So at virtually the same time I told you that Parliament’s contempt power was in a state of desuetude, this happened. The House of Commons held the British government in contempt for its failure to publish the Attorney General’s legal advice regarding Brexit as the House had previously demanded.
To be sure, my prior post related to the use of contempt to impose punitive measures such as fines or imprisonment. These were not involved in yesterday’s contempt vote, which the article describes as “largely symbolic.” Yet it appears that the government intends to comply with the Commons’ demands as a consequence of the contempt vote. Moreover, while the use of contempt to impose rebukes is more common than fines or imprisonment, it is still extremely rare. According to this 2012 analysis I referred to yesterday, the last time someone was called to the bar of the house to be admonished by the Speaker was in the 1956-57 session. And it is apparently the first time ever that the British government itself has been held in contempt.
It should be noted that Congress’s inherent power of contempt derives from Parliament’s power (and thus has been recognized as being an “inherent” part of the legislative power conveyed in Article I). From time to time, the idea of using the inherent contempt power against a recalcitrant executive branch has been broached, but the idea always founders on practical considerations (e.g., what happens if the recalcitrant executive official is protected by security that does not want to surrender him/her to the custody of the Sergeant at Arms?).
If the House (or Senate) were to follow the procedure apparently used in the House of Commons yesterday, however, these problems largely disappear. The Commons simply voted on a resolution holding the government in contempt, without following the normal practice of referring the matter to the Committee on Privileges. No trial was held, nor was anyone (it appears) called to the bar of the house.
If Congress were to follow such a process, it would more closely resemble a censure or similar resolution, as opposed to a finding of contempt. It could be argued that such a largely symbolic action would have little impact in our system, where the continuation of the government does not depend on majority support in the legislature. On the other hand, if contempt were used, it would be possible for a trial to be held, with an executive official (or the entire executive branch) as the “defendant.” It would be up to the executive branch whether it wanted to attend or mount a defense. One can imagine that such a process could be more powerful as a display of soft power than a simple vote on a resolution.
We will see if some enterprising member of Congress picks up on this.
2 Replies to “An Update on Parliament’s Contempt Power”
Mike, I am surprised you take such a dim, limited view of Congress’s long recognized constitutionally recognized inherent institutional powers of self-protection. In Anderson v. Dunn (1821), the Supreme Court explicitly rested its rationale for upholding the congressional exercise of inherent contempt authority, which allowed for arrest, detention and incarceration and/or fine upon conviction by the House or Senate, on its understanding that courts at that time had a similar inherent self-protective authority, which included imprisonment and fines, even if there was no express statutory authority for such action. In Young v. U.S. ex rel. Louis Vuitton, 481 U.S. 787, 795 (1987)The Supreme Court reiterated that understanding when it blessed a district court’s appointment of a private attorney to criminally prosecute its contempt of court citation. It found no problem of conflict with any notion that such action interfered with any purported exclusive executive right of prosecution (or not).The recent 9th Circuit ruling in U.S. v. Arpaio, No. 12-10448 (Oct. 10, 2018)supports that understanding as well. In addition, a year after the Louis Vuitton ruling, the Court in Morrison v. Olson, 487 U.S. 654 (1989), approvingly cited it as further support for legislative vestment of authority to assign selection of an independent counsel in a court panel where there was an obvious conflict of interest for DOJ to be asked to prosecute an executive official at the behest of the Congress. In fact, a careful reading of Morrison demonstrates a rejection of the notion of a unitary executive in its 7-1 ruling that included the assertion that prosecutorial discretion was not a core presidential power and that Congress could exercise substantial control of the structure of the executive branch, including limiting the president’s removal power. Any doubt the breadth of the majority’s ruling is dispelled by a cursory reading Scalia’s infamous, bitter dissent.
Turning to history, in 1857, when Congress decided that Anderson’s limitation on incarceration beyond the end of a session of the Congress was stifling its coercive powers, it passed the criminal contempt statute which directed prosecutions of congressional contempt citations by U.S. Attorneys. There was no sense that it was coopting executive prosecutorial discretion. The legislative history of the legislation makes it clear that it was intended to be applicable to executive branch officials. Rather, it was enlisting the aid of the courts via those attorneys who were contract employees of the executive branch. Recall, there was no Justice Department at that time; it was not established until 1870. Thus there was no problem of a DOJ conflict of interest that arises today with prosecution of an alleged contemnor who is an executive branch official. It seems to me if the law with respect to the ability of judges to vindicate their judicial authority and dignity by the appointment of private prosecutors derives from an inherent constitutional necessity, and that by judicially recognized analogy such an inherent self-protective authority also inheres in the House, why isn’t it possible for the House to simply by resolution direct the appointment of private counsel to conduct such a criminal prosecution? That’s effectively what occurred during the investigations of the Tea Pot dome scandals. The congressional contempt of Congress citation against Sinclair that ultimately was favorably decided by the High Court was brought by those selected counsels. What do think? Since my proposal for a more “seemly” inherent contempt appears to be going no where, and no one in the new House leadership seems to willing to confront in advance the inevitable obstruction of subpoena demands by this Executive, perhaps this alternative should be brought to the fore. u
Mort- sorry, I missed this comment before.
My view is that the best way for the House (or Senate) to approach document requests/subpoenas to executive branch agencies would be to put in place procedures such as I have suggested at Good Government Now (https://goodgovernmentnow.org/2018/09/22/ggn-rule-on-civil-enforcement-of-congressional-subpoenas/). These would culminate with a requirement that the president either assert executive privilege personally and in writing, or the privilege would be waived and the committee could proceed to court to get an order directing the agency to comply.
If the president does assert privilege, the House would have a number of options, including using political remedies such as appropriations to force the agency to comply with its demands. The ultimate remedy would be impeachment, either against the official who is withholding the documents or against the president who ordered the official not to comply. If the documents themselves were relevant to an impeachment inquiry, the House could also draw an adverse inference from the failure to produce them. I do not think, however, that inherent contempt would ordinarily be a good remedy if it involves punishing (through fines or imprisonment) a lower official who is simply following the president’s direction to withhold documents.
I think inherent contempt is potentially more appropriate for refusals to testify or to answer particular questions. Even there, however, one would have to be extremely careful in how the process was structured and extremely selective in when it was used. If the House (or Senate) is interested in having this remedy available, it should be developed in advance of any particular controversy.
With regard to your suggestion that outside counsel be retained to bring criminal prosecutions against contumacious witnesses (if I understand correctly), I don’t see how this could be done without passing a statute establishing such a process. Perhaps such a statute could survive constitutional challenge, perhaps not, but it seems unlikely that such a statute could be enacted anytime in the foreseeable future.
Happy New Year! Hope to talk with you soon.