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Early history of Congressional contempt.

July 24, 2007

While the contempt power was exercised both by the English Parliament (20) and by the American colonial assemblies, (21) Congress's first assertion of its contempt authority occurred in 1795, shortly after the ratification of the Constitution. At the time, three Members of the House of Representatives reported that they had been offered what they interpreted to be a bribe by men named Robert Randall and Charles Whitney. (22) The House of Representatives interpreted these allegations as sufficient evidence of an attempt to corrupt its proceedings and reported a resolution ordering their arrest and detention by the Sergeant-at-Arms, pending further action by the House. (23) The matter was then referred to a special Committee on Privileges which reported out a resolution recommending that formal proceedings be instituted against Messrs. Randall and Whitney at the bar of the House. (24) In addition, the resolution provided that the accused be questioned by written interrogatories submitted by the Speaker of the House with both the questions and the answers entered into the House minutes. (25) The resolution also provided that individual Members could submit written questions to the accused. (26)

Upon adopting the resolution and after considerable debate, the House determined that the following procedures be adhered to: First, the complaining Members were to submit a written signed information to the accused and for publication in the House Journal. In addition, the accused were to be provided counsel, the right to call witnesses on their behalf, the right to cross-examination of the complaining Members through written questions submitted to the Speaker, and adequate time to prepare a defense. (27) A proceeding was held at the bar of the House, and on January 4, 1796, the House, by a vote of 78-17, adopted a resolution finding Mr. Randall guilty of "a contempt to, and a breach of the privileges of, this House by attempting to corrupt the integrity of its Members in the manner laid to his charge." (28) The House ordered Mr. Randall to be brought to the bar, reprimanded by the Speaker, and held in custody until further resolution of the House. (29) Mr. Randall was detained until January 13, 1796, when he was discharged by House resolution. Mr. Whitney, on the other hand, was absolved of any wrongdoing as the House determined that his actions were against a "member-elect," and had taken place "away from the seat of government." (30)

Of additional significance is the fact that the records indicate that almost no question was raised with respect to the power of Congress to punish a non-Member for contempt. According to one commentator, who noted that many of the Members of the early Congress were also members of the Constitutional Convention and, thus, fully aware of the legislative practices of the time, it was "substantially agreed that the grant of the legislative power to Congress carried with it by implication the power to punish for contempt." (31)

Four years later, the Senate exercised its contempt power against William Duane, who, as editor of the Aurora newspaper, was charged with the publication of a libelous article concerning the Senate and one of its committees. Mr. Duane was ordered by Senate resolution to appear before the bar of the Senate and "make any proper defense for his conduct in publishing the aforesaid false, defamatory, scandalous, and malicious assertions and pretended information." (32) At his initial appearance before the Senate, Mr. Duane requested, and was granted, the assistance of counsel and ordered to appear again two days later. (33) Instead of appearing before the Senate as ordered, Mr. Duane submitted a letter indicating he did not believe he could receive a fair trial before the Senate. (34) Mr. Duane was subsequently held in contempt of the Senate for his failure to appear, not for his alleged libelous and defamatory publications. (35) As a result, he was held in the custody of the Senate for several weeks before the Senate, by resolution, instructed that he be released and tried by the courts. (36)

The Senate's contempt of Mr. Duane generated considerably more debate concerning Congress's contempt authority. A majority of Senators argued that the Senate's contempt power was an inherent right of legislative bodies, derived not specifically from the Constitution, but rather from "the principle of self-preservation, which results to every public body from necessity and from the nature of the case." (37) Moreover, Senators supportive of this position argued that their reasoning was firmly supported by English and colonial practices, as well as the practice of the state legislatures. Finally, the majority asserted that if Congress did not possess a contempt power it would be vulnerable to the disruption of its proceedings by outside intruders. (38)

While the Senate's exercise of its contempt power was not without precedent, many Senators disputed these claims, arguing that all powers sought to be exercised by Congress must be specifically derived from the Constitution; that because the contempt power is not among the enumerated powers given to Congress, the power is reserved to the states and the people. In addition, the minority argued that Congress, unlike the English Parliament or state legislatures, was intentionally not granted the plenary powers of sovereignty by the Constitution and, thus, could not claim any inherent right to self-preservation. (39) As an alternative, the minority proposed that Congress, which has the power to "make all laws which shall be necessary and proper for carrying into execution the foregoing powers" (40) had sufficient authority to enact a statute that would protect the integrity of its proceedings. (41) Moreover, the minority argued that disruptions of congressional proceedings would continue to be subject to the criminal laws. (42)

After Mr. Duane's contempt by the Senate, it appeared that the subject of the Congress's inherent contempt power was settled. The authority, however, was not used again for another 12 years. In 1812, the House issued a contempt resolution against Mr. Nathaniel Rounsavell, who had refused to answer a select committee's questions concerning which Representative had given him information regarding secret sessions. (43) However, before Mr. Rounsavell was brought before the bar of the House a Member admitted his indiscretion and the matter was not pursued. (44) Congress's inherent contempt power was not used again until 1818, where it eventually made its way to the Supreme Court for adjudication.

Anderson v. Dunn. In 1821, the Supreme Court was faced with interpreting the scope of Congress's contempt power. (45) The case arose when Representative Louis Williams of North Carolina introduced a letter before the House from a John Anderson, which Representative Williams interpreted as an attempt to bribe him. (46) Following its 1795 precedent, the House adopted a resolution ordering the Sergeant-at-Arms to arrest Mr. Anderson bring him before the bar of the House. Upon Mr. Anderson's arrest, however, a debate erupted on the floor of the House as the motion for referral to the Committee on Privileges to adopt procedures was considered. Several Members objected to the House's assertion of an inherent contempt power. They argued, as the minority Senators had in Mr. Duane's contempt, that neither the Constitution nor the general laws afforded the Congress such an inherent power to punish for actions that occurred elsewhere. (47) Relying on the 1795 precedent and examples from the British Parliament and state legislatures, the Committee was formed and it adopted a resolution requiring Mr. Anderson to be brought before the bar of the House for questioning by the Speaker. (48) At his appearance, Mr. Anderson, like Mr. Randall and Mr. Whitney before him, was afforded counsel and permitted to present the testimony of eleven witnesses. Ultimately, Mr. Anderson was found in contempt of Congress and was ordered to be reprimanded by the Speaker for the "outrage he committed" and discharged into the custody of the Sergeant-at-Arms. (49)

Mr. Anderson subsequently filed suit against Mr. Thomas Dunn, the Sergeant-at-Arms of the House, alleging assault, battery, and false imprisonment. Mr. Dunn responded by asserting that he was carrying out the lawful orders of the House of Representatives. The Supreme Court heard the case in February of 1821 and concluded that the Congress possessed the inherent authority to punish for contempt and dismissed the charges against Mr. Dunn. (50) The Court noted that while the Constitution does not explicitly grant either House of Congress the authority to punish for contempt, except in situations involving its own Members, such a power is necessary for Congress to protect itself. The Court asserted that if the House of Representatives did not possess the power of contempt it would "be exposed to every indignity and interruption, that rudeness, caprice, or even conspiracy, may meditate against it." (51)

The Court's decision in Anderson does not define the specific actions that would constitute contempt; rather, it adopted a deferential posture, noting that:
   it is only necessary to observe that there is nothing on the facts
   of the record from which it can appear on what evidence the warrant
   was issued and we do not presume that the House of Representatives
   would have issued it without fully establishing the facts charged
   on the individual. (52)


The Anderson decision indicates that Congress's contempt power is centered on those actions committed in its presence that obstruct its deliberative proceedings. The Court noted that Congress could supplement this power to punish for contempt committed in its presence by enacting a statute, which would prohibit "all other insults which there is any necessity for providing." (53)

The Court in Anderson also endorsed the existing parliamentary practice that the contemnor could not be held beyond the end of the legislative session. (54) According to the Court,
   [s]ince the existence of the power that imprisons is indispensable
   to its continuance, and although the legislative power continues
   perpetual, the legislative body ceases to exist, on the moment of
   its adjournment or periodical dissolution. It follows, that
   imprisonment must terminate with that adjournment. (55)


Since Anderson was decided there has been an unresolved question as to whether this rule would apply with equal force to a contempt by the Senate, since it is considered a "continuing body." (56) The Senate, it appears, has only addressed this issue once, in 1871, regarding the contempt of two recalcitrant witnesses, Z.L. White and H.J. Ramsdell. (57) During these contempt proceedings, the Senate found itself near the end of a session and the question arose as to whether the Senate's acquiescence to the Anderson rule would provide adequate punishment. After vigorous debate, the Senate instructed the Sergeant-at-Arms to release the prisoners immediately upon the final adjournment of the Congress. (58) The House, however, has imprisoned a contemnor for a period that extended beyond the adjournment of a Congress. Patrick Wood was sentenced by the House to a three-month term in jail for assaulting Representative Charles H. Porter. (59) Although there is no doubt that Mr. Woods's period of incarceration extended beyond the date of adjournment, it was not challenged and, therefore, there is no judicial opinion addressing the issue.

Kilbourn v. Thompson. In 1876, the House established a select committee to investigate the collapse of Jay Cooke & Company, a real estate pool in which the United States had suffered losses as a creditor. (60) The committee was, by resolution, given the power to subpoena both persons and records pursuant to its investigation. Acting under its authority, the committee issued a subpoena duces tecum to one Hallet Kilbourn, the manager of the real estate pool. When Mr. Kilbourn refused to produce certain papers or answer questions before the committee he was arrested and tried under the House's inherent contempt power. The House adjudged Mr. Kilbourn in contempt and ordered him detained by the Sergeant-at-Arms until he purged himself of contempt by releasing the requested documents and answering the committee's questions. (61)

Mr. Kilbourn filed a suit against the Speaker, the members of the committee, and the Sergeant-at-Arms for false arrest. The lower court held in favor of the defendant dismissing the suit. Mr. Kilbourn appealed, and the Supreme Court reversed, holding that Congress did not have a general power to punish for contempt. (62) While the Court appeared to recognize that Congress possessed an inherent contempt power, it declined to follow Anderson v. Dunn's expansive view of Congress's authority. Moreover, the Court rejected any reliance on the English and colonial precedents establishing the source and extent of Congress's contempt power. The Court stated that:
   [w]e are of opinion that the right of the House of Representatives
   to punish the citizen for a contempt of its authority or a breach
   of its privileges can derive no support from the precedents and
   practices of the two Houses of the English Parliament, nor from the
   adjudged cases in which the English courts have upheld these
   practices. Nor, taking what has fallen from the English judges, and
   especially the later cases on which we have just commented, is much
   aid given to the doctrine, that this power exists as one necessary
   to enable either House of Congress to exercise successfully their
   function of legislation. (63)


The Court held that the investigation into the real estate pool was not undertaken by the committee pursuant to one of Congress's constitutional responsibilities, but rather was an attempt to pry into the personal finances of private individuals, a subject that could not conceivably result in the enactment of valid legislation. According to the Court, because Congress was acting beyond its constitutional responsibilities, Mr. Kilbourn was not legally required to answer the questions asked of him. In short, the Court held that:
   no person can be punished for contumacy as a witness before either
   House, unless his testimony is required in a matter into which that
   House has jurisdiction to inquire, and we feel equally sure that
   neither of these bodies possesses the general power of making
   inquiry into the private affairs of the citizen. (64)


In addition, the Court indicated that the investigation violated the doctrine of separation of powers because judicial bankruptcy proceedings were pending relating to the collapse of the real estate pool and, therefore, it might be improper for Congress to conduct an investigation that could interfere with the judicial proceedings. (65) The Court specifically challenged Congress's assertion that there were no other viable remedies available to the government to retrieve the lost funds. (66) Thus, the Court concluded that:
   the resolution of the House of Representatives authorizing the
   investigation was in excess of the power conferred on that body by
   the Constitution; that the committee, therefore, had no lawful
   authority to require Kilbourn to testify as a witness beyond what
   he voluntarily chose to tell; that the orders and resolutions of
   the House, and the warrant of the speaker, under which Kilbourn was
   imprisoned, are, in like manner, void for want of jurisdiction in
   that body, and that his imprisonment was without any lawful
   authority. (67)


Finally, in dicta, the Court indicated that the contempt power might be upheld where Congress was acting pursuant to certain specific constitutional prerogatives, such as disciplining its Members, judging their elections, or conducting impeachment proceedings.

Although the precedential value of Kilbourn has been significantly limited by subsequent case law, the case continues to be cited for the proposition that the House has no power to probe into private affairs, such as the personal finances of an individual, on which legislation could not be enacted. The doubts raised by Kilbourn about the scope of Congress's contempt power have essentially been removed by later cases sanctioning the use of the power in investigations conducted pursuant to Congress's authority to discipline its Members, (68) to judge the elections of its Members, (69) and, most importantly, to probe the business and conduct of individuals to the extent that the matters are subject to congressional regulation. (70) For example, in McGrain v. Daugherty, which involved a Senate investigation into the claimed failure of the Attorney General to prosecute certain antitrust violations, a subpoena was issued to the brother of the Attorney General, Mallie Daugherty, the president of an Ohio bank. When Daugherty refused to comply, the Senate exercised its inherent contempt power and ordered its Sergeant-at-Arms to take him into custody. The grant of a writ of habeas corpus was appealed to the Supreme Court. The Court's opinion in the case considered the investigatory and contempt powers of Congress to be implicit in the grant of legislative power. (71) The Court distinguished Kilbourn, which was an investigation into purely personal affairs, from the instant case, which was a probe of the operation of the Department of Justice. According to the Court, the subject was plainly "one on which legislation could be had and would be materially aided by information the investigation was calculated to elicit." (72) The Court in McGrain was willing to presume that the investigation had been undertaken to assist the committee in its legislative efforts. (73)

Morton Rosenberg

Specialist in American Public Law

American Law Division

Todd B. Tatelman

Legislative Attorney

American Law Division

(20) MAY'S TREATISE ON THE LAW, PRIVILEGES, PROCEEDINGS AND USAGE OF PARLIAMENT, 141-42 (17th ed . 1964).

(21) MARY PATTERSON CLARKE, PARLIAMENTARY PRIVILEGE IN THE AMERICAN COLONIES (1971); see also CARL BECK, CONTEMPT OF CONGRESS: A STUDY OF THE PROSECUTIONS INITIATED BY THE COMMITTEE ON UN-AMERICAN ACTIVITIES, 1945-1957 (1959) [hereinafter Beck].

(22) 2 ASHER C. HINDS, PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, [section] 1599 (1907) [hereinafter Hinds' Precedents]. According to the records, Messrs. Randall and Whitney allegedly offered three Members emoluments and money in exchange for the passage of a law granting Randall and his associates some 18-20 million acres of land bordering Lake Erie. See id.

(23) Id.

(24) Id. at [section] 1600.

(25) Id.

(26) Id.

(27) Id. at [section][section] 1601-1602. The proceedings appear to have been delayed from December 30, 1795 to January 4, 1796, at the request of Randall and his counsel. Id.

(28) Id. at [section] 1603.

(29) Id.

(30) Id.

(31) C.S. Potts, Power of Legislative Bodies to Punish for Contempt, 74 U. PENN. L. REV. 691, 720 (1926).

(32) 2 Hinds' Precedents, supra note 22 at [section] 1604.

(33) Id.

(34) Id.

(35) Id. The Senate voted 16-11 to hold Mr. Duane in contempt. Id.

(36) Id. The records indicate that Mr. Duane was held in contempt of the Senate on March 27, 1800, and released by resolution adopted on May 14, 1800, the last day of the session, by a vote of 13-4. Id.

(37) Senate Proceedings, 6th Cong. 1799-1801 86 (March 5, 1800); see also Constitution, Jefferson's Manual, and the Rules of the House of Representatives, H.R. Doc. 108-241, 108th Cong., 2d Sess., [section][section] 297-299 (2005) [hereinafter Jefferson's Manual]

(38) See id.

(39) Id. at [section] 298

(40) U.S. CONST. Art. 1, [section] 8, cl.18.

(41) Jefferson's Manual, supra note 37 at [section] 298.

(42) See id.

(43) See Beck, supra note 21 at 192.

(44) Id.

(45) Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821).

(46) See 2 Hinds' Precedent, supra note 22 at [section] 1606. The letter offered Representative Williams $500 as "part pay for extra trouble" with respect to furthering the claims of Mr. Anderson with respect to the River Raisin. Id.

(47) Id.

(48) Id.

(49) Id.

(50) Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821).

(51) Id. at 228.

(52) Id. at 234.

(53) Id. at 228.

(54) See 2 Hinds' Precedent, supra note 22 at [section] 1604 (noting that Mr. Duane, who had been held in contempt by the Senate, was released from custody on the last day of the legislative session).

(55) Anderson, 19 U.S. (6 Wheat.) at 231.

(56) Unlike the House, whose entire membership stands for election every two years, only one-third of the Senate is elected each Congress.

(57) Allen B. Moreland, Congressional Investigations and Private Persons, 40 SO. CAL. L. REV. 189, 199, n. 31 (1967) [hereinafter Moreland].

(58) Id.

(59) See 2 Hinds' Precedents, supra note 22 at [section][section] 1628-629.

(60) See 2 Hinds' Precedents, supra note 22 at [section] 1609. It should also be noted that the Speaker also reported Mr. Kilbourn's contempt to the District Attorney for the District of Columbia pursuant to the 1857 criminal contempt statute. According to records, the District Attorney presented the case to a grand jury and received an indictment for five counts of contempt. The District Attorney requested the Mr. Kilbourn be turned over to his custody for trial. The House, however, after considerable debate, adopted a resolution instructing the Sergeant-at-Arms not to release Mr. Kilbourn. See 4 CONG. REC. 2483-2500, 2513-2532 (Apr. 15-16 1876). Although the Supreme Court later indicated, in the case of In re Chapman, 166 U.S. 661, 672 (1897), that the double jeopardy clause of the Constitution would not prohibit a criminal prosecution of a witness for contempt of Congress after he had been tried at the bar of the House under the inherent contempt power, subsequent developments in the interpretation of the double jeopardy clause suggest that this aspect of the Chapman decision is no longer good law. See Grafton v. United States, 206 U.S. 333 (1907); Waller v. Florida, 397 U.S. 387 (1970); Columbo v. New York, 405 U.S. 9 (1972). However, it appears that where the sanction imposed pursuant to the inherent contempt power is intended to be purely coercive and not punitive, a subsequent criminal prosecution would be permissible since the double jeopardy clause bars only dual criminal prosecutions. See S. Rept. No. 95-170, 95th Cong., 1st Sess., 89 (1977) (stating that "[o]nce a committee investigation has terminated, a criminal contempt of Congress citation under 2 U.S.C. [section] 192 might still be referred to the Justice Department if the Congress finds this appropriate. Such prosecution for criminal contempt would present no double jeopardy problem."); see also Hearings Before the Senate Committee on Governmental Affairs on S. 555, 95th Cong., 1st Sess., 798-800 (1977).

(61) See 2 Hinds' Precedents, supra note 22 at [section] 1609.

(62) Kilbourn v. Thompson, 103 U.S. 168, 189-90 (1881).

(63) Id. at 189.

(64) Id.

(65) 273 U.S. 135 (1927).

(66) Id. at 194 (questioning "[h]ow could the House of Representatives know, until it had been fairly tried, that the courts were powerless to redress the creditors of Jay Cooke & Co.? The matter was still pending in a court, and what right had the Congress of the United States to interfere with a suit pending in a court of competent jurisdiction?").

(67) Id. at 196.

(68) In Re Chapman, 166 U.S. 661 (1897).

(69) Barry v. United States ex rel Cunningham, 279 U.S. 597 (1929).

(70) McGrain v. Daughery, 273 U.S. 135 (1927).

(71) Id.

(72) Id. at 177.

(73) Id. at 177-178; see also ICC v. Brimson, 154 U.S. 447 (1894). It has been said that McGrain "very clearly removed the doubt [that had existed after Kilbourn v. Thompson] as to whether Congress could force testimony in aid of legislation." Moreland, supra note 57, at 222. Although McGrain and Sinclair v. United States, 279 U.S. 263 (1929), involved inquires into the activities of private individuals, there was a connection to property owned by the United States and, therefore, it could not be said that purely personal affairs were the subjects of the investigations.
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Title Annotation:Congress's Contempt Power: Law, History, Practice, and Procedure
Author:Rosenberg, Morton; Tatelman, Todd B.
Publication:Congressional Research Service (CRS) Reports and Issue Briefs
Article Type:Report
Geographic Code:1USA
Date:Jul 1, 2007
Words:3889
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