Contempt of Congress: Process and Penalties

“Contempt” is a term used for disrespectful conduct during legal proceedings. You’ve maybe heard a judge in a courtroom drama tell a party they’ll be “held in contempt.” While contempt of court is far more common, we also have contempt of Congress. But what does it mean? And who can be found in contempt of Congress? Is it just for lawmakers?

In this article, we’ll explore this concept and the related legal processes. We’ll also take a deep dive into congressional subpoenas from which most contempt of Congress issues stem.

If you’ve received a subpoena from Congress or a state legislature or are otherwise facing contempt charges at any level, you’ll want to speak with a qualified litigation/appeals attorney. They can help you understand your options within a rather confusing legal landscape.

In the meantime, let’s review some of the basics.

What Is Contempt of Congress?

Contempt of Congress is a legal term for the act(s) of someone disobeying or disrespecting the authority of Congress.

Congress is the legislative branch of the federal government. It is responsible for representing the American people by making laws and overseeing the executive branch. It consists of the Senate and the House of Representatives.

Both houses of Congress use committees and subcommittees to divide work. This allows members to hold hearings, review legislation, and conduct congressional investigations efficiently within specialized areas.

If someone’s actions interfere with, obstruct, or disrespect Congress’s authority, they may be held in contempt of Congress.

These actions might include:

• Disruption of proceedings
• Attempts at bribing/intimidating members of Congress
• Unauthorized publication of confidential congressional materials

The most common cause for contempt of Congress is when someone fails to comply with a congressional subpoena.

What Is a Congressional Subpoena?

A congressional subpoena is a formal, legally binding order usually issued by a congressional committee or subcommittee. It may require a person or organization to provide testimony, documents, or communications.

Whatever the subpoena compels, it must serve a legitimate legislative purpose. This means it must relate to a valid congressional function such as lawmaking, oversight, or investigation of matters within its constitutional authority.

Must Someone Comply With a Congressional Subpoena ?

Yes. If a congressional subpoena serves a valid legislative purpose, a party must generally comply with it.

In McGrain v. Daugherty(1927), the U.S. Supreme Court established that Congress has the constitutional authority to issue subpoenas and compel testimony as part of its legislative function. The Court also affirmed that parties are legally obligated to comply with them unless they have a valid legal reason not to.

This might include:

• Privilege: Executive privilege, attorney-client privilege, spousal privilege
• Fifth Amendment: Constitutional right against self-incrimination
• Invalid subpoena: Lack of legislative purpose, too broad, unduly burdensome

Absent a valid reason, noncompliance can result in serious legal consequences.

What Happens If Someone Fails To Comply With a Congressional Subpoena?

Congress has three main contempt resolution methods: criminal, civil, and inherent. It can use them to respond if someone refuses to comply with a subpoena. It may also use them for contempt acts that otherwise obstruct Congress’ legislative function.

Criminal Contempt of Congress

The first option is for Congress to recommend criminal charges under a federal contempt statute.

This requires the full House or Senate to hold contempt proceedings. If either house decides by a majority vote to hold the person in contempt, it issues a contempt citation. The case then goes to the U.S. Attorney for the District of Columbia, who’s a member of the Department of Justice (DOJ).

The citation itself has no legal consequences unless the DOJ decides to prosecute. The DOJ is part of the executive branch, and it rarely prosecutes these referrals.

In 2014, the Republican-led House held Internal Revenue Service (IRS) official Lois Lerner in contempt of Congress. Lerner had refused to testify before a House committee about the agency’s targeting of conservative political groups. After she invoked her Fifth Amendment rights, the DOJ declined to prosecute her.

DOJ Prosecution

In matters where the DOJ decides to prosecute, it first presents the case to a grand jury. If the grand jury finds enough evidence for criminal prosecution under federal law, the DOJ will pursue the matter in federal district court.

A contempt of Congress conviction is a misdemeanor. It carries penalties of up to one year in jail and fines up to $100,000.

Steve Bannon

President Donald Trump’s former adviser, Steve Bannon, refused to comply with congressional subpoenas in 2021. They were from the House Select Committee to Investigate the January 6th Attack on the United States Capitol. The House found Bannon in contempt, and the DOJ prosecuted him.

He was convicted of contempt in district court. The appellate court affirmed the lower court’s decision, and the Supreme Court rejected his appeal. Bannon served four months in jail and had to pay $6,500 in fines. This option is generally used when the goal is to punish or make an example out of someone.

Civil Contempt of Congress

Alternatively, Congress may try to compel cooperation through civil enforcement. We don’t generally see this method used for non-subpoena related contempt of Congress.

This civil action means the House or Senate can request a federal court judge to order the subpoenaed party’s compliance.

If the party refuses to comply with the court order, the judge can hold them in civil contempt of court. This involves coercive sanctions like daily fines and/or incarceration until they comply. If they continue to refuse, the court can extend the sanctions as long as they remain coercive and not punitive.

Congress may use both criminal and civil contempt resolution methods for the same matter, but not at the same time.

Inherent Contempt Power

Congress has the inherent contempt power to enforce its own subpoenas without relying on the courts or the executive branch. Either chamber can exercise this legislative power by directing their Sergeant-at-Arms to arrest or detain the person. The individual may be brought before the chamber for a hearing and held until they comply or the session ends.

Marshall vs. Gordon (1917)

In the landmark Marshall v. Gordoncase, Congress tried to exercise this power by arresting Edward Marshall, a federal prosecutor for New York. Marshall had written a letter critical of a House subcommittee and sent it to the press and the subcommittee. The Supreme Court ruled that Congress exceeded its authority. It clarified that this inherent contempt power of Congress extends only to actions that obstruct its legislative function. It doesn’t give Congress authority over private citizens for speech-related offenses.

Congress has not used this power since 1934. Amidst frustration with the inadequacy of other enforcement mechanisms, lawmakers have since urged for its revival.

Recent Revival Attempts

In 2019, the House launched an investigation into President Trump’s dealings with Ukraine as part of a formal impeachment inquiry. Mick Mulvaney, the acting Chief of Staff for the White House at the time, refused to comply with a related congressional subpoena. Democratic lawmakers and analysts urged Congress to invoke its inherent contempt power to compel Mulvaney and others to testify, albeit unsuccessfully.

The House did attempt to use it in 2024 against the United States Attorney General Merrick Garland. The House Judiciary Committee and the House Oversight and Accountability Committee jointly subpoenaed Garland for some audio recordings. When he refused to comply, House members proposed invoking and formalizing Congress’ inherent contempt power. The measure failed to pass in the House.

Although Congress has the legislative authority to use this power, it remains politically dormant for now.

Get Qualified Help

Contempt of Congress persists as a relevant tool marked by enforcement challenges. If you’re dealing with a subpoena from Congress or the state legislature, take it seriously. You have rights and options, so consider speaking with an experienced administrative or litigation/appeals attorney who can help you separate your obligations from the bluster. They can also help you understand the challenges you may be able to assert.

FindLaw’s directory of litigation/appeals attorneys is a solid place to start. For ratings, experience, and other information about local experts in your area, click on your state, then city. Take matters into your own hands and enlist the help of a trusted legal advisor. An advocate just may be your most important ally as you figure out your next steps.