My prior post covered the facts of H. Snowden Marshall’s contempt case. Today we will address the legal issues.
The District Court Decision
The case was heard initially by Judge Learned Hand, who rejected Marshall’s challenge to the contempt proceedings. Judge Hand’s opinion summarizes the state of the law of contempt at that time. See United States ex rel. Marshall v. Gordon, 235 F. 422 (S.D.N.Y. 1916). In Hand’s view, the case presented three issues: (1) was the House engaged upon a “constitutional duty;” (2) did the House have a power of contempt in connection with that constitutional duty; and (3) did that power extend beyond testimonial compulsion to reach the type of dignitary harms of which Marshall was accused. Id. at 429.
The first question was easy, according to Judge Hand. See id. (“That the House was in fact engaged in a constitutional inquiry admits of no doubt.”). The House resolution directing the judiciary committee to investigate Marshall “was aimed at [his] impeachment,” and “the subcommittee was charged with duties ancillary to that inquiry.” Id. Thus, the House was engaged in the constitutional duty of impeachment (a proposition that seems to have been basically uncontested).
The second question was also straightforward given the answer to the first. Kilbourn had left “no question” that the House had a contempt power when it was engaged in an impeachment inquiry. Id.
The third question was the most difficult. Marshall argued that, notwithstanding dicta in Kilbourn and other cases, the House’s function in impeachment was not truly judicial and therefore it was not entitled to exercise the same powers as a court. He argued that the House’s function in impeachment was more akin to that of a grand jury or a prosecutor than a court. Id.
Judge Hand disagreed on the first part of this argument, calling it “too clear for question” that the House’s function in impeachment is judicial in nature. Id. However, he acknowledged that it was a closer issue whether the House should have “the powers of a court whenever it acts judicially.” Id. Ultimately, though, he concluded that “there is both reason and precedent for the position that the House, while deliberating upon articles of impeachment, has jurisdiction to determine whether a publication is a contumacious assault upon its freedom of action. Id. at 432.
Once it was determined that the matter fell within the House’s jurisdiction, the court’s role was at an end. The court had no power to review the merits of the House’s decision that Marshall’s letter should be treated as a contempt. Hand acknowledged that this created the potential for abuse, but opined that this potential was no greater for the House than for a court or any other government official entrusted with such power. The House’s power, moreover, was limited to the period during which an impeachment proceeding was pending. Id.
Accordingly, the district court ruled for the House. Marshall then appealed to the Supreme Court, which took a different view of the matter.
The Supreme Court Decision
The Court began, as anti-contempt approaches tend to, by sharply distinguishing between Parliament and Congress with respect to the exercise of the contempt power, emphasizing the former’s power to punish contempt rested on a “blending of legislative and judicial authority” which it would be “unthinkable” to find by implication in the U.S. Constitution. Marshall v. Gordon, 243 U.S. 521, 533, 536 (1917). Interestingly, the Court supported its conclusion in part by pointing to early state constitutional provisions like that of Massachusetts, which expressly provided for the exercise of limited contempt power largely focused on acts occurring in the legislature’s presence or physical disruption of its proceedings. These provisions show, the Court maintained, that the predominant if not universal view was that the contempt power should be limited to acts of such character as would result in the “destruction of legislative power” should the legislature not have the power to punish them directly. 243 U.S. at 535-36.
Since the Constitution lacked any express provision on punishment of nonmembers, the Court viewed these state constitutional provisions as a kind of outside limit on what could be read as implied in that document. The Constitution’s “golden silence” on the subject was evidence that the framers wanted to limit the contempt power only to those necessary for self-preservation, that is, “to prevent acts which in and of themselves inherently obstruct or prevent the discharge of legislative duty or, the refusal to do that which there is an inherent legislative power to compel in order that legislative functions may be performed. 243 U.S. at 542, 547. (Had the Court been aware of the Philadelphia Convention’s rejection of the Pinckney proposal, which was modeled on but broader than the Massachusetts provision, it likely would have found the proposal’s failure further evidence of its restrictive approach to the contempt power).
The Court took pains to distinguish between “the limited implied power to deal with classes of acts as contempts for self-preservation and the comprehensive legislative power to provide by law for punishment for wrongful acts.” 243 U.S. at 546. The former “does not embrace punishment as punishment;” that is why it cannot impose penalties for past misconduct, but only exercise the least possible power adequate to protect the legislature from the act in question. Id. at 541-42. This means that only imprisonment can be used and such imprisonment can last only as long as is necessary to address the danger (e.g., in the case of a contumacious witness, until the witness agrees to provide the information or the session ends, whichever comes first). Id. at 541-42, 544.
With regard to judicial review of the contempt power, the Court makes clear that the House is not the judge of its own privileges. It is for the judiciary to determine whether the act in question falls within the class of acts to which the limited contempt power applies. However, if the act falls within that class, Congress enjoys substantial discretion to determine “how far from the nature and character of the act there is necessity for repression to prevent immediate recurrence,” and the exercise of this discretion will not be subject to judicial interference unless it amounts to “an absolute disregard of discretion and a mere exertion of arbitrary power.” Id. at 545.
Turning to Marshall’s contempt, the Court had little difficulty in concluding that it was outside the class of acts for which the limited contempt power could be applied. While Marshall’s letter contained “irritating and ill-tempered statements” which might cast the House in a negative light, harm its standing in the public mind or arouse understandable indignation among members, it was not of a nature to impede the House’s functions or threaten its existence. 243 U.S. at 545-46.
Finally, the Court rejected the argument that the “general rule” on contempt was “here not applicable because the House was considering and its committee contemplating impeachment proceedings.” 243 U.S. at 547. The Court dismisses this with the conclusory assertion that “the premise upon which it rests is unfounded.” Id. Presumably this means the Court did not believe the investigation of Marshall was (yet) an impeachment proceeding, although both parties seemed to agree that it was. See id. at 525, 529.
In any event, the Court stated, it would not make any difference to the outcome even if the House were conducting impeachment proceedings. Id. Presumably this is because (the Court gives little explanation here either) Marshall’s letter constituted no direct threat to the House proceeding, whether or not it constituted an impeachment inquiry. The Court also suggested that if Marshall’s contempt were treated as ancillary to a judicial proceeding, it could not constitutionally be conducted in the summary manner of legislative contempts. See id. at 547-48.
The Court therefore reversed Judge Hand’s decision and remanded the case with instructions that Marshall be discharged from custody (which he was not actually in).
The Significance of Marshall
The Marshall decision appears to accept that the implied contempt power can be used to compel the testimony of recalcitrant witnesses. However, its clear preference for dealing with contempt through the legislative power (i.e., through ordinary criminal prosecution as occurred in Chapman) might have suggested a willingness to limit the exercise of the contempt power for such purposes to cases expressly approved in Kilbourn, i.e., impeachment and other matters falling within the category 1 judicial power. After all, given the availability of criminal prosecution as an alternative, it could be argued that the inherent contempt power was not truly “necessary” for recalcitrant witnesses.
Nonetheless, the reasoning of Marshall does not support a blanket refusal to recognize Congress’s contempt power with respect to witnesses. Criminal prosecution is not adequate to protect the integrity of legislative proceedings when the executive, as the result of declared policy, practice, or conflict of interest, cannot be relied on to prosecute those who defy congressional demands for information. Under these circumstances, which certainly obtain in all presidential impeachments, direct contempt is the only means to protect the integrity of congressional proceedings.
Thus, even Marshall, the most strictly Madisonian (verging on the Pinckneyish) of all Supreme Court cases on contempt, is consistent with recognizing congressional power to hold recalcitrant witnesses in contempt. In any event, any contrary reading of Marshall would be repudiated by later cases, particularly McGrain v. Daugherty, 273 U.S. 135 (1927) (to which we will turn in a future post).
There are, however, a couple of other potential implications of Marshall worth considering:
Fines. Neither Marshall nor any other case has directly addressed the constitutionality of legislative fines for contempt for the simple reason that Congress has never attempted to impose one. Marshall, however, explains that Congress may not impose “punishment for contempt as punishment.” 243 U.S. at 542. This means that fines cannot be imposed as a penalty for past misbehavior, but (at most) as a coercive measure to compel compliance with the legislative demand. Whether a monetary fine is punitive or coercive is a difficult judgment that will depend on the circumstances of each contempt. The courts may doubt that Congress has the capacity to make such tailored judgments, which could be one reason that Marshall cites Anderson‘s dictum that the contempt power is limited to imprisonment. See 243 U.S. at 542.
Executive contempts. As mentioned in my prior post, scholars disagree on the significance of Marshall with respect to whether and under what circumstances the contempt power may be used against executive officials. Professor Chafetz argues that it shows executive officials can be held in contempt, and he stresses that neither the House nor the Court appeared to have any qualms about this issue. Josh Chafetz, Executive Branch Contempt of Congress, U. Chi. L. Rev. 1083, 1138-39 (2009). Professor Peterson argues, on the other hand, that these facts are of little significance because Marshall “not only does not involve a claim of executive privilege, it does not involve a separation of powers dispute between Congress and the executive branch.” Todd David Peterson, Contempt of Congress V. Executive Privilege, 14 U. Pa. J. Const. L. 77, 130 (2011).
It is, however, not entirely accurate to say there was no separation of powers dispute involved in the Marshall case. This may be true from the House’s perspective, as it was investigating alleged misconduct that was personal to Marshall. See Comm. on the Judiciary, Alleged Official Misconduct of H. Snowden Marshall, H.R. Rep. No. 64-494 (Apr. 5, 1916).
Things looked different from Marshall’s perspective, however. He argued that the House was attempting to interfere with and impeded lawful investigations and grand jury proceedings. He claimed, moreover, (and I see no reason to doubt this was true) that the attorney general had demonstrated his support for Marshall’s position by directing him not to turn over grand jury information to the House. Indeed, it appears that Marshall originally intended to make the contempt litigation a test of separation of powers principles. See H. Snowden Marshall: Hearings Before the House Comm. on the Judiciary & Special Subcomm. Designated to Investigate Charges Against H. Snowden Marshall, United States District Attorney for the Southern District of New York under H. Res. 90, 664-65, 64th Cong. 2d sess. (1916).
Of course, these issues never made it to court and Professor Peterson is correct that Marshall cannot be considered judicial precedent on issues that were not raised or decided. But Marshall’s decision not to raise those issues is still worthy of note. After all, Peterson relies heavily on the absence of contempt proceedings to resolve executive privilege disputes to substantiate his argument that separation of powers principles prohibit such proceedings. See 14 U. Pa. J. Const. L. at 130-39. The fact that Marshall did not make this argument would seem to count as some evidence that he and/or his superiors in the administration viewed it as less than clear cut.