While Congress is given powers to investigate and subpoena
individuals and entities, it typically does not just arrest people for not
cooperating.
Instead, Congress can hold a person in contempt if their
actions are viewed as obstructing legislative business or a
congressional investigation.
Lawmakers have three routes:
- Inherent contempt: The Supreme Court has ruled that lawmakers have inherent contempt powers to have an individual held until the person "provides the testimony or documents sought, or until the end of the session," reads a 2017 report from the Congressional Research Service, Congress' policy research arm. Using this process is incredibly rare and hasn't been done in modern times, not since the 1930s.
- Criminal contempt: Congress also has the option to use its "criminal contempt" powers, a law that allows lawmakers to charge an individual with a crime. This is the process listed above with regard to Barr that's more common and would have to be passed through one of the chambers in Congress.
- Civil judgment: The third option is going through a civil process in the courts. Lawmakers can seek a civil judgment, asking a judge to enforce a subpoena.
The most common method used by Congress has been criminal
contempt; a charge is a misdemeanor and punishable by jail time
of between a month and a year and a fine.
But it's not as easy as simply charging someone. The
measure doesn't have to pass in both the House and Senate and can start in
committee, meaning in this case, Nadler could bring the issue before the House Judiciary
Committee.
After it passes with a simple majority, it would move
to a full vote in the House.
Once approved, the House speaker or the Senate president pro
tem then turns the matter over to the U.S. attorney for the District of
Columbia, "whose duty it shall be to bring the matter before the grand
jury for its action," according
to the law.
While Congress has broad investigative powers, there are
limits. The Supreme Court has said that congressional inquiries should have a
legitimate legislative purpose and should not be used for political purposes
to embarrass, expose wrongdoing or target a particular person or
group.
And holding someone in contempt of Congress has caveats and
drawbacks. Jailing someone until they testify or offer up documents might
seem like an easy solution but the CRS notes that
Congress is not allowed to hold someone past the "end of the
current session of Congress." The process could also likely end up
worsening tensions between each branch of government and give the public a
front-row seat to the chaos. Plus some, like Barr, have armed security and it's
unclear what would happen if Congress attempted to arrest him.
And while a civil claim could be the path of least
resistance, it could be time-consuming and delay an investigation. Even
criminal contempt has a catch: It's up to the Justice Department to actually
take up a criminal case against someone. In the past, the Justice Department
has declined to prosecute criminal contempt-of-Congress cases.
There's also the question of executive privilege, which
President Trump said was being considered to block his current and
former aides from testifying before lawmakers.
It isn't clear whether Congress' contempt powers could
trump the president invoking executive privilege as neither the White
House nor Congress has sought a resolution to the question from the
Supreme Court, both sides fearing they might lose.
Congress would have a harder time investigating presidents
for decades to come if the high court ruled against it and if the White
House lost, it would open the door for a multitude of congressional inquiries.
Congress rarely holds people in contempt. But it has done so
in the past to force witnesses to appear or produce documents.
The last time Congress used its inherent contempt powers was
in 1934 when the Senate held William MacCracken, a former member of
Herbert Hoover's administration, after he refused a subpoena. The
Senate had nowhere to hold MacCracken so he was imprisoned at a hotel,
according to the Washington Post.
But Congress has voted on contempt charges more recently,
even discussing using it against members of the Trump administration last year
after former White House adviser Steve Bannon refused to answer questions.
Other examples include in 2012 when the House voted to hold then-Attorney
General Eric Holder in contempt for declining to provide documents and in 2014 after IRS official Lois Lerner invoked her Fifth
Amendment right against self-incrimination during a congressional hearing. In
both cases, the Justice Department declined to bring criminal cases.
While a contempt charge normally moves through the criminal
justice system and the courts, there's one final method that has gotten attention in recent days, given the president's
reluctance to cooperate with congressional investigations.
Lawmakers can elect to pursue a contempt-of-Congress charge
in an impeachment proceeding, which is a political process to remove the
president from office that moves through Congress instead of the courts.
A contempt-of-Congress charge was one of the three
articles of impeachment filed against President Richard Nixon in 1974 after he
defied subpoenas for documents and information that Congress said it needed for
an impeachment inquiry.
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