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Congress’s Contempt Power: Law, History,Practice, and Procedure
July 24, 2007
Morton RosenbergSpecialist in American Public LawAmerican Law DivisionTodd B. TatelmanLegislative AttorneyAmerican Law Division
Congress’s Contempt Power: Law, History, Practice,and Procedure
Summary
Congress’s contempt power is the means by which Congress responds to certainacts that in its view obstruct the legislative process. Contempt may be used either tocoerce compliance (inherent contempt), punish the contemnor (criminal contempt),and/or to remove the obstruction (civil contempt). Although arguably any action thatdirectly obstructs the effort of Congress to exercise its constitutional powers mayconstitute a contempt, in the last seventy years the contempt power (primarilythrough the criminal contempt process) has generally been employed only ininstances of refusals of witnesses to appear before committees, to respond toquestions, or to produce documents.This report examines the source of the contempt power, reviews the historicaldevelopment of the early case law, outlines the statutory and common law basis forCongress’s contempt power, and analyzes the procedures associated with each of thethree different types of contempt proceedings. In addition, the report discusseslimitations both nonconstitutional and constitutionally based on the power.
Contents
Introduction..................................................1Congress’s Power to Investigate..................................2Early History of Congressional Contempt...........................4Inherent Contempt............................................12Inherent Contempt Proceedings By Committees of Congress...........15Statutory Criminal Contempt....................................20The Position of the Department of Justice on the Use of Inherent and/orCriminal Contempt of Congress Against the Executive Branch.....27Civil Contempt...............................................33Civil Contempt in the Senate................................33Civil Contempt in the House of Representatives.................37Non-Constitutional Limitations..................................46Authorization and Jurisdiction...............................46Legislative Purpose.......................................48Pertinency...............................................50Willfulness..............................................52Other Procedural Requirements..............................52Attorney-Client Privilege...................................53Work Product Immunity and Other Common Law TestimonialPrivileges...............................................56Constitutional Limitations......................................58First Amendment.........................................58Fourth Amendment.......................................60Fifth Amendment Privilege Against Self-Incrimination...........62Fifth Amendment Due Process Rights.........................65
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