In my prior post on former Speaker Gingrich’s plan to subpoena federal judges to testify before Congress, I assumed that any enforcement of such subpoenas would follow the statutory contempt process set forth in 2 U.S.C. § 194. It crossed my mind to mention an alternative mechanism, but the idea seemed so unlikely (zany, one might even say) that I did not do so.
The aforementioned alternative involves what is known as “inherent contempt,” under which one house of Congress orders its Sergeant at Arms to take a recalcitrant witness into custody and to bring the witness before the bar of the House or Senate to be tried for contempt. This power was exercised on a regular basis until the early 20th Century, but the House has not used it since 1916 and the Senate has not used it since 1935. For more on how inherent contempt works, see here.
This weekend Gingrich suggested in an interview that Congress could use this power to secure the attendance of judges at congressional hearings. This is a surprising suggestion for several reasons. First, the recognized method for challenging inherent contempt is to seek a writ of habeas corpus in federal court. I imagine that it wouldn’t take the subpoenaed judge very long to procure a writ directing his or her release from congressional custody.