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Inherent contempt proceedings by Committees of Congress.

July 24, 2007

As has been indicated, although the majority of the inherent contempts by both the House and the Senate was conducted via trial at the bar of the full body, there is historical evidence to support the notion that this is not the exclusive procedure by which such proceeding can occur. This history, when combined with a 1993 Supreme Court decision addressing the power of Congress to make its own rules for the conduct of impeachment trials, (90) strongly suggests that the inherent contempt process can be supported and facilitated by the conduct of evidentiary proceedings and the development of recommendations at the committee level.

Actually, the consideration of the use of committees to develop the more intricate details of an inquiry into charges of contempt of Congress date back to the very first inherent contempt proceedings of Messrs. Randall and Whitney in 1795. As discussed above, in these cases the House appointed a Committee on Privileges to report a mode of procedure. The Committee reported the following resolution, which was adopted by the full House of Representatives:
   Resolved, That the said Robert Randall and Charles Whitney be
   brought to the bar of the House and interogated by the Speaker
   touching the information given against them, on written
   interrogatories, which with the answers thereto shall be entered
   into the minutes of the House. And that every question proposed by
   a Member be reduced to writing and a motion made that the same be
   put by the Speaker. That, after such interrogatories are answered,
   if the House deem it necessary to make any further inquiry on the
   subject, the same be conducted by a committee to be appointed for
   that purpose. (91)

According to the Annals of Congress, the Committee's language sparked a debate concerning the proper procedures to be used, including a discussion regarding whether the use of such a select committee was proper. (92) At least one Representative "was convinced that the select committee was alone competent to taking and arranging the evidence for the decision of the House." (93) While others noted that "the investigation of facts is constantly performed by select committees.... [The committee's] report is not to be final, it is to be submitted to the House for final decision." (94) It was recommended that, "the subject should be remanded to a committee, which would save a good deal of time." (95) Other Members, however, objected to the use of a select committee to hear evidence of this magnitude on the grounds that it would be:
   highly improper for the witness to be sworn by a select committee,
   and that committee to send for the Members and have them sworn and
   examined in that private way. However troublesome and difficult,
   the House must meet all the questions and decide them on this
   floor. (96)

Ultimately, it appears that none of the proceedings in this case was conducted before a select committee. That said, Congress's interpretation of its own powers and prerogatives is significant. It is clear that during the very first exercise of Congress's power of inherent contempt, the House allowed for the possibility that at least some of the proceedings could occur before a committee, rather than at the bar of the House.

This early precedent was finally invoked in 1836, when after the assault of reporter Robert Codd by reporter Henry Wheeler on the House floor, the House committed the examination of a contempt and breach of privilege to a select committee. The House adopted the following resolution empowering the committee to conduct a contempt investigation:
   Resolved, That a select committee be forthwith appointed, whose
   duty it shall be forthwith to inquiry into an assault committed
   within the Hall of the House of Representatives this morning, while
   this House was in session and for and on account of which two
   persons are now in custody of the Sergeant-at-Arms; and said
   committee are to make their report to this House; and that said
   committee be authorized to administer oaths and to cause the
   attendance of witnesses. (97)

The Committee's report noted that Mr. Wheeler admitted his offense and included a recommendation that the punishment not be vindictive. (98) The report also contained three resolutions that were considered by the full House. The first found Mr. Wheeler guilty of contempt and breach of the privileges of the House, and was adopted. The second, which was amended on the floor prior to adoption, excluded Mr. Wheeler from the floor of the House for the remainder of the session. Finally, the third resolution, which called for Mr. Wheeler to be taken into custody for the remainder of the session, was also amended on the floor prior to adoption to simply discharge Mr. Wheeler from custody. (99)

Another example of the use of select committee to hear a contempt trial occurred in 1865, when it was alleged that Mr. A.P. Field assaulted Congressman William Kelley. Similar to the contempt proceedings of Mr. Wheeler, the House adopted the following resolution authorizing a select committee to conduct an examination of the charges:
   Be it Resolved, That a select committee of five members be
   appointed by the Speaker to inquire into the said alleged breach of
   privilege; that the said committee have power to send for persons
   and papers, and to examine witnesses; and that the committee report
   as soon as possible all the facts and circumstances of the affair,
   and what order, if any, it is proper for this House to take for the
   vindication of its privilege, and right, and duty of free
   legislation and judgment. (100)

During the debate on the resolution it was observed that proceeding in this manner would avoid a trial by the full House, which, in the words of one Member, "would consume a great amount of the public time which there is a pressing need to apply to the business of the Government, it is better that the course should be adopted which is contemplated by the resolution...." (101)

The select committee, in its report to the full House, noted that it had heard the testimony of several witnesses concerning the incident, including the voluntary statement of Mr. Field. (102) Also according to the Committee, Mr. Field was present for each of the witnesses and, in fact, several of them were heard from at his request. Moreover, all of the witnesses were subject to examination or cross-examination by Mr. Field. (103) At the committee's recommendation, a resolution directing the Speaker to issue a warrant for Mr. Field's arrest by the Sergeant-at-Arms for the purpose of bringing him before the Speaker for a reprimand was adopted. (104) It does not appear that Mr. Field or his counsel was permitted to be present during the House's consideration of the committee's report, nor does it appear that he was afforded an opportunity to address the House prior to his formal reprimand. In fact, during the course of the reprimand, the Speaker expressly referred to Mr. Field having "been tried before a committee of their members, and ordered to be reprimanded at the bar of the House by their Presiding Officer," (105) which may be interpreted as indicating that the committee's proceedings were deemed to be sufficient in the eyes of the House.

Nixon v. United States. Although there is ample historical evidence of the presumed propriety of contempt proceedings before committees of Congress, there has been no judicial ruling directly confirming the Congress's interpretation of its own contempt powers. In 1993, however, the Supreme Court decided United States v. Nixon, (106) which, while not a contempt case, involved an analogous delegation of authority by the Senate to a select committee for the purposes of hearing evidence regarding the impeachment of two federal judges. Specifically, the impeached judges challenged the Senate's procedure under Rule XI of the "Rules of Procedure and Practice in the Senate when Sitting on Impeachment Trials," which provides:
      That in the trial of any impeachment the Presiding Officer of the
   Senate, if the Senate so orders, shall appoint a committee of
   Senators to receive evidence and take testimony at such times and
   places as the committee may determine, and for such purpose the
   committee so appointed and the chairman thereof, to be elected by
   the committee, shall (unless otherwise ordered by the Senate)
   exercise all the powers and functions conferred upon the Senate and
   the Presiding Officer of the Senate, respectively, under the rules
   of procedure and practice in the Senate when sitting on impeachment

      Unless otherwise ordered by the Senate, the rules of procedure
   and practice in the Senate when sitting on impeachment trials shall
   govern the procedure and practice of the committee so appointed.
   The committee so appointed shall report to the Senate in writing a
   certified copy of the transcript of the proceedings and testimony
   had and given before the committee, and such report shall be
   received by the Senate and the evidence so received and the
   testimony so taken shall be considered to all intents and purposes,
   subject to the right of the Senate to determine competency,
   relevancy, and materiality, as having received and taken before the
   Senate, but nothing herein shall prevent the Senate from sending
   for any witness and hearing his testimony in open Senate, or by
   order of the Senate having the entire trial in open Senate. (107)

Judge Nixon argued that the use of a select committee to hear the evidence and witness testimony of his impeachment violated the Senate's constitutional duty to "try" all impeachments. According to Judge Nixon, anything short of a trial before the full Senate was unconstitutional and, therefore, required reversal and a reinstatement of his judicial salary. The Court held the issue to be a non-justiciable political question. Chief Justice Rehnquist, writing for the Court, based this conclusion upon the fact that the impeachment proceedings were textually committed in the Constitution to the Legislative Branch. In addition, the Court found the "lack of finality and the difficulty in fashioning relief counsel[led] against justiciability." (108) According to the majority, to open "the door of judicial review to the procedures used by the Senate in trying impeachments would 'expose the political life of the country to months, or perhaps years, of chaos.'" (109) The Court found that the word "try" in the Impeachment Clause did not "provide an identifiable textual limit on the authority which is committed to the Senate." (110) Justice Souter's concurring opinion noted that "[i]t seems fair to conclude that the [Impeachment] Clause contemplates that the Senate may determine, within broad boundaries, such subsidiary issues as the procedures for receipt and consideration of evidence necessary to satisfy its duty to 'try' impeachments." (111)

The Court's affirmation of the Senate's procedures with respect to the appointment of select committees for impeachment trials, clearly indicates that the use of committees for contempt proceedings--whether they be standing legislative committees, or select committees created by resolution for a specific purpose--is a permissible exercise of each House's Article I, section 5 rulemaking power. As such, it would appear that one of the suggested reasons for the apparent abandonment of the use of Congress's inherent contempt power, namely, that it became to cumbersome and time consuming to try contemptuous behavior on the floor of the body, is no longer compelling. The ability to utilize the committee structure for trials, evidentiary hearings, and other procedural determinations appears to be supported not only by the historical records of previous contempt proceedings, but also by the Court's decision in Nixon.

While the Court in Nixon addressed the permissibility of using select committees in impeachment trials, it says nothing about the rights or privileges that would be required to be afforded to the accused. Similarly, in any contempt proceedings before a congressional committee, the question of rights and privileges remains one that has not yet been directly addressed by the courts. According to the Supreme Court in Groppi v. Leslie:
   [t]he past decisions of this Court strongly indicate that the
   panoply of procedural rights that are accorded a defendant in a
   criminal trial has never been thought necessary in legislative
   contempt proceedings. The customary practice in Congress has been
   to provide the comtemnor with an opportunity to appear before the
   bar of the House, or before a committee, and give answer to the
   misconduct charged against him. (112)

The Court also suggested that "the length and nature of the [right to be heard] would traditionally be left largely to the legislative body...." (113) This deference to Congress in establishing its own rules and procedures is consistent with the more recent decision in Nixon. Thus, it would appear that while there is no definitive answer to the question of what rights the committee hearing a contempt proceeding would be required to afford, (114) so long as the minimum protections of notice and opportunity to be heard are provided, the courts, it seems, will not interfere with Congress's decisions regarding proper procedure.

Congressional precedent would also appear to be a useful guide to the question of what process is due. A review of early exercises of inherent contempt, discussed above, indicates that the following procedures have been established: attachment by the Sergeant-at-Arms; appearance before the bar; provision for specification of charges; identification of the accuser; compulsory process; provision of counsel; a hearing; determination of guilt; and imposition of a penalty. According to one commentator, "[t]his traditional procedure was followed by both houses of Congress until they abandoned it for a more convenient statutory device." (115) Since these procedures appear to be in excess of what the Court instructed was required in Groppi, it would seem reasonable to conclude that any inherent contempt proceeding that conforms with these traditions would likely satisfy judicial review.

Morton Rosenberg

Specialist in American Public Law

American Law Division

Todd B. Tatelman

Legislative Attorney

American Law Division

(90) See United States v. Nixon, 506 U.S. 224 (1992).

(91) See 2 Hinds' Precedent, supra note 22 at [section] 1599 (emphasis added).

(92) See 5 ANNALS OF CONG. 188 (1792).

(93) See id. (statement of Rep. Baldwin).

(94) Id. at 189 (statement of Rep. W. Smith).

(95) Id. at 190 (statement of Rep. W. Smith).

(96) Id. at 188 (statement of Rep. Hillhouse).

(97) 2 Hinds' Precedent, supra note 22 at [section] 1630.

(98) See id.; see also H. Rept. No. 792, 24th Cong. 1st Sess., (1836).

(99) Id.; see also Groppi v. Leslie, 404 U.S. 496, 501 n.4 (1972) (citing the Wheeler committee procedure as an example of procedures followed by Congress in contempt cases).

(100) CONG. GLOBE, 38th Cong., 2nd Sess., 371 (1865).

(101) Id. (statement of Rep. Thayer).

(102) Id. at 971.

(103) Id.

(104) Id. at 972-74.

(105) Id. at 991 (emphasis added).

(106) 506 U.S. 224 (1993).

(107) Id. at 227, n. 1 (emphasis added).

(108) Id. at 739.

(109) Id. (quoting United States v. Nixon, 938 F.2d 239, 246 (D.C. Cir. 1991)).

(110) Id. at 740.

(111) Id. at 748 (Souter, J., concurring).

(112) See Groppi v. Leslie, 404 U.S. 496, 500-01 (1972) (citing Jurney v. MacCracken, 294 U.S. 125, 143-144 (1935); Kilbourn v. Thompson, 103 U.S. 168, 173-174 (1880); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 209-211 (1821); Marshall v. Gordon, 243 U.S. 521, 532 (1917)).

(113) Id. at 503.

(114) While the Supreme Court in Groppi limited its holding to requiring only notice and the opportunity to be heard, the lower court in the same case suggested that the following rights were also necessary: representation by counsel; the ability to compel the attendance of witnesses; an opportunity to confront any accusers; and the right to present a defense to the charges. See Groppi v. Leslie, 311 F.Supp. 772, 774 (W.D. Wisc. 1970), rev'd, 436 F.2d 326 (7th Cir. 1970), rev'd., 404 U.S. 496 (1972).
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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
Previous Article:Inherent contempt.
Next Article:Statutory criminal contempt.

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