Some Democrats have urged that the arrest powers be dusted off and used against administration officials and others who are defying the House Democrats’ impeachment investigation of President Trump, which resumes this week.
Mick Mulvaney, the acting White House chief of staff, and Rudolph W. Giuliani, the president’s private lawyer, have refused to cooperate with the House Intelligence Committee probe of Trump’s dealings with Ukraine. Former national security adviser John Bolton said he would appear before Congress only if a judge orders him to do so. Bolton’s former deputy, Charles Kupperman, filed a lawsuit asking the courts to decide if he has to testify. Trump has tweeted that those who propose arresting recalcitrant witnesses are “despicable.”
Use of the inherent contempt power dates back to 1795, when Congress had three men arrested for offering bribes to lawmakers. The procedure fell into disuse because it is “cumbersome, time consuming and relatively ineffective,” according to the Congressional Research Service. Instead, cases are turned over to the courts. But the MacCracken case, which went all the way to the U.S. Supreme Court, could provide a precedent for the current standoff.
In 1933, Sen. Hugo Black (D-Ala.) began an investigation into allegedly noncompetitive awards of airmail contracts in the previous administration of Republican President Herbert Hoover. Black charged that in 1930, mail operators met secretly in a room next to the office of the postmaster general to discuss “the dividing up” of federal airmail routes. Running the meeting was MacCracken, then the nation’s first assistant secretary of commerce for aeronautics. Afterward, Black said, the postmaster general awarded routes “unjustly, unfairly and illegally.”
After Franklin D. Roosevelt was elected president in 1932, MacCracken became the airmail industry’s Washington lawyer and lobbyist. When Black’s Special Committee to Investigate Air Mail and Ocean Mail Contracts sought to seize his records, MacCracken resisted, claiming lawyer-client privilege. Black, a future Supreme Court justice, replied, “Even when a man is employed as a lawyer, his activities must be legal and in conformance with sound public policy to warrant the privilege of secrecy regarding them.”
The tug of war exploded at a Senate hearing when MacCracken revealed he had allowed officials of two companies to remove some documents from his office in the National Press Building. Even one of the lawyer’s defenders on the committee, Sen. Wallace White (R-Maine), declared that was a “fool thing to do.”
Northwest Airways executive L.H. Brittin took personal letters from the files, tore them up and threw them in a wastebasket. The secretary of the president of Western Air Express also removed some papers. One of Western’s vice presidents was Herbert Hoover Jr., son of the former president.
The committee unanimously voted to seize the records and instructed Senate Sergeant-at-Arms Chesley Jurney to arrest MacCracken. Jurney held the lawyer in his Senate office for an hour before turning him over to MacCracken’s private attorney. The Senate then charged MacCracken and the three air company officials with contempt and scheduled a trial before the entire Senate of 96 members. Vice President John Nance Garner would preside as judge. Meanwhile, Roosevelt canceled all airmail contracts and temporarily turned delivery over to the U.S. Army.
The day of the trial MacCracken failed to show up.
“While senators listened in astonishment, and the galleries remained as silent as if empty,” the Associated Press reported, a representative for MacCracken read a letter stating that his appearance would violate his constitutional rights. The Senate voted unanimously to instruct the sergeant-at-arms to find MacCracken and “produce his body” at the Senate trial.
The 46-year-old MacCracken mysteriously disappeared for a couple of days. Then late on Friday night, he turned up at the Washington apartment of Jurney, the sergeant-at-arms. “Lock me up,” he demanded. Jurney, suspecting a legal trap, declined to arrest MacCracken and instead had him stay the night.
Thus, “one of the most hilarious legal mix-ups in capital annals” found MacCracken “ensconced in the apartment of the Senate sergeant-at-arms, where he insisted he was under arrest for contempt of the Senate,” the Associated Press reported. Meanwhile, Jurney, “the involuntary host, insisted equally as firmly that MacCracken was not under arrest, because the necessary warrant was locked in a vault at the Capitol.”
Further complicating matters was the arrival of a deputy marshal with a writ of habeas corpus ordering that MacCracken be taken to the District of Columbia Supreme Court. The writ had been obtained by MacCracken’s lawyer to try to obtain his client’s freedom before Jurney was able to deliver him to the Senate. Jurney argued that he couldn’t surrender his prisoner because he couldn’t actually arrest him before the Senate resumed business on Monday.
A D.C. Supreme Court judge wasn’t amused by MacCracken’s legal maneuvering. “The court finds you guilty of contempt,” the judge ruled. “The fine is $100 or 24 hours in jail.” MacCracken paid the fine, and Jurney held him in custody over the weekend in a room at the Willard Hotel.
When the Senate trial resumed on Monday, Garner, the vice president, read the contempt citation to MacCracken, “who stood stiffly at attention. He was glum but defiant,” the Associated Press reported. After that day’s session, the MacCracken entourage trudged back to the D.C. Supreme Court to try to get the trial delayed. The court again upheld the Senate, the AP said, and “Jurney took his prisoner to comfortable rooms at the Willard.”
The Senate found MacCracken and Brittin guilty of contempt and sentenced them to 10 days in jail. MacCracken arranged $5,000 bail and appealed his conviction in the courts.
“I will not serve the sentence unless the court says I have to,” he declared.
In July, the District of Columbia Court of Appeals reversed the original ruling and said the Senate didn’t have the right to jail MacCracken. The lawyer’s relief was short-lived. In February 1935, the U.S. Supreme Court unanimously upheld the Senate’s arrest authority. Justice Louis Brandeis, writing for the court, confirmed the power of Congress to punish for contempt is “governed by the same principles as the power of the judiciary to punish for contempt.”
In late February, MacCracken, still maintaining his innocence and now secretary of the American Bar Association, began serving his 10-day sentence at the same District of Columbia jail where oil magnate Harry Sinclair served time after his conviction in the Teapot Dome scandal.
The warden said MacCracken would work as a clerk, a post that came with privileges such as sleeping in a dormitory on a bed with sheets instead of a cot in a cell. He also got a better dinner menu of “cold shoulder, cheese, fried pineapple, creamed potatoes, fruit Jell-O and coffee.”