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Shkreli and the House’s Power of Inherent Contempt

Although the congressional contempt statute only applies to witnesses who fail to provide information demanded by Congress, a broader range of misbehavior is subject to Congress’s so-called inherent contempt power. This is the process by which Congress itself, just like a court, can punish witnesses and other individuals who appear before it or attend its proceedings. As the Supreme Court observed long ago, each house of Congress must have this power “to guard itself from contempts” or else be “exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may mediate against it.” Anderson v. Dunn, 19 U.S. 204, 228 (1821). That “such an assembly should not possess the power to suppress rudeness, or repel insult is a supposition too wild to be suggested.” Id. at 229.

I mention this because it turns out that Mr. Shkreli followed up his antics before the House committee today by tweeting: “Hard to accept that these imbeciles represent the people in our government.” Interestingly, he also tweeted: “I had prior counsel produce a memo on facial expressions during congressional testimony if anyone wants to see it. Interesting precedence.”

Well, I would love to see this “precedence” (I told him as much via Twitter, but so far he has not sent me the memo). But in any event it seems clear that his facial expressions were not the result of nervousness (as his counsel claimed), but were pre-planned expressions of rudeness and insult to the committee. At the very least, there would seem to be a firm basis for the House to direct the Sergeant at Arms to take Shkreli into custody and bring him before the bar of the House to explain himself.

I realize this isn’t likely to happen, but in my view the House would be within its constitutional powers if it did.

3 Comments

  1. Frank Arey says:

    Michael, this may be slightly off-topic, but maybe not.

    Brendan (“I’m not a potted plant”) Sullivan spoke relatively freely at Oliver North’s hearings. But yesterday, Shkreli’s lawyer couldn’t get a word in edgewise. What made the difference in the level of participation of counsel? A strong response from the Chair? One lawyer was more combative or aggressive than the other? North had some degree of public sympathy, but no one is sympathetic to Shkreli? Or are there other factors?

    Thanks in advance for your thoughts.

    • This is a good question to which I am not sure I know the complete answer. Generally speaking, lawyers at House hearings are allowed to accompany witnesses and advise them as to their constitutional rights, but they are not permitted to address the committee, at least not without leave of the chair. This is not explicitly provided for in the House rules, but is an interpretation of the provision in House rule XI that addresses the role of lawyers (“Witnesses at hearings may be accompanied by their own counsel for the purpose of advising them concerning their constitutional rights.”)

      How long this interpretation has held sway or been strictly enforced I am not sure, but as far as I can recollect right now, the witness’s lawyer in recent years always sits behind the witness, not at the table, and only speaks to the witness unless the committee shows an interest in hearing directly from the lawyer (which it sometimes does).

      In North’s case, he was testifying before the Iran-Contra Select Committee, which was a joint committee of both houses and therefore would not necessarily have been governed by House rules or practice in this regard. But as Sullivan’s statement suggests, the committee may have wanted him to be a “potted plant,” he just refused to follow the committee’s instructions and was able to out-bluster it.

  2. Frank Arey says:

    I didn’t consider staging – particularly, the seating arrangement – but that makes a lot of sense. Come to think of it, Sullivan was seated at the table with North – unlike Brafman, who sat behind Shkreli with the rest of the audience. Sullivan was certainly in a better position to cut in ahead of North and respond to questions, make statements, object, etc.

    Thanks again for your comment. The role of counsel for a witness is an interesting one in these situations.

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