Contempt of Congress: Process and Penalties

In 1982, at the direction of then-President Ronald Reagan, Environmental Protection Agency (EPA) Administrator Anne Gorsuch refused to relinquish documents to the U.S. House of Representatives in connection with an investigation. Since the documents were the subject of a House committee subpoena, her refusal prompted legislators to take punitive action. Ultimately, the House voted to cite her with contempt of Congress.

If prosecuted, Congress's contempt citation eventually could have landed her in jail, but the White House rescinded its claim of executive privilege and the EPA eventually released the documents. Gorsuch, the first U.S. agency director to be charged with contempt of Congress, resigned her post several months later.

The term contempt typically refers to an individual's open disrespect of the authority of a court, such as the refusal to comply with a court order or the disruption of court proceedings. Here we focus on contempt of Congress, its source in federal law, how this power is enforced, the process, potential penalties, and more.

Congress, Contempt, and Federal Law: Overview

The Constitution grants Congress certain broad powers, but is silent on its subpoena power. However, the U.S. Supreme Court clarified Congress's power to issue subpoenas in a 1917 case (Marshall v. Gordon), stating that "in virtue of the grant of legislative authority there [was] a power implied to deal with contempt." Essentially, the Court held that the Constitution's text implies a power to investigate given its power to legislate. Therefore, refusal to cooperate with a congressional investigation directly challenges this authority and may be punishable as contempt.

Either chamber of Congress may start the process in a committee (such as the House Judiciary Committee) and may rely on the legislative counsel's office like the Office of Senate Legal Counsel for help drafting a contempt resolution. Once the resolution is drafted and voted out of committee, it then goes to the full House or Senate (depending on where it originates) for a simple majority vote. Participation of the other chamber of Congress isn't required. If the resolution passes, the individual is formally cited for contempt.

After securing a citation, there are three avenues for Congress to enforce its resolution and ultimately seek a resolution:

1. Criminal contempt;
2. Civil contempt; and
3. Congress's inherent contempt powers.

Criminal Contempt of Congress

The authority of Congress to cite an individual with criminal contempt is found in Title 2, Section 192 of the U.S. Code. It states that anyone summoned by either house of Congress "to give testimony or to produce papers" regarding any matter of inquiry who "willfully makes default" or "refuses to answer any questions pertinent to the question under inquiry" has committed contempt of Congress.

Penalties for violations (a misdemeanor) include a fine of up to $100,000 and a jail term of one to 12 months, which requires prosecution by the Department of Justice (DOJ) or the U.S. Attorney's Office for the District of Columbia. This means a contempt citation may be a purely symbolic gesture if the DOJ or U.S. Attorney decides not to prosecute. In the case of EPA Administrator Gorsuch, President Reagan -- head of the executive branch -- had declared those documents off limits due to executive privilege.

Congress Contempt Charges: Civil

If the DOJ or U.S. Attorney's Office refuses to prosecute a case where an individual has been cited for contempt of Congress, lawmakers may pursue a civil suit in federal court. Generally, these actions claim that the members of Congress requesting testimony or documents were denied the ability to exercise their constitutional duties. The court then decides whether the individual cited for contempt of Congress must comply with the congressional subpoena.

The relevant statute (Title 2, Section 288 of the U.S. Code) specifically gives the Senate the power to bring a lawsuit for contempt of Congress. However, federal courts have held that this also applies to House committees seeking enforcement of subpoenas.

Inherent Contempt Power of Congress

The third, and least exercised, option is referred to as the inherent contempt power of Congress. This isn't found in statutory or constitutional language but rather is inferred by the courts as a function of Congress's legislative powers. The last time this was exercised was in the 1930s, but this was seen more as a way to coerce compliance than as a means of punishment.

The offender, after being cited for contempt of Congress, is tried on the floor of the chamber of Congress invoking the power. If a majority affirms the contempt charge, they may instruct the Sergeant at Arms to arrest the offender and detain them until they comply with the subpoena or until the end of the session. Given the extraordinary nature of congressional detention and its lack of constitutional clarity, it's often seen as a last-ditch -- and unlikely-- effort.

More Questions About Contempt Laws? Get Professional Legal Help Today

Contempt of Congress citations are quite rare, although criminal and civil contempt charges are relatively common throughout the justice system. Whether you're challenging a subpoena, need help appealing a case, or have specific questions pertaining to a matter of litigation, legal counsel can be invaluable. Get started today and contact an experienced litigation and appeals attorney near you.