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.
Second, the specter of Congress arresting federal judges for issuing decisions of which it disapproves is, to put it mildly, rather unsettling. Many people were critical of President Obama for “an unprecedented scolding” of Supreme Court justices, seated before him during the 2010 State of the Union address, regarding their decision in the Citizens United case. If Obama’s speech came uncomfortably close to an attempt to intimidate the federal judiciary, imagine if he had called for the justices to be arrested and hauled before Congress to explain their decision.
In the 2008 Miers case, Judge Bates rejected the notion that the House should be required to use its inherent contempt power to obtain information from executive officials, referring to “the unseemly scenario of the arrest and detention of high-ranking executive branch officials, which would carry the possibility of precipitating a serious constitutional crisis.” These observations would be equally apt in the scenario where a federal judge is arrested by Congress. (And I am assuming here that Gingrich, despite his rejection of “judicial supremacy,” would recognize the authority of the federal courts to issue a writ of habeas corpus releasing a witness in congressional custody.)
Finally, Gingrich’s statement is surprising because, during his years as Speaker, he never attempted to use the inherent contempt process. As I noted in 2007, during the Clinton administration Republican committee chairs were frequently frustrated by the administration’s failure to provide information or respond to subpoenas. However, Gingrich never used, or even publicly threatened to use, inherent contempt against the Clinton administration.
Indeed, for all his current bravado, Gingrich was not particularly aggressive in enforcing congressional subpoenas during his speakership. For example, in August 1998, a House committee voted to hold Attorney General Janet Reno in contempt for her repeated refusal to produce Justice Department memoranda relating to campaign finance violations during the 1996 elections. Under 2 U.S.C. § 194, Gingrich could have certified the contempt to the United States Attorney for prosecution while the House was in recess. He did not do so, nor did he have the matter brought before the full House when it returned.
One has to wonder whether Gingrich is serious, or if he is merely showing off how much he knows about congressional procedure.