Many of the momentous social conflicts of the 20th century have been resolved in the context of contempt cases. These clashes arose in courts and in Congress, particularly in cases arising from the McCarthy-era investigations into subversion and the Senate's labor racketeering hearings several decades ago.
It should come as no surprise if the Iran-contra hearings lead to contempt cases as well. In the Watergate congressional investigations, and to date in the Iran-contra inquiry, witnesses cooperated with Congress, even if reluctantly, under pressure, and at personal risk. That fact is unique in contentious investigations, and it may not continue.
Of the recent cast of characters, Lt. Col. Oliver L. North and retired Air Force general Richard V. Secord already face contempt-of-court citations, and these cases may be just the beginning. Some subpoenaed witnesses may prefer to face contempt charges for noncooperation rather than the sanctions and public censure that would be the alternative if they were to testify and turn over incriminating records.
Contempt can arise in three situations during the current hearings. Congress can seek the indictment of a recalcitrant witness for contempt of Congress; it also can go to court for an order directed at its witness, and violation of that order would constitute contempt of court; or it could resort to its historic power to summarily jail a witness to coerce cooperation. None of these powers is without problems.
The law books often state that contempt is "sui generis" because it has unique features. Courts and Congress use contempt to coerce compliance as well as to punish noncompliance with their orders. Both bodies treat disobedience to their orders as a crime in some instances, but they also claim the inherent remedial -- as opposed to punitive -- right to use what is called civil contempt to coerce compliance. Exercising this authority, they can summarily, theoretically indefinitely, incarcerate recalcitrant witnesses who refuse to testify or produce requested records until there is compliance with their order. The witness is simply hauled off to jail without the benefit of any further hearing until he decides to cooperate. The rationale for imprisoning someone without a trial by jury is that the contemptuous witness "holds the key to the jail"; he or she need only comply to be freed.
In some cases involving clashes with Congress, recalcitrant witnesses have been locked up summarily. This was done and condoned by the Supreme Court for the first time in 1795, and has happened occasionally thereafter, most recently in 1934. State legislatures have used this power more recently.
Since 1857, there also has been a federal criminal contempt-of-Congress statute under which witnesses can be indicted in the same way as they would be for any other crime.
In addition, the ethics in government act of 1987 added, as part of its post-Watergate reforms, a procedure for the Senate legal counsel to seek judicial enforcement of congressional subpoenas. If the court orders the congressional witness to comply with the subpoena and he or she refuses, the court can then hold the witness in contempt of court.
Over the years, as Congress rarely used its summary power and instead relied on the criminal contempt-of-Congress statute, the nature of the power changed from one of coercing cooperation to one of punishing recalcitrance. And, as the number of congressional investigations grew (285 investigations between 1789 and 1925, and 225 between 1950 and 1952), so too did the number of contempt citations (from 1857 to 1949, Congress cited 113 witnesses for contempt, while 117 citations were issued in 1950-1952).
Witnesses cited for contempt of Congress have fared relatively well before the courts that have tried them. Grand juries do not always return indictments for contempt of Congress, and of those indicted, many are acquitted, or have their convictions reversed on appeal. Of 133 contempt citations issued by the House Un-American Activities Committee between 1950 and 1966, only nine resulted in convictions.
Perhaps these statistics partially accounted for the congressional shift in favor of civil proceedings in court. According to Senate legal counsel Michael Davidson, the civil procedure for enforcement of subpoenas, which offers a prompt hearing on a witness's objections, including any constitutional privileges he wishes to raise, is currently the procedure of choice for most congressional committees.
In the Iran-contra investigation, indicting recalcitrant witnesses for contempt could play into a hostile witness's hands and not get the committees the information they seek. But where the prospective witness chooses not to cooperate with Congress, it may have no choice but to grant immunity, and to cite that witness for criminal contempt. However, this power is punitive not coercive, and may not effectively aid Congress in its effort to establish facts.
It would be interesting and ironic to see whether, out of frustration, Congress returns to the more archaic form of jailing uncooperative witnesses during its session if the more modern forms of contempt of Congress or contempt of court prove ineffective in its search for information.
Each of Congress' three possible routes in contempt cases poses problems. Criminal trials for contempt of court or of Congress may be ineffective ways to get the information Congress seeks, while summary incarceration would be likely to raise howls that we have returned to obsolete and autocratic powers that are offensive to modern notions of civil liberties. The writer is a Washington lawyer. BY TOM BRINA