).
307 Quinn v. United States, 349 U.S. 155, 161 (1955).
308 McGrain, 273 U.S. at 295.
309 United States v. Rumely, 345 U.S. 4, 43-45 (1953); see also Watkins, 354 U.S. at 200 n. 3.
310 See, e.g., Barrenblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States, 354 U.S. 178 (1957);
McPhaul v. United States, 364 U.S. 372 (1960).
311 Hutcheson v. United States, 369 U.S. 599 (1962).

and organizations that violate the civil rights of others312—have all been upheld by the Supreme 313
Despite the Court’s broad interpretation of legislative purpose, Congress’s authority is not
unlimited. Courts have held that a committee lacks legislative purpose if it appears to be
conducting a legislative trial rather than an investigation to assist in performing its legislative 314
function. Furthermore, although “there is no congressional power to expose for the sake of 315
exposure,” “so long as Congress acts in pursuance of its constitutional power, the Judiciary
lacks authority to intervene on the basis of the motives which spurred the exercise of that 316
Two different issues of pertinency arise in regard to a contempt prosecution.317 First, a witness’s
refusal to answer questions or provide subpoenaed documents will be punished as a contempt
only if the questions posed (or documents requested) by the committee are, in the language of the 318
statute, “pertinent to the question under inquiry.” In determining general questions of the
pertinency of inquiries, the courts have required only that the specific inquiries be reasonably 319
related to the subject matter under investigation. Given the breadth of congressional
investigations, the courts have long recognized that pertinency in the legislative context is broader
than in the judicial context, which relies primarily on the law of evidence’s standard of relevance.
For example, the D.C. Circuit has stated that
A legislative inquiry may be as broad, as searching, and as exhaustive as is necessary to
make effective the constitutional powers of Congress. ... A judicial inquiry relates to a case,
and the evidence to be admissible must be measured by the narrow limits of the pleadings. A
legislative inquiry anticipates all possible cases which may arise thereunder and the evidence 320
admissible must be responsive to the scope of the inquiry which generally is very broad.
The second pertinency issue concerns the Fifth Amendment’s Due Process Clause. According to
the Supreme Court in Deutch v. United States, the pertinency of a “committee’s inquiry must be 321
brought home to the witness at the time the questions are put to him.” The Court in Watkins
stated that

312 Shelton v. United States, 404 F.2d 1292 (D.C. Cir. 1968), cert. denied, 393 U.S. 1024 (1969).
313 For an indication of the likely breadth of Congress’s power to investigate, see supra note 5-19 and accompanying
314 See United States v. Icardi, 140 F. Supp. 383 (D.D.C. 1956); United States v. Cross, 170 F. Supp. 303 (D.D.C.
315 Watkins v. United States, 354 U.S. 178, 200 (1957). However, Chief Justice Warren, writing for the majority, made
it clear that he was not referring to thepower of the Congress to inquire into and publicize corruption, mal-
administration or inefficiency in agencies of the Government. Id.
316 Barenblatt, 360 U.S. at 132.
317 Deutch v. United States, 367 U.S. 456, 467-68 (1961).
318 2 U.S.C. § 192 (2000); see also Barenblatt, 360 U.S. at 123; Watkins, 354 U.S. at 208
319 Sinclair v. United States, 279 U.S. 263, 279 (1929); Ashland Oil, Inc. v. FTC, 409 F. Supp. 287, 305 (D.D.C. 1976).
320 Townsend v. United States, 95 F.2d 352, 361 (D.C. Cir. 1938), cert. denied, 303 U.S. 664 (1938) (internal citation
omitted) (emphasis in original).
321 Deutch, 367 U.S. at 467-68.

[u]nless the subject matter has been made to appear with undisputable clarity, it is the duty of
the investigative body, upon objection of the witness on grounds of pertinency, to state for
the record the subject under inquiry at that time and the manner in which the propounded
questions are pertinent thereto. To be meaningful, the explanation must describe what the
topic under inquiry is and the connective reasoning whereby the precise questions asked 322
relate to it.
In addition, according to commentators, a witness is entitled “to understand the specific aspect of
the committee’s jurisdiction under its authorizing resolution [or House or Senate rule] to which 323
the question relates.” Finally, it appears that the committee must specifically rule on a
pertinency objection and, if the objection is overruled, inform the witness of that fact before again
directing him to answer the question.
The Court has also observed that a witness might resort to several sources in determining the
subject matter of an investigation. These include, but are likely not limited to: (a) the House or
Senate resolution authorizing the committee inquiry; (b) the committee’s resolution authorizing
the subcommittee investigation; (c) the introductory statement of the chairman or other committee
Members; (d) the nature of the proceedings; and (e) the chairman’s response to a witness’s 324
objections on the grounds of lack of pertinency.
A conviction for statutory criminal contempt cannot be sustained unless the failure to appear
before the committee, to produce documents, or to respond to questions is a willful, intentional 325326
act. However, an evil motive does not have to be established. Because of the willfulness
requirement, and to satisfy constitutional due process standards, when a witness objects to a
question or otherwise refuses to answer, the chairman or presiding member should rule on any 327
objection and, if the objection is overruled, the witness should be clearly directed to answer. It
has been observed that “there is no talismanic formula which [a] committee must use in directing
[a] witness to answer,” but he should be clearly informed “and not left to the risk of guessing
upon pain of criminal penalties, whether the grounds for his objection to answering [are] accepted 328
or rejected,” and “if they are rejected, he should be given another chance to answer.” The
procedure to be followed in responding to a witness’s objections to questions has been described
as follows:

322 Watkins, 354 U.S. at 214-15.
323 See James Hamilton, THE POWER TO PROBE: A STUDY OF CONGRESSIONAL INVESTIGATIONS, 241 (1977) [hereinafter
324 Watkins, 354 U.S. at 209-14.
325 Quinn v. United States, 349 U.S. 155, 165 (1955); see also United States v. Bryan, 339 U.S. 323 (1950); United
States v. Josephson, 165 F.2d 82 (2d Cir. 1948), cert. denied, 333 U.S. 838 (1948); Deutch v. United States, 235 F.2d
853 (D.C. Cir. 1956), revd on other grounds, 367 U.S. 456 (1961).
326 See generally, Allen B. Moreland, Congressional Investigations and Private Persons, 40 SO. CAL. L. REV. 189, 239-
42 (1967).
327 See, e.g., Deutch v. United States, 367 U.S. 456 (1961); Watkins v. United States, 354 U.S. 178 (1957); Quinn v.
United States, 349 U.S. 155 (1955); Emspak v. United States, 349 U.S. 190 (1955); Bart v. United States, 349 U.S. 219 th
(1955); Braden v. United States, 272 F.2d 653, 661 (5 Cir. 1959), aff’d, 365 U.S. 961 (1961).
328 Quinn v. United States, 203 F.2d 30, 33 (D.C. Cir. 1952), aff’d, 349 U.S. 155 (1955).

If a witness refuses to answer a question, the committee must ascertain the grounds relied
upon by the witness. It must clearly rule on the witnesss objection, and if it overrules the
witnesss objection and requires the witness to answer, it must instruct the witness that his
continued refusal to answer will make him liable to prosecution for contempt of Congress.
By failing adequately to apprise the witness that an answer is required notwithstanding his
objection the element of deliberateness necessary for conviction for contempt under 2 U.S.C. 329
§ 192 is lacking, and such a conviction cannot stand.
A contempt conviction can be reversed on other non-constitutional grounds. The cases make clear
that committees must closely follow their own rules and the rules of their parent body in 330331
authorizing subpoenas and conducting investigations and hearings. It appears that a witness 332
can be convicted of criminal contempt, but not of perjury, where a quorum of the committee 333
was not present.
In practice, the exercise of committee discretion whether to accept a claim of attorney-client
privilege has turned on a “weighing [of] the legislative need for disclosure against any possible 334
resulting injury.” More particularly, the process of committee resolution of claims of attorney-
client privilege has traditionally been informed by weighing considerations of legislative need,
public policy, and the statutory duty of congressional committees to engage in continuous
oversight of the application, administration, and execution of laws that fall within their 335
jurisdiction, against any possible injury to the witness. In the particular circumstances of any
situation, a committee may consider and evaluate the strength of a claimant’s assertion in light of
the pertinency of the documents or information sought to the subject of the investigation, the
practical unavailability of the documents or information from any other source, the possible
unavailability of the privilege to the claimant if it were to be raised in a judicial forum, and the
committee’s assessment of the cooperation of the witness in the matter, among other
considerations. A valid claim of attorney-client privilege, free of any taint of waiver, exception or
other mitigating circumstance, would merit substantial weight. Any serious doubt, however, as to

329 See Leading Cases, supra note 297 at 69.
330 Shelton v. United States, 327 F.2d 601 (D.C. Cir. 1963); see also Liveright v. United States, 347 F.2d 473 (D.C. Cir.
331 Yellin v. United States, 374 U.S. 109 (1963); Gojack v. United States, 384 U.S. 702 (1966).
332 United States v. Bryan, 339 U.S. 323 (1950).
333 The Court held in Christoffel v. United States, 338 U.S. 84 (1949), that a quorum of the committee must be present
at the time that the perjurious testimony is given. It is not sufficient that a quorum is present at the start of the hearing.
The difference in regard to the quorum requirement between the contempt statute (2 U.S.C. § 192) and the perjury
statute (18 U.S.C. § 1621) is the provision in the latter that the statement must have been made before a “competent
tribunal, and a quorum has been considered necessary for the tribunal to be competent. The Court in Christoffel
recognized the constitutional power of each House t o determine the rules of its proceedings and pursuant to t h i s
power, the Senate has authorized its committees to adopt rules under which one member of a committee can constitute
a quorum for the receipt of sworn testimony. See Senate Rule XXVI , cl. 7(a)(2). The House allows committees to
adopt rules providing for receipt of testimony by as few as two members. See House Rule X I , c l. 2(h).
334 Hearings, “International Uranium Cartel, Subcomm. on Oversight and Investigations, House Comm. on Interstate
and Foreign Commerce, 95th Cong., 1st Sess., Vol. 1, 123 (1977).
335 See 2 U.S.C. 190d (1994).

the validity of the asserted claim would diminish its compelling character.336 Moreover, the
conclusion that recognition of non-constitutionally based privileges, such as attorney-client
privilege, is a matter of congressional discretion is consistent with both traditional British 337
parliamentary and the Congress’s historical practice.
Although there is limited case law with respect to attorney-client privilege claims before 338
congressional committees, appellate court rulings on the privilege in cases involving other
investigative contexts (e.g., grand jury) have raised questions as to whether executive branch
officials may claim attorney-client, work product, or deliberative process privileges in the face of 339
investigative demands. These rulings may lead to additional arguments in support of the long-
standing congressional practice.
The legal basis for Congress’s practice in this area is based upon its inherent constitutional
prerogative to investigate which has been long recognized by the Supreme Court as extremely
broad and encompassing, and which is at its peak when the subject is fraud, abuse, or 340
maladministration within a government department. The attorney-client privilege is, on the
other hand, not a constitutionally based privilege, rather it is a judge-made exception to the

336 See, e.g., Contempt of Congress Against Franklin L. Haney, H.Rept. 105-792, 105th Cong., 2d Sess., 11-15 (1998);
Proceedings Against John M. Quinn, David Watkins, and Matthew Moore (Pursuant to Title 2, United States Code, th
Sections 192 and 194), H.Rept. 104-598, 104 Cong., 2d Sess., 40-54 (1996); Refusal of William H. Kennedy, III, To
Produce Notes Subpoenaed by the Special Committee to Investigate Whitewater Development Corporation and Related thst
Matters, S.Rept. 104-191, 104 Cong. 1 Sess., 9-19 (1995); Proceedings Against Ralph Bernstein and Joseph th
Bernstein, H.Rept. 99-462, 99 Cong. 2d Sess., 13, 14 (1986); Hearings, International Uranium Control, before the thst
Subcommittee on Oversight and Investigations, House Committee on Interstate and Foreign Commerce, 95 Cong., 1
Sess., 60, 123 (1977).
337 See, CRS Report 95-464, Investigative Oversight: An Introduction to the Law, Practice and Procedure of
Congressional Inquiry, pp. 43-55 (April 7, 1995); see also, Glenn A. Beard, Congress v. the Attorney-Client Privilege:
AFull and Frank Discussion, 35 Amer. CRIM. L. REV. 119 122-127 (1997) ([C]ongressional witnesses are not
legally entitled to the protection of the attorney-client privilege, and investigating committees therefore have
discretionary authority to respect or overrule such claims as they see fit.”); Thomas Millett, The Applicability of
Evidentiary Privileges for Confidential Communications Before Congress, 21 JOHN MARSHALL L. REV. 309 (1988).
338 See In the Matter of Provident Life and Accident Co., E.D. Tenn., S.D., CIV-1-90-219, June 13, 1990 (noting that
the court’s earlier ruling on an attorney-client privilege claim was “not of constitutional dimensions, and is certainly not
binding on the Congress of the United States.”).
339 In re Grand Jury Subpoena Duces Tecum, 112 F. 3d 910 (8th Cir. 1997), cert. denied sub. nom., Office of the
President v. Office of the Independent Counsel, 521 U.S. 1105 (1997) (rejecting claims by the First Lady of attorney-
client and work-product privilege with respect notes taken by White House Counsel Office attorneys); In re Bruce R.
Lindsey (Grand Jury Testimony), 158 F. 3d 1263 (D.C. Cir. 1998), cert. denied, 525 U.S. 996 (1998) (holding that a
White House attorney may not invoke attorney-client privilege in response to grand jury subpoena seeking information
on possible commission of federal crimes); In re Sealed Case (Espy), 121 F.3d 729 (D.C. Cir. 1997) (deciding that the
deliberative process privilege is a common law agency privilege which can be overcome by a showing of need by an th
investigating body); In re: A Witness Before the Special Grand Jury, 288 F.3d 289 (7 Cir. 2002) (holding that the
attorney-client privilege is not applicable to communications between state government counsel and state office
holder); But see In re Grand Jury Investigation, 399 F.3d 527 (2d Cir. 2005) (upholding a claim of attorney-client
privilege with respect to communications between a former chief legal counsel to the governor of Connecticut who was
under grand jury investigation. It is worth noting that the Second Circuit recognized its apparent conflict with the afore-
cited cases, however, the ruling is arguably distinguishable on its facts. See Kerri R. Blumenauer, Privileged or Not?
How the Current Application of the Government Attorney-Client Privilege Leaves the Government Feeling
Unprivileged, 75 FORDHAM L. REV. 75 (2006)).
340 McGrain v. Daugherty, 272 U.S. 135, 177 (1926); Watkins v. United States, 354 U.S. 178, 187 (1957); Eastland v.
United States Servicemens Fund, 421 U.S. 491, 504 n.15 (1975).

normal principle of full disclosure in the adversary process which is to be narrowly construed and 341
has been confined to the judicial forum.
While no court has recognized the inapplicability of the attorney-client privilege in congressional 342
proceedings in a decision directly addressing the issue, an opinion issued by the Legal Ethics
Committee of the District of Columbia Bar in February 1999, clearly acknowledges the 343
longstanding congressional practice. The occasion for the ruling arose as a result of an
investigation of a Subcommittee of the House Commerce Committee into the circumstances
surrounding the planned relocation of the Federal Communications Commission to the Portals 344
office complex. During the course of the inquiry, the Subcommittee sought certain documents
from the Portals developer, Mr. Franklin L. Haney. Mr. Haney’s refusal to comply resulted in
subpoenas for those documents to him and the law firm representing him during the relocation
efforts. Both Mr. Haney and the law firm asserted attorney-client privilege in their continued
refusal to comply. In addition, the law firm sought an opinion from the D.C. Bar’s Ethics
Committee as to its obligations in the face of the subpoena and a possible contempt citation. The
Bar Committee notified the firm that the question was novel and that no advice could be given 345
until the matter was considered in a plenary session of the Committee. The firm continued its
refusal to comply until the Subcommittee cited it for contempt, at which time the firm proposed
to turn over the documents if the contempt citation was withdrawn. The Subcommittee agreed to 346
the proposal.
Subsequently, on February 16, 1999, the D.C. Bar’s Ethics Committee issued an opinion
vindicating the action taken by the firm. The Ethics Committee, interpreting D.C. Bar Rule of 347
Professional conduct 1.6(d)(2)(A), held that an attorney faced with a congressional subpoena
that would reveal client confidences or secrets
has a professional responsibility to seek to quash or limit the subpoena on all available,
legitimate grounds to protect confidential documents and client secrets. If, thereafter, the
Congressional subcommittee overrules these objections, orders production of the documents
and threatens to hold the lawyer in contempt absent compliance with the subpoena, then, in
the absence of a judicial order forbidding the production, the lawyer is permitted, but not
required, by the D.C. Rules of Professional Conduct to produce the subpoenaed documents.

341 Westinghouse Electric Corporation v. Republic of the Philippines, 951 F.2d 1414, 1423 (3d Cir. 1991).
342 The Supreme Court has recognized thatonly infrequently have witnesses . . . [in congressional hearings] been
afforded the procedural rights normally associated with an adjudicative proceeding.Hannah v. Larche, 363 U.S. 420,
425 (1960); see also, United States v. Fort, 443 F. 2d 670 (D.C. Cir. 1970), cert. denied, 403 U.S. 932 (1971) (rejecting
the contention that the constitutional right to cross-examine witnesses applied to a congressional investigation); In the
Matter of Provident Life and Accident Co., E.D. Tenn., S.D., CIV-1-90-219, June 13, 1990 (noting that the court’s
earlier ruling on an attorney-client privilege claim was “not of constitutional dimensions, and is certainly not binding
on the Congress of the United States.”).
343 Opinion No. 288, Compliance With Subpoena from Congressional Committee to Produce Lawyers Files
Containing Client Confidences or Secrets, Legal Ethics Committee, District of Columbia Bar, February 16, 1999. (D.C
Ethics Committee Opinion).
344 See H. Rep. No. 105-792, 105th Cong., 1st Sess., 1-6, 7-8, 15-16 (1997).
345 See Meeting on Portal Investigation (Authorization of Subpoenas; Receipt of Subpoenaed Documents and
Consideration of Objections); and Contempt of Congress Proceedings Against Franklin L. Haney, H. Comm. On th
Commerce, 105 Cong., 2d Sess., 48-50 (1998).
346 Id. at 101-105.
347 Under Rule 1.6(d)(2)(A) a lawyer may reveal client confidences or secrets only when expressly permitted by the
D.C. Bar rules or whenrequired by law or court order.

A directive of a Congressional subcommittee accompanied by a threat of fines and
imprisonment pursuant to federal criminal law satisfies the standard ofrequired by law as
that phrase is used in D.C. Rule of Professional conduct 1.6(d)(2)(A).
The D.C. Bar opinion urges attorneys to press every appropriate objection to the subpoena until
no further avenues of appeal are available, and even suggests that clients might be advised to 348
retain other counsel to institute a third-party action to enjoin compliance, but allows the
attorney to relent at the earliest point when he is put in legal jeopardy. The opinion represents the
first, and thus far the only, bar in the nation to directly and definitively address the merits of the
In the end, of course, it is the congressional committee alone that determines whether to accept a
claim of attorney-client privilege.
Common law rules of evidence as well as statutory enactments recognize a testimonial privilege
for witnesses in a judicial proceeding so that they need not reveal confidential communications 349
between doctor and patient, husband and wife, or clergyman and parishioner. Although there is
no court case directly on point, it appears that, like the privilege between attorney and client,
congressional committees are not legally required to allow a witness to decline to testify on the 350
basis of other similar testimonial privileges. It should be noted, however, that the courts have
denied claims by the White House Counsel’s office of attorney work product immunity in the face
of grand jury subpoenas that have been grounded on the assertion that the materials sought were 351
prepared in anticipation of possible congressional hearings. In addition, court decisions indicate
that various rules of procedure generally applicable to judicial proceedings, such as the right to
cross-examine and call other witnesses, need not be accorded to a witness in a congressional 352
hearing. The basis for these determinations is rooted in Congress’s Article I section 5 353
rulemaking powers, under which each House is the exclusive determiner of the rules of its own
proceedings. This rulemaking authority, as well as general separation of powers considerations,

348 A direct suit to enjoin a committee from enforcing a subpoena has been foreclosed by the Supreme Courts decision
in Eastland v. United States Servicemens Fund, 421 U.S. 491, 501 (1975), but that ruling does not appear to foreclose
an action against a “third party,” such as the client’s attorney, to test the validity of the subpoena or the power of a
committee to refuse to recognize the privilege. See, e.g., United States v. AT&T, 567 F. 2d 121 (D.C.Cir. 1977)
(entertaining an action by the Justice Department to enjoin AT&T from complying with a subpoena to provide
telephone records that might compromise national security matters).
349 See generally, 8 Wigmore, EVIDENCE § 2285 (McNaughton ed. 1961); see also FED. R. EVID. 501. For an analysis of
the attorney client privilege, See infra notes 331-344 and accompanying text.
350 Compare Attorney-Client Privilege: Memoranda Opinions of the American Law Division, Library of Congress,
Comm. Print of the Subcommittee on Oversight and Investigations of the House Committee on Energy and Commerce, thst
98 Cong., 1 Sess., 926 (1983) [hereinafter Attorney-Client Privilege Comm. Print], with Id. at 41, 44 et. seq; see also
generally, Moreland, supra note 5 at 265-67.
351 See e.g., In re Grand Jury Subpoena Duces Tecum, 112 F.3d 907, 924-25 (8th Cir. 1997); In re Grand Jury
Proceedings, 5 F.Supp.2d 21, 39 (D.D.C. 1998).
352 United States v. Fort, 443 F.2d 670 (D.C. Cir. 1970), cert. denied, 403 U.S. 932 (1971), (citing Hannah v. Larche,
363 U.S. 420 (1960)).
353 U.S. CONST. Art. 1, § 5, cl. 2

suggest that Congress and its committees are not obliged to abide by rules established by the 354
courts to govern their own proceedings.
Though congressional committees may not be legally obligated to recognize the privilege for
confidential communications, they may do so at their discretion. Historical precedent suggests 355
that committees often have recognized such privileges. The decision as to whether or not to
allow such claims of privilege turns on a “weighing [of] the legislative need for disclosure against 356
any possible resulting injury.”
The Supreme Court has observed that “Congress, in common with all branches of the
Government, must exercise its powers subject to the limitations placed by the Constitution on
governmental action, more particularly in the context of this case, the relevant limitations of the 357
Bill of Rights.” There are constitutional limits not only on Congress’s legislative powers, but
also on its investigative powers.
Although the First Amendment, by its terms, is expressly applicable only to legislation that
abridges freedom of speech, press, or assembly, the Court has held that the amendment also 358
restricts Congress in conducting investigations. In the leading case involving the application of 359
First Amendment rights in a congressional investigation, Barenblatt v. United States, the Court
held that “where First Amendment rights are asserted to bar government interrogation resolution
of the issue always involves a balancing by the courts of the competing private and public
interests at stake in the particular circumstances shown.” Thus, unlike the Fifth Amendment
privilege against self-incrimination, the First Amendment does not give a witness an absolute 360
right to refuse to respond to congressional demands for information.
The Court has held that in balancing the personal interest in privacy against the congressional
need for information, “the critical element is the existence of, and the weight to be ascribed to, the 361
interest of the Congress in demanding disclosure from an unwilling witness.” To protect the

354 See generally, Telford Taylor, GRAND INQUEST: THE STORY OF CONGRESSIONAL INVESTIGATIONS 227-28 (1974).
355 See Hamilton, supra note 320, at 244; see also S.Rept. No. 2, 84th Cong., 1st Sess., (1955). Hamilton notes that John
Dean, the former counsel to the President, testified before the Senate Watergate Committee after Nixon had “waived
any attorney-client privilege he might have had because of their relationship.Id.
356 Attorney-Client Privilege Comm. Print, supra note 346, at 27 (citing Hearings on an International Uranium Cartel
before the Subcommittee on Oversight and Investigations, House Committee on Interstate and Foreign Commerce, 95th st
Cong., 1 Sess., 60, 123 (1977)).
357 Barenblatt v. United States, 360 U.S. 109, 112 (1959). Not all of the provisions of the Bill of Rights are applicable
to congressional hearings. For example, the sixth amendment right of a criminal defendant to cross-examine witnesses
and to call witnesses in his behalf has been held not applicable to a congressional hearing. United States v. Fort, 443
F.2d 670 (D.C. Cir. 1970), cert. denied, 403 U.S. 932 (1971).
358 Watkins v. United States, 354 U.S. 178, 197 (1957).
359 360 U.S. 109, 126 (1959).
360 Id.
361 Watkins, 354 U.S. at 198. A balancing test was also used in Branzburg v. Hayes, which involved the issue of the
claimed privilege of newsmen not t o respond t o demands of a grand jury for information. See 408 U.S. 665 (1972). In

rights of witnesses, in cases involving the First Amendment, the courts have emphasized the
requirements discussed above concerning authorization for the investigation, delegation of power 362
to investigate to the committee involved, and the existence of a legislative purpose.
While the Court has recognized the application of the First Amendment to congressional
investigations, and although the amendment has frequently been asserted by witnesses as grounds
for not complying with congressional demands f or information, the Court has never relied on the 363
First Amendment as grounds for reversing a criminal contempt of Congress conviction.
However, the Court has narrowly construed the scope of a committee’s authority so as to avoid 364
reaching a First Amendment issue. In addition, the Court has ruled in favor of a witness who 365
invoked his First Amendment rights in response to questioning by a state legislative committee.
In a 1976 investigation of the unauthorized publication in the press of the report of the House
Select Committee on Intelligence, the Committee on Standards of Official Conduct subpoenaed 366
four news media representatives, including Daniel Schorr. The Standards of Official Conduct
Committee concluded that Mr. Schorr had obtained a copy of the Select Committee’s report and
had made it available for publication. Although the ethics committee found that “Mr Schorr’s role
in publishing the report was a defiant act in disregard of the expressed will of the House of
Representatives to preclude publication of highly classified national security information,” it 367
declined to cite him for contempt for his refusal to disclose his source. The desire to avoid a

its 5-4 decision, the Court concluded that the need of the grand jury for the information outweighed First Amendment
considerations, but there are indications in the opinion thatthe infringement of protected First Amendment rights must
be no broader than necessary to achieve a permissible governmental purpose,” and that “a State’s interest must be
‘compelling or ‘paramount’ to justify even an indirect burden on First Amendment rights.” Id. at 699-700; see also
Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963) (applying the compelling interest test in a
legislative investigation).
362 See, e.g., Barenblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States, 354 U.S. 178 (1957); United
States v. Rumely, 345 U.S. 41 (1953); see also 4 Deschler’s Precedents, supra note 87, ch. 15, § 10, n. 15 and
accompanying text.
363 Leading Cases, supra note 297, at 42; Hamilton, supra note 320, at 234. Although it was not in the criminal
contempt context, one court of appeals has upheld a witness’s First Amendment claim. In Stamler v. Willis, the Seventh
Circuit Court of Appeals ordered to trial a witness’s suit for declaratory relief against the House Un-American
Activities Committee in which it was alleged that the committees authorizing resolution had achilling effect on th
plaintiffs First Amendment rights. See 415 F.2d 1365 (7 Cir. 1969), cert. denied, 399 U.S. 929 (1970). In other cases
for declaratory and injunctive relief brought against committees on First Amendment grounds, relief has been denied
although the courts indicated that relief could be granted if the circumstances were more compelling. See, e.g., Sanders
v. McClellan, 463 F.2d 894 (D.C. Cir. 1972); Davis v. Chord, 442 F. 2d 1207 (D.C. Cir. 1970); Ansara v. Eastland, 442
F.2d 751 (D.C. Cir. 1971). However, in Eastland v. United States Servicemens Fund, the Supreme Court held that the
Constitutions Speech or Debate Clause (Art. I, sec. 6, cl. 1) generally bars suits challenging the validity of
congressional subpoenas on First Amendment or other grounds. Thus, a witness generally cannot raise his
constitutional defenses until a subsequent criminal prosecution for contempt unless, in the case of a Senate committee,
the statutory civil contempt procedure is employed. 421 U.S. 491 (1975); see also United States v. House of
Representatives, 556 F. Supp. 150 (D.D.C. 1983).
364 United States v. Rumely, 345 U.S. 41 (1953).
365 Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963). In the majority opinion, Justice
Goldberg observed thatan essential prerequisite to the validity of an investigation which intrudes into the area of
constitutionally protected rights of speech, press, association and petition [is] that the State convincingly show a
substantial relation [or nexus] between the information sought and a subject of overriding and compelling state interest.
Id. a t 546.
366 H.Rept. 94-1754, 94th Cong. 2d Sess., 6 (1976).
367 Id. at 42-43.

clash over First Amendment rights apparently was a major factor in the committee’s decision on 368
the contempt matter.
In another First Amendment dispute, the Special Subcommittee on Investigations of the House
Committee on Interstate and Foreign Commerce, in the course of its probe of allegations that
deceptive editing practices were employed in the production of the television news documentary
program The Selling of the Pentagon, subpoenaed Frank Stanton the president of CBS, directing 369
him to deliver to the subcommittee the “outtakes” relating to the program. When, on First
Amendment grounds, Stanton declined to provide the subpoenaed materials, the subcommittee
unanimously voted a contempt citation, and the full committee by a vote of 25-13 recommended 370
to the House that Stanton be held in contempt. After extensive debate, the House failed to adopt 371
the committee report, voting instead to recommit the matter to the committee. During the
debate, several Members expressed concern that approval of the contempt citation would have a
“chilling effect” on the press and would unconstitutionally involve the government in the 372
regulation of the press.
Several opinions of the Supreme Court indicate that the Fourth Amendment’s prohibition against
unreasonable searches and seizures is applicable to congressional committees; however, there has 373
not been an opinion directly addressing the issue. It appears that there must be a legitimate 374
legislative or oversight-related basis for the issuance of a congressional subpoena. The Fourth
Amendment protects a congressional witness against a subpoena which is unreasonably broad or 375
burdensome. The Court has outlined the standard to be used in judging the reasonableness of a
congressional subpoena:
Petitioner contends that the subpoena was so broad as to constitute an unreasonable search
and seizure in violation of the Fourth Amendment .... ‘Adequacy or excess in the breath of
the subpoena are matters variable in relation to the nature, purposes, and scope of the
inquiry .... The subcommittee’ s inquiry here was a relative1y broad one ... and the
permissible scope of materials that could reasonably be sought was necessarily equally
broad. It was not reasonable to suppose that the subcommittee knew precisely what books

368 Id. at 47-48 (additional views of Representatives Spence, Teague, Hutchinson, and Flynt).
369 The outtakes were portions of the CBS film clips that were not actually broadcast. The subcommittee wanted to
compare the outtakes with the tape of the broadcast to determine if improper editing techniques had been used.
370 H.Rept. 92-349, 92d Cong., 1st Sess. (1971). The legal argument of CBS was based in part on the claim that
Congress could not constitutionally legislate on the subject of editing techniques and, therefore, the subcommittee
lacked a valid legislative purpose for the investigation. Id. at 9.
371 See 117 CONG. REC. 23922-926, 24603-59, 24720-53 (1971).
372 Id. at 24731-732.
373 Watkins v. United States, 354 U.S. 178, 188 (1957); see also McPhaul v. United States, 364 U.S. 372 (1960).
374 A congressional subpoena may not be used in a merefishing expedition.” See Hearst v. Black, 87 F.2d 68, 71 (D
.C. Cir. 1936) (quoting, Federal Trade Commission v. American Tobacco Co., 264 U.S. 298, 306 (1924) (stating that
[i]t is contrary to the first principles of justice to allow a search through all the records, relevant or irrelevant, in the
hope that something will turn up.))); see also United States v. Groves, 188 F. Supp. 314 (W.D. Pa. 1937) (dicta); But
see Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 509 (1975), (recognizing that an investigation may
leadup someblind alleys and into nonproductive enterprises. To be a valid legislative inquiry there need be no
predictable end result.).
375 McPhaul v. United States, 364 U.S. 372 (1960); see also Shelton v. United States, 404 F.2d 1292 (D.C. Cir. 1968),
cert. denied, 393 U.S. 1024 (1969).

and records were kept by the Civil Rights Congress, and therefore the subpoena could only
specify ... with reasonable particularity, the subjects to which the documents ... relate .... ‘The
call of the subpoena for ‘all records, correspondence and memoranda’ of the Civil Rights
Congress relating to the specified subject describes them with all of the particularity the
nature of the inquiry and the [subcommittee’s] situation would permit .... ‘The description
contained in the subpoena was sufficient to enable [petitioner] to know what particular 376
documents were required and to select them adequately.
If a witness has a legal objection to a subpoena duces tecum or is for some reason unable to
comply with a demand for documents, he must give the grounds for his noncompliance upon the
return of the subpoena. As the D.C. Circuit stated:
If [the witness] felt he could refuse compliance because he considered the subpoena so broad
as to constitute an unreasonable search and seizure within the prohibition of the fourth
amendment, then to avoid contempt for complete noncompliance he was under [an]
obligation to inform the subcommittee of his position. The subcommittee would then have
had the choice of adhering to the subpoena as formulated or of meeting the objection in light 377
of any pertinent representations made by [the witness].
Similarly, if a subpoenaed party is in doubt as to what records are required by a subpoena or
believes that it calls for documents not related to the investigation, he must inform the committee.
Where a witness is unable to produce documents he will not be held in contempt “unless he is
responsible for their unavailability ... or is impeding justice by not explaining what happened to 378
The application of the exclusionary rule to congressional committee investigation is in some
doubt and appears to depend on the precise facts of the situation. It seems that documents which
were unlawfully seized at the direction of a congressional investigating committee may not be
admitted into evidence in a subsequent unrelated criminal prosecution because of the command of 379
the exclusionary rule. In the absence of a Supreme Court ruling, it remains unclear whether the
exclusionary rule bars the admission into evidence in a contempt prosecution of a congressional
subpoena which was issued on the basis of documents obtained by the committee following their 380
unlawful seizure by another investigating body (such as a state prosecutor).

376 McPhaul, 364 U.S. at 832.
377 Shelton, 404 F.2d at 1299-1300; see also Leading Cases, supra note 297, at 49.
378 McPhaul, 364 U.S. at 382.
379 Nelson v. United States, 208 F.2d 505 (D.C. Cir.), cert. denied, 346 U.S. 827 (1953).
380 In United States v. McSurely, 473 F.2d 1178, 1194 (D.C. Cir. 1972), the court of appeals reversed contempt
convictions where the subcommittee subpoenas were based on information “derived by the subcommittee through a
previous unconstitutional search and seizure by [state] officials and the subcommittees own investigator.” The
decision of the court of appeals in the contempt case was rendered in December, 1972. In a civil case brought by the
criminal defendants, Alan and Margaret McSurely, against Senator McClellan and the subcommittee staff for alleged
violations of their constitutional rights by the transportation and use of the seized documents, the federal district court
in June, 1973, denied the motion of the defendants for summary judgment. While the appeal from the decision of the
district court in the civil case was pending before the court of appeals, the Supreme Court held, in Calandra v. United
States, 414 U.S. 338 (1974), that a grand jury is not precluded by the Fourth Amendment’s exclusionary rule from
questioning a witness on the basis of evidence that had been illegally seized. A divided court of appeals subsequently
held in McSurely v. McClellan, 521 F.2d 1024, 1047 (D.C. Cir. 1975), that under Calandra “a congressional committee
has the right in its investigatory capacity to use the product of a past unlawful search and seizure.
The decision of the three-judge panel in the civil case was vacated and on rehearing by the full District of Columbia
Circuit, five judges were of the view that Calandra was applicable to the legislative sphere and another five judges

Although it has never been necessary for the Supreme Court to decide the issue, in dicta it has
been indicated that the privilege against self-incrimination afforded by the Fifth Amendment is 381382
available to a witness in a congressional investigation. The privilege is personal in nature, 383384385
and may not be invoked on behalf of a corporation, small partnership, labor union, or other 386
“artificial” organizations. The privilege protects a witness against being compelled to testify 387
but generally not against a subpoena for existing documentary evidence. However, where
compliance with a subpoena duces tecum would constitute implicit testimonial authentication of 388
the documents produced, the privilege may apply.
There is no required verbal formula for invoking the privilege, nor does there appear to be 389
necessary a warning by the committee. A committee should recognize any reasonable 390
indication, such as “the fifth amendment,” that the witness is asserting his privilege. Where a
committee is uncertain whether the witness is in fact invoking the privilege against self-
incrimination or is claiming some other basis for declining to answer, the committee should direct 391
the witness to specify his privilege or objection.
The committee can review the assertion of the privilege by a witness to determine its validity, but
the witness is not required to articulate the precise hazard that he fears. In regard to the assertion
of the privilege in judicial proceedings, the Supreme Court has advised:

found it unnecessary to decide whether Calandra applies to committees but indicated that, even if it does not apply to
the legislative branch, the exclusionary rule may restrict a committee’s use of unlawfully seized documents if it does
not make merederivative use of them but commits an independent fourth amendment violation in obtaining them.
McSurely v. McClellan, 553 F.2d 1277, 1293-94, 1317-25 (D.C. Cir. 1976) (en banc). The Supreme Court granted
certiorari in the case, 434 U.S. 888 (1977), but subsequently dismissed certiorari as improvidently granted, with no
explanation for this disposition of the case. See McAdams v. McSurely, 438 U.S. 189 (1978). Jury verdicts were
eventually returned against the Senate defendants, but were reversed in part on appeal. See 753 F.2d 88 (D.C. Cir.
1985), cert. denied, 54 U.S.L.W. 3372 (Dee. 3, 1985).
381 Watkins v. United States, 354 U.S. 178 (1957); Quinn v. United States, 349 U.S. 155 (1955).
382 See McPhaul v. United States, 364 U.S. 372 (1960); see also McCormick, EVIDENCE § 120 (Cleary ed. 1984)
[hereinafter McCormick].
383 Hale v . Henkel, 201 U.S. 43 (1906).
384 Bellis v. United States, 417 U.S. 85 (1974).
385 See United States v. White, 322 U.S. 694 (1944).
386 Bellis, 417 U.S. at 90; see also Rogers v. United States, 340 U.S. 367 (1951) (Communist Party).
387 Fisher v. United States, 425 U.S. 391, 409 (1976); Andresen v. Maryland, 427 U.S. 463 (1976). The cases
concerned business records and there may be some protection available in the case of a subpoena for personal papers.
See McCormick, supra note378 at §§ 126, 127.
388 United States v. Coe, 465 U.S. 605 (1984); Fisher v. United States, 425 U.S. 391 (1976). see also Curcio v. United
States, 354 U.S. 118 (1957); McCormick, supra note 378 at § 126.
389 Although there is no case law on point, it seems unlikely that Miranda warnings are required. That requirement
flows from judicial concern as to the validity of confessions evoked in an environment of a police station, isolated from
public scrutiny, with the possible threat of physical and prosecutorial jeopardy; an environment clearly distinguishable
from a congressional context. See Miranda v. Arizona, 384 U.S. 436 (1966).
390 Quinn v. Unlted States, 349 U.S. 155 (1955).
391 Emspak v. United States, 349 U.S. 190 (1955); see also Leading Cases, supra note 297 at 63.

To sustain the privilege, it need only be evident, from the implications of the question, in the
setting in which it is asked, that a responsive answer to the question or an explanation of why
it cannot be answered might be dangerous because injurious disclosure could result .... To
reject a claim, it should be ‘perfectly clear, from a careful consideration of all the
circumstances of the case, that the witness is mistaken, and that the answers cannot possibly 392
have a tendency to incriminate.
The basis for asserting the privilege was elaborated upon in a lower court decision:
The privilege may only be asserted when there is reasonable apprehension on the part of the
witness that his answer would furnish some evidence upon which he could be convicted of a
criminal offense ... or which would reveal sources from which evidence could be obtained
that would lead to such conviction or to prosecution therefore ... .Once it has become
apparent that the answers to a question would expose a witness to the danger of conviction or 393
prosecution, wider latitude is permitted the witness in refusing to answer other questions.
The privilege against self-incrimination may be waived by declining to assert it, specifically
disclaiming it, or testifying on the same matters as to which the privilege is later asserted.
However, because of the importance of the privilege, a court will not construe an ambiguous 394
statement of a witness before a committee as a waiver.
Where a witness asserts the privilege, the full House or the committee conducting the
investigation may seek a court order which (a) directs the witness to testify and (b) grants him
immunity against the use of his testimony, or other evidence derived from his testimony, in a 395
subsequent criminal prosecution. The immunity that is granted is “use” immunity, not
“transactional” immunity. Neither the immunized testimony that the witness gives, nor evidence
derived therefrom, may be used against him in a subsequent criminal prosecution, except one for
perjury or contempt relating to his testimony. However, he may be convicted of the crime (the 396
“transaction”) on the basis of other evidence.
The application for the judicial immunity order must be approved by a majority of the House or 397
Senate or by a two-thirds vote of the full committee seeking the order. The Attorney General
must be notified at least ten days prior to the request for the order, and he can request a delay of 398
twenty days in issuing the order. Although the order to testify may be issued before the

392 Hoffman v. United States, 341 U.S. 479, 486-87 (1951).
393 United States v. Jaffee, 98 F. Supp. 191, 193-94 (D.D.C. 1951); see also Simpson v. United States, 241 F.2d 222 (9th
Cir. 1957) (privilege inapplicable to questions seeking basic identifying information, such as the witness’s name and
394 Emspak v. United States, 349 U.S. 190 (1955); see also Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
395 18 U.S.C. §§ 6002, 6005 (2000).
396 The constitutionality of granting a witness only use immunity rather than transactional immunity, was upheld in
Kastigar v. United States, 406 U.S. 441 (1972). In United States v. Romano, 583 F.2d 1 (1st Cir. 1978), the defendant
appealed from his conviction of several offenses on the ground, inter alia, that the prosecutions evidence had been
derived, in part, from immunized testimony that he had given before a Senate subcommittee. Although the conviction
was affirmed, the case illustrates the difficulty that the prosecutor may have in establishing that its evidence was not
tainted,” but rather was derived from independent sources, especially in a case where there was some cooperation in
the investigation between a committee and the Justice Department prior to the grant of immunity to testify before the
committee. See Kastigar, 406 U.S. at 461-621.
397 18 U.S.C. § 6005(a) (2000).
398 However, the Justice Department may waive the notice requirement. Application of the Senate Permeant
Subcommittee on Investigations, 655 F.2d 1232, 1236 (D.C. Cir. 1980), cert. denied, 454 U.S. 1084 (1981).

witness’s appearance,399 it does not become legally effective until the witness has been asked the 400
question, invoked his privilege, and been presented with the court order. The role of the court
in issuing the order has been held to be ministerial and, thus, if the procedural requirements under
the immunity statute have been met, the court may not refuse to issue the order or impose 401
conditions on the grant of immunity.
The due process clause of the Fifth Amendment requires that “the pertinency of the interrogation
to the topic under the ... committee’s inquiry must be brought home to the witness at the time the 402
questions are put to him.” “Unless the subject matter has been made to appear with
undisputable clarity, it is the duty of the investigative body, upon objection of the witness on
grounds of pertinency, to state for the record the subject under inquiry at that time and the manner 403
in which the propounded questions are pertinent thereto.” Additionally, to satisfy both the
requirement of due process as well as the statutory requirement that a refusal to answer be
“willful,” a witness should be informed of the committee’s ruling on any objections he raises or 404
privileges which he asserts.
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 405
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 406
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.

399 Application of the Senate Permeant Subcommittee on Investigations, 655 F.2d at 1257
400 See In re McElreath, 248 F.2d 612 (D.C. Cir. 1957) (en banc).
401 Application of the U.S. Senate Select Committee on Presidential Campaign Activities , 361 F. Supp. 1270 (D.D.C.
1973). In dicta, however, the court referred to the legislative history of the statutory procedure, which suggests that
although a court lacks power to review the advisability of granting immunity, a court may consider the jurisdiction of
Congress and the committee over the subject area and the relevance of the information that is sought to the committee’s
inquiry. See id. at 1278-79.
402 Deutch v. United States, 367 U.S. 456, 467-68 (1961). As the court explained in that case, there is a separate
statutory requirement of pertinency.
403 Watkins v. United States, 354 U.S. 178, 214-15 (1957).
404 Deutch v. United States, 367 U.S. 456, 467-68 (1961).
405 See generally, H.Rept. 110-423 (2007), available at,
ContemptReport071105.pdf; see also H. Jud. Comm. Mot. Summ. J. at 11 (copy on file with authors).
406 H. Jud. Comm. Mot. Summ. J. at 12.

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 407
pursuant to her subpoena. 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 408
privilege. Subsequently, Ms. Miers’s attorney notified the Committee that, as a result of the 409
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 410
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 411
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 412
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 413
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 414
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 415
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 416
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.

407 See Id.
408 Id.
409 Id.
410 See H.Rept. 110-423, 60 (2007).
411 See H.Res. 979, H.Res. 980, H.Res. 982, 110th Cong. (2008).
412 See H.Res. 982, 110th Cong. (2008).
413 H. Jud. Comm. Mot. Summ. J. at 13.
414 Id. at 13-14.
415 Id.
416 See FED. R. CIV. P. 56.

Morton Rosenberg Todd B. Tatelman
Legislative Attorney, 7-4697