Contempt of Congress

Based on Wikipedia: Contempt of Congress

In July 2024, Steve Bannon reported to a federal prison in Connecticut. His crime wasn't fraud or violence or theft. He simply refused to show up when Congress told him to.

A few months earlier, Peter Navarro had done the same thing—walked into prison for the same offense. These two men became the first White House officials in American history to be imprisoned for contempt of Congress. The charge sounds almost quaint, like something from a dusty law book. But it carries real teeth: up to a year in jail and fines up to one hundred thousand dollars.

What Contempt of Congress Actually Means

At its core, contempt of Congress is straightforward. When Congress—or one of its many committees—asks you to do something, and you refuse, you're in contempt. Usually this means ignoring a subpoena, which is a legal order to either testify before a committee or hand over documents they've requested.

Think of it as the legislative branch's way of saying: we're not asking.

The power seems obvious now, but it wasn't always spelled out in law. In the early days of the American republic, Congress simply assumed it had this authority, borrowing the concept from the British Parliament's long-established "contempt of Parliament." The logic was intuitive: how can a legislature function if people can just ignore it?

The Founding Era Was Wilder Than You Think

The first contempt cases had nothing to do with subpoenas. They were about bribery.

In 1795, a man named Robert Randall tried to bribe Representative William Smith of South Carolina. Congress responded by holding Randall in contempt. No special criminal statute existed—they just did it, treating the offense as an insult to the institution itself.

Five years later, a newspaper editor named William Duane found himself in Congress's crosshairs. His offense? Refusing to answer questions from the Senate. Duane wasn't accused of any underlying crime. He simply wouldn't cooperate with the Senate's inquiry, and that alone was enough.

Then came Nathaniel Rounsavell in 1812, another newspaper editor who leaked sensitive information. Congress treated this as contempt too. The pattern was clear: in those early decades, contempt of Congress was a flexible weapon, wielded against anyone who undermined congressional dignity or obstructed its work.

The Supreme Court Weighs In

In 1821, the Supreme Court put its stamp of approval on this arrangement. The case, Anderson versus Dunn, asked a fundamental question: does Congress actually have the constitutional power to punish people for contempt, or had it been making this up as it went along?

The Court's answer was emphatic. Congress needed this power, the justices ruled, to ensure it was "not exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may mediate against it." In other words, without the contempt power, Congress would be helpless against anyone who wanted to obstruct or humiliate it.

This was what lawyers call an "implied power"—not written explicitly in the Constitution, but necessarily flowing from Congress's other explicit powers. You can't investigate if witnesses can ignore you. You can't legislate if people can destroy the evidence you need.

From Inherent Power to Criminal Statute

For decades, Congress enforced contempt the old-fashioned way. The Sergeant-at-Arms—a congressional officer whose title dates back to medieval England—would physically arrest the offender. The person would be brought to the floor of the House or Senate, where they'd face charges from the presiding officer. Punishment was whatever the chamber decided: usually imprisonment until the person complied, or until the congressional session ended.

This process was cumbersome. Trials on the Senate floor ate up valuable time. And there was a built-in expiration date: under Supreme Court rulings, Congress couldn't imprison someone beyond the end of its current session. A stubborn witness could simply wait out the clock.

So in 1857, Congress created an alternative: a criminal statute making contempt of Congress a misdemeanor prosecuted by the regular court system. Now the Justice Department could handle these cases like any other crime, with the full apparatus of federal law enforcement behind it.

But here's the interesting wrinkle: Congress never gave up its inherent contempt power. It still has the authority to arrest and try people itself, the old-fashioned way. It just stopped using it.

Well, almost stopped.

The Last Inherent Contempt Case

The year was 1934. The country was in the depths of the Great Depression, and a scandal was brewing over airmail contracts. The Senate was investigating whether the Postmaster General had improperly awarded contracts to certain airlines, and they wanted documents from William MacCracken, a lawyer who had previously served as Assistant Secretary of Commerce for Aeronautics.

MacCracken made a fateful choice. He let his clients destroy or tear up documents that were under subpoena. When the Senate found out, they didn't refer the matter to the Justice Department. They invoked their inherent contempt power—the one they hadn't used in decades.

What followed was remarkable. The Senate held a one-week trial right on the Senate floor, presided over by Vice President John Nance Garner in his constitutional role as President of the Senate. After hearing the evidence, the Senate found MacCracken guilty and sentenced him to ten days imprisonment.

MacCracken didn't go quietly. He filed a habeas corpus petition—a request for a court to review whether his imprisonment was legal—arguing that Congress had overstepped its constitutional bounds. The case went all the way to the Supreme Court.

The Court sided with Congress. In Jurney versus MacCracken, the justices ruled that Congress had acted constitutionally. MacCracken served his ten days, becoming the last person punished through Congress's inherent contempt power.

But where did he serve those ten days? Not in a jail cell. The Sergeant at Arms detained him in a room at the Willard Hotel, a grand establishment just blocks from the White House. As imprisonment goes, it could have been worse.

The Modern Machinery

Today, when someone defies a congressional subpoena, the process follows a more bureaucratic path.

First, the committee that issued the subpoena votes on a resolution of contempt. If it's a subcommittee, they report it up to the full committee. The full committee can reject it, accept it but sit on it, or accept it and send it to the House or Senate floor.

On the floor, contempt resolutions get special treatment—they're "privileged," meaning they jump to the front of the line. If the full chamber votes yes, the matter goes to the United States Attorney for the District of Columbia, who is supposed to present it to a grand jury.

Notice that word: "supposed to." This is where things get complicated.

The Executive Privilege Problem

What happens when the person defying Congress works for the President? What if they're refusing to testify because the President told them not to, claiming executive privilege—the idea that the President needs confidential advice and shouldn't have to share every conversation with Congress?

This creates an awkward situation. The contempt referral goes to the Justice Department, which is part of the executive branch, which reports to the President. The Office of Legal Counsel—the Justice Department's internal legal advisor—has taken the position that sitting presidents are protected from contempt by executive privilege. The department is essentially being asked to prosecute someone for following the boss's orders.

Critics say this means "Congress is handcuffed in getting obstinate witnesses to comply." The referral system depends on the executive branch's cooperation, and that cooperation isn't always forthcoming.

The Subpoena Power Explained

Congressional subpoenas are not quite like the subpoenas you might receive from a court. In some ways, they're more powerful.

The Supreme Court established the ground rules in a 1957 case called Watkins versus United States. The justices affirmed that "the power of the Congress to conduct investigations is inherent in the legislative process." Citizens have an "unremitting obligation to respond to subpoenas, to respect the dignity of the Congress and its committees and to testify fully."

Four years later, in Wilkinson versus United States, the Court set out three requirements for a congressional subpoena to be legally valid. First, the committee's investigation must be authorized by its chamber—Congress can't just investigate whatever it wants on a whim. Second, the investigation must pursue "a valid legislative purpose," though interestingly, it doesn't need to result in actual legislation. Third, the specific questions being asked must be relevant to the authorized subject matter.

That second requirement is looser than it might sound. Congress can investigate for lots of reasons: to inform potential legislation, to oversee the executive branch, to educate the public. The courts give Congress wide latitude.

Why Congressional Subpoenas Are Different

Here's something that surprises many people: some of the legal protections you'd have against a court subpoena don't apply when Congress comes calling.

Attorney-client privilege? That normally sacred protection can be overridden by congressional subpoenas. Trade secrets protected under federal law? Congress can demand those too. The Speech or Debate Clause of the Constitution—which protects members of Congress from being sued for their legislative activities—creates what courts call "an absolute bar to judicial interference" with congressional subpoenas.

This means courts generally won't help you quash a congressional subpoena, even if you think it's unfair or overreaching. When executive branch officials refuse to comply, courts often throw up their hands and call it a "political question"—a dispute between the other two branches that judges shouldn't resolve.

The Return of Inherent Contempt?

Remember that old inherent contempt power, the one Congress hasn't used since 1934? In July 2024, the House of Representatives tried to dust it off.

The target was Attorney General Merrick Garland. A congressional committee had subpoenaed audio recordings of former special counsel Robert Hur's interview with President Joe Biden. Garland refused to hand them over.

Some House members proposed using inherent contempt rather than the usual criminal referral process. Their resolution would have imposed a fine of ten thousand dollars per day on Garland until he complied. No courts, no Justice Department, no waiting—just Congress exercising its own constitutional muscle.

The vote failed, 204 to 210. Four Republicans crossed party lines to vote with all Democrats against the measure. Inherent contempt remains unused for ninety years and counting.

But the attempt itself was significant. It showed that some in Congress are frustrated with the limitations of the criminal referral process, especially when the person being referred works for the very department that would do the prosecuting.

The Senate's Civil Option

The Senate has another tool in its kit that the House lacks: civil enforcement. Under Senate rules, the Senate Legal Counsel can file a civil lawsuit against anyone found in contempt.

This works differently from criminal prosecution. The federal court issues an order telling the person to comply with the Senate's demands. If they still refuse, they're now in contempt of court, not just contempt of Congress. The court can impose its own sanctions—potentially including jail time—for defying its order.

This route has been used at least six times. It avoids the awkwardness of asking the Justice Department to prosecute executive branch officials, since the Senate is going directly to the courts.

The Bannon and Navarro Cases

The most consequential contempt of Congress cases in recent memory involved the January 6th investigation. The House Select Committee investigating the Capitol riot issued subpoenas to numerous Trump administration officials and allies. Most complied, at least partially. Steve Bannon and Peter Navarro did not.

Both men argued that executive privilege protected them from having to testify. The Justice Department disagreed and prosecuted them for criminal contempt of Congress. Both were convicted. Both went to prison.

These cases established an important precedent: the contempt of Congress statute has real consequences. For decades, many observers wondered whether anyone would actually be imprisoned for defying Congress. Now we know the answer.

The Penalties Today

If you're convicted of contempt of Congress, you face a misdemeanor charge. The fine ranges from a minimum of one hundred dollars to a maximum of one hundred thousand dollars. The prison sentence ranges from one month to twelve months.

That might not sound severe for a federal crime, but consider: you could face these penalties simply for not showing up when Congress asks, or for refusing to hand over documents. No underlying wrongdoing required. The offense is the refusal itself.

A Delicate Balance

Contempt of Congress sits at the intersection of two competing values in American democracy.

On one side is congressional oversight. For the legislature to function—to write informed laws, to check executive power, to investigate wrongdoing—it needs access to information. Witnesses must testify. Documents must be produced. Without enforcement power, subpoenas become polite requests that anyone can ignore.

On the other side is protection from legislative overreach. The founders feared a too-powerful Congress as much as a too-powerful king. Citizens have rights. Executive branch officials need some confidential space to give candid advice to presidents. Not every congressional inquiry is legitimate.

The contempt power tries to balance these concerns. Courts require congressional investigations to serve valid purposes. The criminal process provides some check on abuse, since prosecutors and judges can decline cases that seem politically motivated. Executive privilege exists as a counterweight, even if its boundaries remain contested.

But as recent cases show, this balance remains unsettled. When a president's allies refuse to testify, and the president claims executive privilege, and the Justice Department is caught in the middle, the system strains. The inherent contempt power—Congress's nuclear option—sits unused but not forgotten, a reminder that the legislature has tools it hasn't fully deployed.

The next time you hear about someone being held in contempt of Congress, remember: this isn't just political theater. It's a centuries-old mechanism for ensuring that when Congress speaks, people listen. And as Peter Navarro and Steve Bannon discovered, those who don't listen may find themselves with plenty of time to think about it—in a federal prison cell.