When, in 2019, a reporter asked House Speaker Nancy Pelosi whether Treasury Secretary Steven Mnuchin could be jailed for refusing the House’s request for six of President Trump’s tax returns, she replied: “Let me just say we do have a jail down in the basement of the Capitol.”
It wasn’t true, but several rooms in the Capitol have been used briefly as jails. And once, when space in the Capitol wasn’t available, the Senate’s sergeant at arms found another place to imprison someone he’d arrested for contempt. He used the Willard Hotel.
The prisoner was William P. MacCracken, Jr., a lawyer and former assistant secretary of commerce for aeronautics (the U.S.’s first aviation czar). In 1934, the Senate found that he’d enabled a client to destroy documents it had subpoenaed and held him in contempt. During an overnight adjournment of MacCracken’s trial, the sergeant at arms confined him in room 206 of the Willard. The detainee could exit only through adjacent rooms, and the sergeant at arms and his deputies occupied both of those. After the Senate convicted MacCracken and the Supreme Court denied his habeas corpus petition, he served his ten-day sentence in the D.C. Jail.
From 1795 through 1934, Congress regularly sanctioned people who defied its authority, and many Supreme Court decisions recognized its “inherent” power to do so.
THE MODERN ALTERNATIVE
The House of Representatives recently asked the Justice Department to prosecute Peter Navarro and Dan Scavino for the statutory crime of contempt of Congress. It had previously sought the prosecution of Mark Meadows and Steve Bannon for the same crime. These four had advised President Trump as he sought to overturn the 2020 presidential election, and all had refused to comply with subpoenas issued by the Select Committee to Investigate the January 6 Attack.
When the select committee asked the House to find Navarro and Scavino in contempt, members voiced frustration with the procedure they were voting to use. Although the Justice Department had sought and obtained Bannon’s indictment three weeks after the House requested it, more than three months had passed without any response to its request to prosecute Meadows. One member pleaded: “Attorney General Garland, do your job so we can do ours.”
However prompt and vigorous criminal prosecution of the four alleged contemnors might be, it would be unlikely to produce their timely testimony. Civil sanctions imposed by Congress would be more likely to generate information that could benefit the select committee.
The Willard Hotel was the site of the January 5 “war room” where Bannon, Rudolph Giuliani, Bernard Kerik, John Eastman and others conferred with President Trump and other White House officials and plotted ways to upend the presidential election. Confining the contemnors at the Willard until they complied with their duty to testify would be poetic. But because rooms at that historic inn start at about $350 per night, the D.C. Jail or Motel 6 might be better.
Better still would be daily fines, which could escalate for every day or week of noncompliance. One judge doubts that resurrecting the use of Congress’s inherent power to sanction contempt remains a realistic option. He worries that Congress would risk “physical combat with the Executive Branch” by “dispatch[ing] the Sergeant-at-Arms to arrest and imprison an Executive Branch official.” But ordering a contemnor to pay a fine to the sergeant at arms for every day of noncompliance would be unlikely to lead to a shootout.
A House resolution imposing this fine could authorize the sergeant to use all available civil processes to collect it. The contemnor could challenge the legality of Congress’s action by bringing an injunctive action against this officer. She also could take the riskier path of waiting to present her defenses until the House sought recovery of her accumulated fines in a civil lawsuit. If the contemnor refused to pay after a court ordered her to do so, the House could use the same collection procedures other judgment creditors employ—for example, garnishing the contemnor’s wages. Guns, handcuffs and hotel rooms wouldn’t be needed.
Congress hasn’t previously used fines to coerce witnesses, but a Lawfare post by Kia Rahnama shows that its ability to do so is not seriously in doubt. An amendment to the House Rules introduced by Rep. Ted Lieu would regulate the House’s use of fines to sanction defiant witnesses. Importantly, it would require contemnors to pay their fines from personal funds rather than cash donated by others.
If induced to comply with the House’s subpoenas, Bannon, Meadows, Navarro and Scavino—like their possible co-conspirators John Eastman, Michael Flynn, Jeffrey Clark, Roger Stone and Alex Jones—might invoke the privilege against self-incrimination. If they did, the House could compel their testimony only by securing a court order forbidding the use of this testimony to incriminate them. For the select committee to grant immunity to one or more persons in the “war room” and one or more in the White House, however, might be worthwhile.
A LESSON IN CONTEMPT PROCEDURE
The procedures for sanctioning witnesses who defy Congressional subpoenas are a tangle of imperfect options. Congress may ask the Justice Department to file criminal charges (as it did in the cases of Bannon, Meadows, Navarro and Scavino); it may ask a court to enforce its subpoenas (as it did in the case of Trump’s White House Counsel Don McGahn); or it may impose civil or punitive sanctions itself (as it did in MacCracken’s case).
Although civil sanctions for contempt may include jail time, they differ from criminal punishment. Their purpose is to induce compliance with an order rather than to punish a past act. The sanctions must be no more severe than is necessary to accomplish this purpose, and they may be imposed only until the contemnor complies. If it becomes clear that sanctions will not induce compliance, they must cease (although “civil” confinement for disobedience of a state court’s order once lasted 14 years).
The procedure for imposing civil sanctions is simpler and faster than that for imposing criminal punishment. Steve Bannon’s criminal trial is scheduled to begin on July 18, more than nine months after he failed to appear in response to the House’s subpoena. A judge has ruled that he may not present an “advice of counsel” defense, but Bannon may appeal that ruling if he’s convicted. That defense and other potential defenses clearly would be unavailable in a forward-looking civil enforcement proceeding. Bannon’s trial, which the judge expects to take as much as two weeks, will be before a jury. A conviction probably would lead to hundreds of pages of post-conviction pleadings, the preparation of a presentence investigation report, a sentencing hearing, an appeal, and finally a request for Supreme Court review. The maximum sentence for criminal contempt of Congress is one year in jail and a fine. Serving this sentence might make Bannon a martyr and a hero in the eyes of many MAGA boosters.
William MacCracken, confined in the Willard Hotel, was the last person jailed for contempt of Congress by Congress itself. In 1944, a Senate committee found Jonathan Daniels, an administrative assistant to President Roosevelt, in contempt and the threat of Daniels’s arrest and jailing apparently led the president to waive an earlier claim of privilege. Since then, Congress has relied on the other two branches of government to do the job, and they’ve botched it. When executive branch officers have advanced dubious claims of privilege, sophistry and delay on the part of the Justice Department and the courts usually have given them a free pass.
The person most recently tried for contempt of Congress was Rita Lavelle in 1983. She was acquitted of this crime at the same time she was convicted of perjury for lying to Congress (see below). Apart from a few defendants who pleaded guilty to contempt in exchange for the dismissal of more serious charges, the person most recently convicted of this crime was G. Gordon Liddy in 1974. Because he already was serving a lengthy sentence for planning the Watergate burglary, the judge did not sentence him to prison. The person most recently imprisoned for criminal contempt of Congress (as best I can tell) was Lloyd Barenblatt in 1959. The Supreme Court had affirmed his conviction for refusing to tell the House Un-American Activities Committee whether he was or ever had been a communist.
PATH 1: CRIMINAL PROSECUTION
By charging Steve Bannon with contempt, the current Justice Department has gone farther in upholding Congress’s authority than any of its recent predecessors. The subjects of most of Congress’s earlier requests for prosecution were officials of the same administration and members of the same political party as the president and the attorney general. The Justice Department tilted strongly in favor of these executive officers.
Congress first sought the indictment of a cabinet-level officer when it asked the Justice Department to prosecute Anne Gorsuch in 1982. She was the administrator of the Environmental Protection Agency (and the mother of current Supreme Court Justice Neil Gorsuch). At President Reagan’s direction, Gorsuch refused to comply with a subpoena Congress issued in its investigation of a Superfund scandal. This scandal led ultimately to Gorsuch’s resignation, the perjury conviction and imprisonment of the assistant administrator directing the Superfund program (Lavelle), and a lengthy special counsel investigation of Assistant Attorney General Ted Olson. That investigation ended when the special counsel determined that Olson’s testimony before Congress was “disingenuous and misleading” but not criminal.
Years later, Olson would make the winning Supreme Court argument in Bush v. Gore and serve as President George W. Bush’s solicitor general. In 1984, however, as assistant attorney general in charge of the Office of Legal Counsel, he wrote an opinion justifying the department’s refusal to prosecute Gorsuch. (The refusal itself had come one day after Congress’s request.)
Olson’s opinion focused on a procedural provision of the 1857 criminal statute that made contempt of Congress a federal crime. It says that the speaker of the House or president of the Senate must certify a witness’s failure to comply with a subpoena to “the appropriate United States Attorney, whose duty it shall be to bring the matter before the grand jury for its action.” Olson’s opinion construed this provision to give the Justice Department “prosecutorial discretion not to refer contempt citations to a grand jury.” (Yes, you read that statement correctly.) Olson, a founder and prominent member of the Federalist Society, purports to believe in following the law as it’s written, not as he’d like it to be.
Olson’s upside down construction of the contempt statute was influenced by his concern that a different construction might make the statute unconstitutional. The Constitution requires the president to “take Care that the laws be faithfully executed,” and Olson construed this provision to afford the department unchecked discretion not to enforce the law.
Without discussing what the framers expected the role of the grand jury to be, Olson concluded that a Congressional direction to present a case to a grand jury would be inconsistent with the department’s magisterial powers. It seems safe to say that no one before the twentieth century imagined that the authors of the contempt statute meant the opposite of what they said or supposed that the provision directing a U.S. attorney to present Congress’s request to a grand jury posed any constitutional issue whatsoever.
To be sure, opponents of the 1857 statute complained that it violated the Constitution. They said it contravened the prohibitions of double jeopardy, unreasonable searches and seizures, and compelled self-incrimination. But no one hinted that its direction to present a case to a grand jury might be inconsistent with prerogatives afforded U.S. attorneys by Article II of the Constitution.
Although Olson’s opinion spoke of the prosecutorial discretion supposedly enshrined by Article II, the contempt statute did not require the U.S. attorney to prosecute. It required her only “to bring the matter before the grand jury for its action.” Indeed, federal courts in the nineteenth century took the view that the U.S. attorney’s “opinion as to the sufficiency of the evidence to prove guilt should never be given, even if asked by the jury.” Moreover, if the grand jury returned an indictment, the U.S. attorney could dismiss the prosecution the next day. But the prosecutor might hesitate to reject the judgment of both a house of Congress and a grand jury, and the statute entitled the grand jury to have its say.
Shortly after Olson’s opinion, the Supreme Court noted that the practice of construing statutes to avoid constitutional questions “is not a license for the judiciary to rewrite language enacted by the legislature.” Since then, the court has repeatedly cautioned against mangling statutes to avoid constitutional questions. The Justice Department, however, in both Democratic and Republican administrations, has ignored the court and adhered faithfully to Olson’s statute-mangling precedent. This precedent probably will endure as long as the department stands.
Before Olson’s 1984 opinion, the Department of Justice advised some White House officials they could lawfully disregard congressional subpoenas. After this opinion, it regularly refused to bring congressional contempt citations before a grand jury because it concluded that disobedient officials had “absolute testimonial immunity.” (Justice Department opinions asserting this immunity may account for its hesitancy to prosecute Mark Meadows. In an earlier post, I described some of these opinions and concluded that giving immunity to Meadows wouldn’t pass the laugh test.) As an opinion by Judge Kentanji Brown Jackson observed: “[T]he proposition that senior-level presidential aides are entitled to absolute testimonial immunity has no principled justification” and “no basis in law.” This proposition “appears to be a fiction that has been fastidiously maintained over time through the force of sheer repetition in [Justice Department] opinions.”
The department has shown that Congress can’t rely on it to prosecute current and former members of the executive branch who defy Congress’s authority, not even when these officials probably would be convicted and the department’s refusal to prosecute would contravene its own Principles of Federal Prosecution.
At the same time, if criminal punishment were to become more effective, it often would be unfair. Under current standards, officials can obtain judicial rulings on the validity of their claims of privilege only by risking jail if a court rules against them. Their mistake of law, however reasonable, is no defense. Although officials who present plausible claims of privilege aren’t culpable, giving them a defense would effectively broaden every privilege. Witnesses could refuse to testify without sanction whenever they reasonably believed they were privileged. Many unlawful refusals to testify would go unsanctioned.
The use of civil fines by Congress would eliminate this dilemma. By bringing an action to enjoin collection of the fine, an alleged contemnor could obtain a judicial resolution of her claim of privilege without being judged a criminal if a court disagreed. If a court stayed collection of the fine pending litigation, the adjudication would come before even the civil sanction was imposed. This remedy not only would be more effective in inducing compliance than criminal punishment; it also would give the witness a less perilous way to challenge the legality of congressional sanctions. Criminal punishment then could be limited to truly culpable witnesses who disobeyed congressional orders without plausible justification.
PATH 2: CIVIL ENFORCEMENT
Olson’s 1984 opinion indicated that an effective noncriminal remedy already existed: “Congress could obtain a judicial resolution of the underlying privilege claim and vindicate its asserted right to obtain any documents by a civil action for enforcement of a congressional subpoena.” Before the Olson opinion, Congress had sought judicial enforcement of a subpoena to an executive branch official in one case without success. After this opinion, it took Olson’s proposed path three times.
It did so first in 2008 when former White House Counsel Harriet Miers and White House Chief of Staff Josh Bolten refused to comply with House subpoenas issued during an investigation of the discharge of nine U.S. attorneys during the George W. Bush administration. The Justice Department, representing Miers and Bolton, responded that presidential aides have absolute immunity from congressional subpoenas, that the House lacked standing to enforce its subpoenas in court, and that disputes between the legislative and executive branches cannot be heard by federal courts.
A 93-page opinion by Judge John Bates rejected the Justice Department’s arguments and ordered Miers and Bolton to comply with the subpoenas. When the department appealed, a federal appeals court stayed Judge Bates’ ruling permanently. Over the House’s objection, the court refused to expedite its consideration of the appeal because, even if it did, it thought the case was likely to become moot before the appellate process (including en banc review of an initial panel decision and Supreme Court consideration of a petition for review) could be completed. Congressional subpoenas and orders enforcing them expire at the end of each Congress, and the witching hour would come only three-and-one-half months after the appeal was argued. A judge who concurred in the decision criticized what he characterized as the first stay ever designed to deprive a successful litigant irrevocably of its victory. After President Obama, a Democratic attorney general, and a new Congress took office, the House and the Justice Department settled their dispute. Meirs then testified in a closed Congressional proceeding.
A ruling by a judge of the United States District Court for the District of Columbia doesn’t settle anything for the other judges of that court. So the Justice Department presented its arguments anew when the House asked a District Court to enforce its subpoena for documents Attorney General Eric Holder had refused to supply during its investigation of a bungled gunrunning sting. (Because the House sought only documents, the department omitted its claim of testimonial immunity.) A lengthy opinion by Judge Amy Berman Jackson rejected the department’s arguments, and the department appealed. Its appeal remained pending when the parties settled the case seven years after the House first sought the enforcement of its subpoena.
In 2019, the House sought the testimony of former White House Counsel Don McGahn concerning some of President Trump’s allegedly criminal conduct. The House’s list of reasons for seeking this testimony included the possibility of impeaching the president. At the direction of the president, McGahn refused to comply with the subpoena, and the House asked the District Court to enforce it.
Because neither of the earlier district court opinions were authoritative, the Justice Department again presented its arguments, and, for the third time, it struck out. In a 118-page opinion whose rejection of the claim of testimonial immunity was quoted above, Judge Ketanji Brown Jackson declared that the department had the Constitution’s separation of powers principles exactly backwards. Although the judge refused to stay her order enforcing the subpoena, the Court of Appeals did grant a stay.
By a vote of two-to-one, a panel of the appellate court then reversed Judge Jackson’s ruling and accepted one of the Justice Department arguments. It concluded that the House had no standing to seek judicial enforcement of its subpoenas. Although the standing of private litigants, administrative agencies and the Justice Department itself to seek enforcement of their subpoenas was unquestioned, the House of Representatives was different.
The full appellate court reversed the panel decision. Upholding the House’s standing, it returned the case to the panel to resolve other issues. The only dissenters from the court’s ruling were the two judges whose panel opinion it rejected.
On remand (and again over a dissent), these judges again concluded that the House’s enforcement action was improper—this time because the judicial enforcement of House subpoenas had not been properly authorized by statute. A statute specifically authorized the Senate to seek enforcement of some subpoenas, but it didn’t mention the House. According to the court, “the expression of one thing implies the exclusion of the other.” The House again sought review by the full appellate court.
In May 2021, more than two years after the House subpoenaed McGahn’s testimony, the House and the Justice Department approved a settlement. A Lawfare post by Jonathan Schaub called it a devastating loss for Congress. By then, President Trump had come to the end of his presidency without being removed by the Senate. The agreement provided that McGahn would give unsworn, nonpublic testimony about a narrow range of issues.
When the en banc Court of Appeals dismissed the House’s lawsuit following the settlement, it granted the parties’ request to vacate the panel opinion declaring the lawsuit unauthorized by statute. Unless Congress enacts a new statute, the House and the Justice Department will dispute the issue anew in the next case. It will be Groundhog Day all over again.
To date, no congressional lawsuit to enforce a subpoena issued to a present or former executive-branch official has generated any evidence during the Congress or presidential term in which it was sought. And very little has been settled. Despite three powerful and comprehensive opinions by able federal judges, we’ve learned only that the House does have standing. (In 2020, in Trump v. Mazars, the Supreme Court italicized one word of a prior opinion: “When Congress seeks information ‘needed for intelligent legislative action,’ it ‘unquestionably’ remains ‘the duty of all citizens to cooperate.’” Mazars, however, didn’t address directly the claims of immunity, non-justiciability, and lack of standing the Justice Department had advanced in earlier cases as reasons for denying the enforcement of congressional subpoenas.)
PATH 3: CONGRESSIONAL SANCTIONS REVIEWED BY THE COURTS
For centuries before the ratification of the U.S. Constitution, the English Parliament and colonial legislatures sanctioned people who defied their authority, and, starting in 1795, Congress continued the practice. Although neither the Constitution nor any statute expressly authorized jailing people held in contempt, the Supreme Court held in 1821 that doing so was an inherent part of Congress’s legislative power. That Congress might lack this authority, the court said, was “a supposition too wild to be suggested.” (One early commentator, St. George Tucker, did maintain that, because the Constitution expressly authorized each house of Congress to discipline its own members, the House’s 1795 jailing of a nonmember for contempt was unauthorized. But Tucker’s contemporaries James Kent and Joseph Story disagreed, as did the House itself and the Supreme Court.)
Judicial decisions over the next two centuries confirmed Congress’s authority. In 1927, after a thorough review of the relevant history, the court observed that Congress’s “power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” (In Mazars, the court quoted this language with approval.) When, in its vacated 2020 opinion, a panel of the D.C. Circuit refused to enforce the McGahn subpoena, it rejected the House’s claim that Supreme Court decisions had approved enforcement by the courts. “To the contrary,” the panel said, “they show that Congress has long relied on its own devices.” (One could plausibly read that statement as both a continuing authorization and a dare.)
In 1986, however, the Justice Department made the suggestion the 1821 Supreme Court called too wild to advance. A Justice Department opinion by Assistant Attorney General Charles Cooper doubted that the court would continue to uphold Congress’s power to imprison contemnors. (Cooper calls himself “an unrepentant and avowed originalist,” and perhaps he didn’t mean he’d approve of what he thought the court was likely to do.)
When the Justice Department later resisted judicial enforcement of the Meirs and Bolton subpoenas, it told the court there was an alternative. The House could use its inherent authority to sanction their contempt instead. Noting the Cooper opinion and one other, Judge Bates sharply criticized the department’s effort to have things both ways.
Although the Justice Department has questioned each of the three ways of enforcing Congressional subpoenas, it should not be charged with inconsistency. Whichever path Congress had taken, the pre-Garland Justice Department unfailingly said it should have chosen a different one (that is, when the department didn’t declare all three paths closed by the absolute immunity of current and former presidential aides). Protecting the executive branch from effective congressional oversight bears some resemblance to a shell game.
A petition for habeas corpus allows judicial review of confinement ordered by Congress. In 1917, the Supreme Court set aside the contempt citation of a federal prosecutor who disparaged House members in a published letter—conduct the court said did not interfere with the House’s ability to legislate. Earlier, the court set aside a contempt citation because Congress’s inquiry concerned a subject on which it could not legitimately legislate. In 1972, after reaffirming the authority of Congress and state legislatures to sanction contempt, the court ordered the release of someone the Wisconsin Legislature had jailed without affording him an opportunity to be heard.
The case of the captive in the Willard Hotel shows the breadth of Congress’s power. Because William MacCracken’s client had destroyed subpoenaed documents, compliance with the Senate’s subpoena was impossible. MacCracken argued that Congress may jail someone only to compel his or her obedience, not to punish a past act. Justice Brandeis’s opinion for a unanimous court rejected that contention.
MacCracken also argued that Congress’s approval of the criminal contempt statute showed that it no longer sought to impose punishment for past acts itself. Brandeis’s opinion not only rejected this argument but declared that MacCracken could both be punished by Congress and convicted of the crime. Just as the Double Jeopardy Clause permits different governments to punish the same act, it allows Congress and the courts to do so.
The current court might reconsider MacCracken’s double jeopardy ruling, but, even if it did, Congress’s imposition of civil sanctions for contempt would pose no obstacle to the Justice Department’s criminal prosecution of Bannon, Meadows, Navarro and Scavino. In 1947, the Supreme Court upheld the imposition of both civil and criminal sanctions for disobedience of a judicial order by the United Mine Workers and its president, John L. Lewis.
An unresolved question is whether Congress’s rejection of a witness’s claim of executive privilege is subject to judicial review. As recently as 2009, Josh Chafetz, a careful and thoughtful scholar of contempt procedure, concluded that “Congress itself, . . . and not a court on collateral review, is the proper tribunal to adjudicate the executive privilege defense.” Chafetz cited Congress’s Watergate hearings and its then-recent hearings on the firing of U.S. attorneys to show that Congress had exercised its power judiciously.
But that was then. Few members of either political party today would have any confidence in the rejection of a claim of privilege by a House or Senate majority composed overwhelmingly of members of the other party. The first rule in evaluating and approving procedures for sanctioning contempt is: Imagine how the other party would abuse these procedures if it won the next election. With that principle in mind, both parties should welcome review by the courts of the legality of congressional sanctions. Sanctions need not always be stayed until this review is complete.
Congress’s contempt power has shortcomings. Congress made contempt a statutory crime in 1857 partly because the burden of conducting trials interrupted its other work. That burden, however, was greater in the nineteenth century than it would be today. Congress no longer treats such acts as defaming Congress or attempting to bribe members as contempt, and proving noncompliance with congressional orders is rarely difficult or time consuming. Defenses typically consist of legal issues that can be addressed in written briefs. When hearing witnesses is necessary, it can be done by a committee rather than the full House or Senate. The Senate has used committees to receive evidence in some impeachment trials, and the Supreme Court has declined to interfere. The Constitution provides that “[e]ach House may determine the rules of its proceedings,” and these rules could authorize investigative committees not only to issue subpoenas but also to impose fines for noncompliance. Trials by the full House or Senate, although traditional, probably are not required.
Congress’s enactment of the criminal contempt statute was also prompted by the fact that Congressional subpoenas and enforcement orders expire when a new Congress takes office. Unless Congress reasserts its investigatory interest or reissues a subpoena, these orders turn into pumpkins, and so do civil enforcement proceedings pending in the federal courts. (The next Cinderella moment will come at noon on Jan. 3, 2023.) The arrival of a new Congress, however, doesn’t abort the prosecution or punishment of a completed crime. That may be one reason why the House has sought the criminal prosecutions of Bannon, Meadows, Navarro and Scavino.
PUTTING CONGRESS’S INHERENT POWER TO USE
The procedures used to sanction contempt of Congress from 1795 through 1944 are superior to those used in recent years, and Congress should revive them. When a house of Congress has held someone in contempt, it should not be required to ask the federal courts (which are certain to be buried in procedure and paper) or the Justice Department (which often has a massive conflict of interest) to please help. Rather, Congress should cast the burden of seeking review and showing that Congress acted unlawfully on the person held in contempt. Although MacCracken allows Congress to punish past disobedience, Congress should leave that job to the courts and should impose only civil sanctions designed to induce compliance.
If the select committee considers the testimony of Bannon, Meadows, Navarro and Scavino important, it should reissue its subpoenas for this testimony. If these witnesses’ defiance persists, the committee should again ask the full House to hold them in contempt. The House should then order the contemnors to pay fines from their personal funds to the Sergeant at Arms for every day or week of noncompliance. Its resolution could specify the maximum amount to be collected from each contemnor, and it should authorize the sergeant to use all available civil processes to collect any fine a contemnor fails to pay. It also should direct its legal representatives not to assert any defense that would block any litigant with standing from challenging the legality of its action in a timely lawsuit against the Sergeant at Arms.
A SUGGESTED PROCEDURE FOR JUDICIAL REVIEW OF CONGRESSIONAL SANCTIONS FOR CONTEMPT
Although either house of Congress may establish its own procedures for sanctioning contempt, reforming the current procedure for reviewing the legality of congressionally imposed sanctions would require legislation. The process of securing congressional approval of this legislation shouldn’t delay the use of more effective sanctions by each house. This section sketches legislation designed to implement the following principle: Anyone sanctioned for contempt by Congress should be able to obtain a prompt, authoritative judicial determination of the legality of this action.
Currently, someone imprisoned by Congress can secure review by seeking a writ of habeas corpus, and someone fined by Congress can bring an action to enjoin collection of the fine. A statute could consolidate these procedures and allow anyone sanctioned by Congress to bring a civil action in the United States District Court for the District of Columbia against the official charged with implementing Congress’s sanctions. The plaintiff could seek a declaration that the sanctions were invalid. The limitations period for filing this action should be short (perhaps 21 days).
Since 1910, when Congress has sought prompt, authoritative resolutions of important legal questions, it has authorized three-judge federal district courts to hear lawsuits presenting these questions and has allowed parties to appeal these courts’ rulings directly to the Supreme Court. The contempt statute should provide a variant of this procedure. Like current statutes, it should require the inclusion of an appeals court judge on the three-judge panel. To guard against perceptions of partisanship, it also might require the inclusion of a judge appointed by a president of a different political party than the party of the president[s] who appointed the other two.
Crucially, the statute should specify a standard for granting relief while litigation is pending. Congress itself might put its sanctions on hold for a time, and the district court should be able to delay the imposition of sanctions as well. But there should be no presumption in favor of postponing sanctions. Like a convicted defendant seeking to delay the start of her prison sentence while she appeals, a plaintiff seeking a stay or a preliminary injunction should be required to “raise substantial questions of law or fact likely to result in” a determination that Congress’s action was unlawful.
Although, in other situations, Congress has authorized losing litigants to appeal the rulings of three-judge district courts directly to the Supreme Court, the contempt statute should authorize only the filing of a petition for discretionary review. A plaintiff whose claim of privilege is insubstantial should be entitled neither to a stay nor to full consideration of her case by the Supreme Court. If the denial of interim relief and the prompt imposition of sanctions lead to her compliance, so much the better. But a plaintiff who fails to obtain interim relief from the district court should be able to seek it from the Supreme Court. That court should be able to delay the imposition of sanctions simply because the plaintiff’s case presents an issue it is likely to accept for review if a petition for review eventually comes before it.
The contempt statute should direct district courts empaneled under the statute to give the decisions of other district courts empaneled under the statute the same precedential weight an appellate court would afford its own decisions. Replays in cases destined from the outset to vanish after Elvis has left the building are getting tiresome.
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Bannon, Meadows, Navarro and Scavino may not be the last witnesses to disobey the select committee’s orders. After Jan. 6, the leaders of President Trump’s party in both the Senate and the House acknowledged his responsibility for the events of that day, and the now-former president purports to command people with knowledge of how and why those events occurred not to show up when subpoenaed by the U.S. Congress. Congress, however, need not allow witnesses to stonewall. It should polish up its old tools and use them.