Contempt of Congress and the Separation of Powers

Kevin Kosar at LegBranch:

Congress’ contempt problem, in short, is a separation of powers one. Once the House votes affirmatively, the process moves to another branch of government. If the House seeks a criminal prosecution, it refers the matter to the Department of Justice — yes, the same Department of Justice that Barr heads. When Congress held an Environmental Protection Agency administrator in contempt of Congress in the 1980s, DOJ’s Office of Legal Counsel declared it was not obligated to present the matter before a grand jury. In short, game over, Congress.

The House of Representatives could also attempt to enforce the resolution via civil suit. This avoids the bother of having to rely on DOJ but requires help from the third branch, which tends to take a very long time to reach a decision. When Congress pursued two contempt cases during the George W. Bush Administration, the legal wrangling took two years. No verdict was rendered, as Congress and the executive branch cut a deal to settle the matter. Seven years later, the Holder contempt proceeding has still not concluded.

Congress could use its inherent contempt authority to escape this intra-branch conundrum. The House would order the chamber’s sergeant-at-arms to arrest an individual charged with contempt. Afterward, the charges would be presented, a trial would be scheduled and then a vote to decide guilt would take place. Punishment in the form of fines could be meted out. This sort of proceeding has not been attempted in decades, not least because it consumes a ton of the House’s valuable floor time. And using inherent contempt against an administration official like an attorney general is exceedingly high-stakes — what if the sergeant-at-arms is rebuffed by DOJ’s police?

Like so many aspects of the First Branch, its contempt power is broken. Fixing it would require updating the ancient, mothballed inherent contempt processes to ensure that the proceedings are fair and expeditious.