(Don’t) Lock Him Up?

By “him,” of course, I mean this guy:

This is Hudson Snowden Marshall, who served as the United States Attorney for the Southern District of New York from 1915 to 1917. He also has the honor of being one of only two executive branch officials ever arrested by the Sergeant at Arms for contempt of Congress. The significance of Marshall’s case for interpreting the scope of the congressional contempt power is a matter of some contention, to which we will return in future posts. Compare Josh Chafetz, Executive Branch Contempt of Congress, 76 U. Chi. L. Rev. 1083,  1137-39 (2009) (arguing that Marshall’s case supports the proposition that the contempt power extends to actions of executive branch officials) with Todd David Peterson, Contempt of Congress v. Executive Privilege, 14 U. Pa. J. Const. L. 77, 128-30 (2011) (arguing that Marshall’s case has no broader significance because it involved no claim of executive privilege or separation of powers).

For today, however, I want to focus on the procedure used to “lock up” Marshall when the House held him in contempt in 1916. To the extent the House is considering the possibility of including a contempt process in its current impeachment inquiry, Marshall’s story is instructive.

A brief background may be helpful. Marshall’s contempt arose out of an intense conflict with a member of the House of Representatives. Marshall’s office procured an indictment in the Southern District of New York of the member (Frank Buchanan, a representative from Illinois) for violations of the Sherman antitrust act. The indictment alleged that Buchanan was receiving funds from Germany  to foment labor strikes in American factories as part of Germany’s effort during WWI (which America had not yet entered) to disrupt American munitions shipments to the allies. Buchanan, in turn, accused Marshall of all manner of corruption and impeachable offenses, and he succeeded in persuading the House to authorize an investigation of Marshall’s alleged misconduct by the Judiciary Committee. See 6 Cannon’s Precedents § 530.

A special Judiciary subcommittee was then appointed to take evidence on the matter. It proceeded to hold hearings in New York in early March 1916. While these hearings were ongoing, a New York newspaper published an article which stated, among other things, “[i]t is the belief in [Marshall’s] office that the real aim of the Congress investigation is to put a stop to the criminal investigation of the pro-German partisans.” 6 Cannon’s Precedents § 531.

The subcommittee did not take kindly to this allegation and it immediately summoned the author, Leonard R. Holme, to demand that he disclose whether anyone in the U.S. attorney’s office had made this accusation to him. When Holme refused to answer, the Sergeant at Arms was directed to arrest him and keep him in custody until further notice. 6 Cannon’s Precedents § 531.

The Sergeant at Arms did as instructed, but found himself in a bit of a dilemma. How was he going to keep a prisoner in custody, particularly in New York. Apparently he asked the local United States marshal to place Holme in confinement, but the marshal understandably declined the opportunity to get in the middle of a battle between Congress and the U.S. attorney’s office. This forced the subcommittee to reconsider and order Holme released, somewhat to its own embarrassment. 6 Cannon’s Precedents § 531.

Fortunately, the mystery of Holme’s source was solved the next day when a letter arrived from Marshall, who not only identified himself as the source, but amplified his charges against the subcommittee and the House. Among his milder complaints was that it was “irregular and extraordinary” to conduct an impeachment inquiry without a formal House vote authorizing it. (Sound familiar?) He also said that he regarded any member of Congress who would take money from a foreign agent (obviously referring to Buchanan) as a “traitor” and felt “it was a great pity that such a person could only be indicted under the Sherman law, which carries only one year in jail as punishment.” 6 Cannon’s Precedents § 531. He further accused the subcommittee of “a deliberate effort to intimidate any district attorney who had the temerity to present charges against one of your honorable body” and said it “had apparently resolved to prevent prosecution by causing the district attorney in charge to be publicly slandered.” Id.

When the subcommittee returned to DC. the House adopted a resolution to investigate Marshall’s statements as contempt. A committee then recommended that Marshall be found guilty of “a breach of the privileges and a contempt of the House of Representatives.” 6 Cannon’s Precedents § 532. The House resolved that Marshall be brought to the bar of the House to answer these charges, and on June 22, 1916, the Speaker issued a warrant for Marshall’s arrest. Id.

Here is where we get to the point of today’s post. After Marshall was arrested on June 26, he immediately secured a writ of habeas corpus from Judge Learned Hand, who further ordered that pending a hearing Marshall “should be at liberty to go upon his own recognizance.” Journal of the House of Representatives, 64th Cong. 1st sess. 855 (July 5, 1916). Judge Hand then heard the case and issued a decision on July 22, in which he found for the House and dismissed the writ. (We will discuss the merits of Hand’s decision in a future post). Rather than immediately remanding Marshall to the custody of the Sergeant at Arms, however, Hand directed that Marshall remain free on his own recognizance until August 15, unless Marshall had filed an appeal by that date, in which case he would remain free until December 1, at which time he would be remanded to the custody of the Sergeant at Arms. 53 Cong. Rec., Pt. 12, p. 11,691 (July 27, 1916). This procedure allowed Marshall a reasonable but not indefinite period to challenge the lower court’s ruling on appeal.

While I do not know who suggested this procedure, it appears to have been agreeable to both parties. It makes sense that the House would have accepted it because, then as now, the House had little capacity to keep an individual in custody for any significant period of time. This is particularly true if the House could not count on the cooperation of the executive branch.

Marshall did appeal to the Supreme Court, but the case was not argued until December 11, 1916 and it was not decided until April 23, 1917. See Marshall v. Gordon, 243 U.S. 521 (1917). (Spoiler alert: Marshall won). Marshall apparently remained free during this period, presumably based on an understanding between the parties.

There would seem to be no reason why an arrangement like this could not be employed today, with or without the imprimatur of a court. As a condition of release by the Sergeant at Arms, a contumacious witness could agree to return to the custody of the House on a particular date or upon the occurrence of a specified event. In addition to being better for the witness, such a procedure ameliorates the House’s difficulties with keeping prisoners for extended periods. In the case of executive officials, it would also lessen concerns about “the specter of violence between the political branches.” See Andrew McCanse Wright, Constitutional Conflict and Congressional Oversight, 98 Marquette L. Rev. 881, 934 (2014).

There are a couple of ways to ensure that witnesses comply with the conditions of their parole. First, they can be released into the custody of their counsel. That way the lawyer is on the hook, at least reputationally, for her client’s behavior. Second, the witness can be informed that failure to comply with the specified conditions will result in monetary fines. While I am somewhat skeptical about the use of fines as a direct punishment for contempt, such fines would seem to be justifiable when the witness agrees to them as a substitute for confinement. Indeed, the Court noted in Anderson v. Dunn that legislative fines imposed in the past were justified as “mere commutation for confinement.”

This proposal, it should be noted, does not obviate the need for the Sergeant at Arms to arrest contemnors who refuse to surrender voluntarily. Moreover, some witnesses may refuse to agree to the specified conditions for release so the House will still need contingency plans for holding individuals for an indefinite period. As in the case of recent House subpoenas, though, once a few witnesses comply with the specified procedures, pressure will build on others to do so. (This assumes, of course, that these procedures will survive judicial review, which I believe they will).

It is important to note that this is not a plan for mass incarceration. Commitment for contempt still requires the witness to be brought before the bar of the House to show cause why he should not be held in contempt. This imposes a significant cost of time on the House, and is therefore not something it can do lightly or often.

Finally, for reasons we have discussed such a procedure will be more resistant to any type of judicial challenge if it is adopted in the context of an impeachment inquiry. Thus, if the House wishes to exercise this power, the time is now.



Kilbourn and Chapman and Rao. Oh my.

As it happens, the decision in Trump v. Mazars USA (D.C. Cir. Oct. 11, 2019) coincides nicely with our discussion of the congressional contempt power. Although Mazars involved the validity of a congressional subpoena, not the exercise of the contempt power per se, the cases we are about to encounter are quite relevant to an analysis of the D.C. Circuit’s opinion, particularly with regard to Judge Rao’s remarkable dissent.

Kilbourn v. Thompson

Following its decision in Anderson v. Dunn, 19 U.S. 204 (1821), the Supreme Court next had occasion to consider the contempt power in Kilbourn v. Thompson, 103 U.S. 168 (1880). Kilbourn arose out of a House special committee’s investigation into the bankruptcy of Jay Cooke & Co., a private firm with large investments in a somewhat shady “real estate pool”; the House resolution  establishing the committee recited that the government of the United States was a creditor of the bankrupt firm as the result of “improvident deposits by the Secretary of the Navy” of public moneys at the firm. 103 U.S. at 171. The resolution further recited that the bankruptcy trustee  “has recently made a settlement of the interest of the estate . . . to the disadvantage and loss, as it is alleged, of the numerous creditors of said estate, including the government of the United States, and . . . the courts are now powerless by reason of said settlement to afford adequate redress to said creditors.” Id.

Hallet Kilbourn, a real estate broker with knowledge of the private investments in question, was subpoenaed by the House to provide testimony and documents regarding the matter. He declined to do so, denying “the right of the House to investigate private business arbitrarily,” but stated that “if either the committee or the House would assert that the production of his private papers, or the revelation of his private business, would promote any public interest, or if any private individual would assert on oath that the papers asked for would lead to the detection of corruption, he would respond freely to all demands for information or papers.” 2 Hinds’ Precedents § 1609.

The House then ordered that the Speaker issue an arrest warrant for Kilbourn, pursuant to which the recalcitrant witness was brought before the bar of the House. When he continued to refuse to answer, the House held him in contempt and ordered the Sergeant-at-Arms to keep him in custody until such time as he was willing to provide the information demanded. 103 U.S. at 175; 2 Hinds’ Precedents § 1609.

While Kilbourn was in custody, he was indicted by a federal grand jury under the criminal contempt of Congress statute. This precipitated a conflict between the legislative branch and the executive/judicial branches when the U.S. marshal, with a warrant from the D.C. court, attempted to take custody of Kilbourn from the Sergeant-at-Arms. 2 Hinds’ Precedents § 1609. The Sergeant-at-Arms refused, and the House actually considered a Blackstonian resolution that would have asserted that the House, not the courts, had the ultimate right to determine the disposition of the prisoner. Id. The House rejected this resolution, however, and authorized the Sergeant-at-Arms to obey the court’s writ of habeas corpus. Id. The court eventually determined that Kilbourn should be released by the Sergeant-at-Arms and taken into custody by the U.S. marshal. Id.

Kilbourn subsequently sued the House for false imprisonment. Perhaps due to the prior tension with the executive branch, the House was represented by private counsel in the case. See Representation of Congress and Congressional Interests in Court: Hearings Before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 94th Cong., 2d sess. 511-12 (1974-75). For whatever reason, the House’s position was much less warmly received when it reached the Supreme Court than it had been in Anderson.

While the Anderson Court embraced the key arguments of the “pro-contempt” side of congressional debates (particularly the argument that the contempt power was an absolute necessity to protect the functioning of Congress), the Kilbourn Court adopts many of the principal arguments of congressional opponents of contempt. It begins with the observation that Congress’s powers are “dependent solely on the Constitution,” “either expressly or by fair implication.” 103 U.S. at 182. As no express power to punish contempts is granted, “advocates of this power have, therefore, resorted to an implication of its existence founded on two principal arguments . . . (1) its exercise by the House of Commons of England, from which country we, it is said, have derived our system of parliamentary law, and (2) the necessity of such a power to enable the two Houses of Congress to perform the duties and exercise the power the Constitution has conferred on them.” Id. at 182-83. Continue reading “Kilbourn and Chapman and Rao. Oh my.”

Colonel Anderson’s Contempt

To continue our discussion of Congress’s contempt power (sometimes referred to as the inherent contempt power), let us examine the first case in which the U.S. Supreme Court had occasion to consider the existence and scope of this power. The case arose from an attempt by Colonel John Anderson, who had numerous claims pending against the federal government, to bribe Representative Lewis Williams of North Carolina, the chairman of the Committee on Claims. See Donald G. Morgan, Congress and the Constitution: A Study of Responsibility 102 (1966). When this came to the House’s attention in early 1818, it was understandably enraged and unanimously authorized the Speaker (Henry Clay) to issue a warrant for Colonel Anderson’s arrest. 31 Annals of Congress 581.

The Congressional Debate

After the Sergeant-at-Arms took Anderson into custody, the House proceeded to spend more than a week debating whether it had the power to punish him. The House “retraced the excellent arguments” made in the prior Randall/Whitney and Aurora contempts (see here for details) but, according to Professor Currie, “added little of importance.” David P. Currie, The Constitution in Congress, The Jeffersonians, 1801-1829 315 n. 214 (2001). Be that as it may, Professor Morgan praises the House for conducting a high quality legal argument that “not only provided a guidepost to the Court” but educated its own members and the public on the relevant constitutional principles. Morgan, Congress and the Constitution 119.

The debate was long and often repetitive (or, as one member remarked, “tedious”). It did, however, cover all the key arguments that would subsequently be addressed by the Supreme Court and did so more thoroughly than the Court would. Morgan summarizes the “anti-contempt” side of the argument as taking “the strict constructionist line in the interest of individual liberty, state reserved powers, and an exclusive judicial cognizance of contempts.” Morgan, Congress and the Constitution 104. The major points of this side included: (1) the framers were well acquainted with the undefined and encroaching nature of parliamentary privilege in Britain; (2) by carefully enumerating certain privileges in the Constitution, they evinced an intent to exclude others historically claimed by Parliament or the state legislatures; (3) recognizing unenumerated privileges would be inconsistent with the limited nature of congressional power under a written constitution, separation of powers principles (which prohibit Congress from exercising judicial powers), and specific constitutional protections of individual liberties; and (4) once unenumerated privileges are recognized, there is no logical stopping point in terms of the House’s authority to define the scope of contempt/breach of privilege or to impose punishment therefor.

On the other side, the “[s]upporters of the power relied on broad construction, congressional precedents, and practical necessities.” Morgan, Congress and the Constitution 104. Typically, they acknowledged that British parliamentary privileges were not inherited by Congress in any direct sense. However, they also denied that British practices were simply a product of unique historical circumstances or a feature of the unlimited sovereignty enjoyed by Parliament. Instead, they contended that the precedents of Parliament, as well as of the colonial and state legislatures, were evidence that the power to punish for contempt was an inherent and necessary attribute of any legislative  body.

A critical aspect of the debate was the concession by most (though not all) of those on the “anti-contempt” side that the House could punish nonmembers for contempts committed within the walls of the House. Seizing on this concession, their opponents pointed out, somewhat ad nauseam, that they had undermined their own enumeration argument. If the House had some unenumerated power to punish contempt, why should that power not extend to Anderson’s flagrant attempt to corrupt the institution? No good answer to this question was offered. (As we shall see, this point would also play a key role in the Supreme Court’s decision).

Another major point of contention was the “anti-contempt” side’s claim that contempt was an inherently judicial power. In response, it was pointed out that “[b]oth Houses of Congress have powers strictly judicial in their nature and application.” 31 Annals of Congress 638 (Rep. Mercer); see also id. at 697 (Rep. Smyth points out the House is a court “with authority to try certain causes”). As noted in my last post, impeachment was offered as a prime example of a judicial process for which the House needed the contempt power. See also 31 Annals of Congress 701-02 (Rep. Settle). In particular, it was noted that the House needed a power of punishment independent of the executive, which might be the source of corruption it was trying to investigate in the first place. Id. at 634 (Rep. Tucker). Again, the “anti-contempt” camp seemed to have no rejoinder to this argument.

There was also some discussion of what punishments could be inflicted for contempt (with opponents of contempt suggesting they might include indefinite detention, corporal punishment, or worse). Supporters of contempt asserted because the power was one of self-protection, punishment was limited to imprisonment while the House was in session. 31 Annals of Congress 691 (Rep. McLane); id. at 703 (Rep. Settle). No one directly stated that the House had the power to fine, but there were occasional approving references to the fact that courts could impose fines for contempt. See, e.g., id. at 697 (Rep. Smyth). And one contempt opponent accused supporters of wanting to authorize the House “to fine and imprison at discretion.” Id. at 760 (Rep. Beecher).

At the end of the lengthy debate, the House rejected the arguments against recognizing the contempt power. 31 Annals of Congress 776. Anderson was tried and found guilty of contempt. Id. at 789. He was then brought to the bar of the House, reprimanded by the Speaker, and discharged from custody. Id. at 789-90. Continue reading “Colonel Anderson’s Contempt”

Representative Forsyth on Impeachment and the Contempt Power

As part of my series on impeachment and the contempt power, I have been reading the 1818 House debate on the contempt proceeding against Colonel John Anderson. I will have more to say on this subject presently, but today I want to flag an argument made by Representative Forsyth, who was one of the leading figures in the debate. The question before the House was whether it possessed the power to punish Anderson, who had attempted to bribe a member of the House. Forsyth argued strongly that the House did indeed possess this power.

In citing these remarks, it is important to emphasize that Anderson’s case had nothing whatsoever to do with impeachment or with any alleged misconduct by the president or any executive branch officer. Rather, Forsyth discusses impeachment (as did several others on his side of the argument) as evidence that the Constitution necessarily contemplated that the House could exercise the contempt power:

Judging that the time might arrive when a President would conspire with corrupt and ambitious men, of his own country or of a foreign nation, to change his temporary and limited authority to a permanent and despotic power, [the framers] supposed a sufficient barrier was erected to defeat such conspiracy, by giving to this House the power of impeachment, and the Senate the authority to judge and punish the offender, when brought to the bar by the charges of the people, and convicted by proper evidence. Has it not occurred to the members of this House, especially those [who argued the House lacked the power to punish for contempt], that the efficacy of this provision resides wholly in the power of the House and Senate, respectively, to issue process of attachment for contempt?

31 Annals of Congress 745 (emphasis added). Again, Forsyth is advancing a hypothetical that illustrates most clearly, in his view, that the House may punish for contempt. He continues:

A President forms treasonable designs against the United States. By one those fortunate events which, in the order of Providence, usually occurs to defeat the machinations of guilt, a partial discovery of the design is made, and an inquiry is instituted; you ascertain the sources from which which accurate and certain information is to be procured. How are you to compel the production of the treasonable correspondence in their custody? By attachment for contempt.

Id. (emphasis added). Forsyth had a vivid imagination, did he not?

But he doesn’t stop there. He anticipates the argument that a law could be passed making it a crime to withhold information from Congress (as it would be about 40 years later). Such a law would be inadequate:

Sir, it is vain to say we can provide by law for such an occurrence. Such provision is impossible. You make laws, but these laws are nugatory. You may provide penalties, but to inflict them must be judicial process, trial, conviction and sentence. The inevitable delay is ruinous to the country, and gives to the traitors the time to consummate their horrible designs. But even the guilty witness, the contemner of your authority, escapes the punishment provided by your law. The same Constitution under which you defined his offense, and annexed an appropriate punishment, gives to the President, for whom he commits it, the power of pardoning the offender. You have the consolation to know that he is convicted, and he has the consolation of laughing at an impotent branch of the Legislature, called, in derision, the Grand Inquest of the Nation!

Id. (emphasis added).

Note that Forsyth anticipated that a statutory contempt procedure would be inadequate because it would take too long and because the president would in any event pardon the guilty witness who was acting on his behalf. But he did not anticipate that the president could block prosecution in the first place.

Even Forsyth could not imagine the Office of Legal Counsel.

Must Congress Allow Agency Counsel to Attend Depositions?

Last week I wrote a piece for Just Security regarding the State Department’s refusal to produce certain officials for depositions requested by several House  committees (relating, of course, to the Ukraine affair). Among other things, I addressed the question of whether Congress is required to allow government counsel to attend depositions of the current or former officials of their department or agency. OLC (surprise!) says the answer is yes. In my view, the correct answer is no.

Anyway, I thought it would be helpful to collect the materials in one place. Here is the link to the piece. And here are the relevant House rules and regulations.

Is the Trump Administration Overwhelming the House Counsel’s Office?

One question that I keep getting from reporters relates to how fast (or slowly) the various court cases related to the House’s investigation of the president are moving. While these cases are moving at a reasonable clip for ordinary litigation, they are not proceeding fast enough to enable the House to obtain any of the desired information during this session and perhaps not fast enough to get the information by the end of the congress.

For example, one of the cases (I think it was the Judiciary Committee’s application for grand jury materials) was filed at the end of July or early August, and the parties agreed to a briefing schedule that went through September. This seemed to me a rather leisurely pace, given the House’s contention that it needed the information for the purpose of considering articles of impeachment. When I asked about this on Twitter, several folks offered the explanation that nobody is in DC in August.

Maybe. I wonder, though, whether part of the reason is simply that the House Counsel’s office does not have the bandwidth to handle all of these cases simultaneously. The office currently has nine lawyers, according to the website, which is  a lot more than it had when I was there (when we typically had four or five), not to mention more than can reasonably be accommodated in its existing space. It also is receiving some help (apparently on a pro bono basis) from outside lawyers.

Still, this is not a lot of firepower to deal with the volume of work that the office currently has. It is currently representing House committees in six cases involving congressional investigations into the administration (three initiated by the House, three by President Trump or the Trump administration). It has also been involved in a number of other significant cases this year, including litigation over the border wall, the census, and the Affordable Care Act. Presumably its lawyers are also involved in advising the leadership and committees on legal issues that seem to pop up on a daily basis (e.g., relating to the Ukraine whistleblower, the congressional subpoena to Rudy Giuliani, and efforts to depose State Department officials). All of which is on top of the House Counsel’s normal duties.

Which raises the question whether the Trump administration’s legal resources are simply overwhelming the House Counsel’s office. Trump’s  personal lawyers alone probably outnumber the House Counsel’s entire legal staff. And the executive branch has an essentially unlimited number of lawyers to work on these cases and issues. All of which raises the further question whether this is a deliberate strategy or something that they just lucked into?