Multiple members of the House Intelligence Committee proposed a grave response to the dismissive testimony that former White House senior adviser Stephen K. Bannon offered them earlier this week. It was possible, Reps. Jim Himes (D-Conn.) and Thomas J. Rooney (R-Fla.) told CNN, that the former Trump campaign staffer could face contempt-of-Congress charges — a serious-sounding repercussion of Bannon’s apparently-President-Trump-directed refusal to answer a series of questions about Russian interference in the 2016 election.
It sounds serious, but it isn’t.
Randall Eliason, former assistant U.S. attorney for the District and an adjunct professor at George Washington University Law School, explained why in a phone call with The Post.
“In general, the current state of the contempt-of-Congress statute is that it’s fairly toothless,” he said, “because the statute requires Congress to rely on the U.S. attorney in D.C. to enforce its contempt citations — and the U.S. attorney is not required to do that.”
The process works like this. If it desired, the committee could vote to hold Bannon — or anyone else who was stonewalling on answers — in contempt. If it does so, the members would then refer that citation to the U.S. attorney, who then can prosecute or not as she sees fit. (The current attorney in that position is Jessie Liu, confirmed in September.)
That the U.S. attorney would have the flexibility on whether to charge Bannon is, interestingly, a function of a case involving Supreme Court Justice Neil M. Gorsuch’s mother.
Anne Gorsuch served as administrator of the Environmental Protection Agency under President Ronald Reagan. As Eliason explained in a 2015 article, Gorsuch was cited for contempt after being instructed by Reagan to withhold certain documents as part of a House investigation into the EPA because of executive privilege. The Office of Legal Counsel at the Department of Justice determined that, despite the contempt-of-Congress statute saying that citations “shall” be brought to a grand jury, the U.S. attorney instead could use his or her discretion. Assuming that Congress could mandate investigations, it was argued, was a violation of the separation of powers between the legislative and executive branches.
But even if the House did find Bannon in contempt and the U.S. attorney then decided to actually prosecute him and Bannon were actually convicted — a process that could takes months and months — it wouldn’t mean much.
“They still wouldn’t have the information,” Eliason said. “They just got the person convicted of a misdemeanor.”
In criminal contempt citations, people can be compelled to provide the information that is sought or face imprisonment until they do. That’s what happened to the New York Times’s Judith Miller, who refused to provide a grand jury with information about her sources for a story. She was jailed for nearly three months until she agreed to offer testimony.
Congress doesn’t have that power — but it may have more power than it assumes.
Eliason pointed to a May 2017 report from the Congressional Research Service that described an inherent power to hold people in contempt, meaning that it had the power to punish people for contempt even without that power being spelled out in the law. In fact, a long time ago, the House on several occasions tried — and imprisoned! — private citizens, and had that power upheld by the Supreme Court.
“Under the inherent contempt power, the individual is brought before the House or Senate by the sergeant at arms, tried at the bar of the body, and can be imprisoned or detained in the Capitol or perhaps elsewhere,” CRS’s Todd Garvey wrote. (Eliason notes that there is apparently no actual jail in the Capitol.)
“The purpose of the imprisonment or other sanction may be either punitive or coercive,” Garvey continued. “Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least by the House, beyond the end of a session of the Congress) until he agrees to comply.”
Among the remarkable parts of that analysis is that the imprisonment in this case could be coercive — that is, could be used to compel someone to give testimony. It would serve, in other words, the way that imprisoning Judith Miller did. At least until the House adjourned in January 2019, at which point the imprisonment would have to end according to the Supreme Court’s 1821 decision Anderson V. Dunn. John Anderson was arrested and tried directly by the House for attempted bribery. After being found guilty and reprimanded, he sued the House sergeant at arms, Thomas Dunn, for false imprisonment. The high court threw out that suit, arguing that the House indeed had the power it exercised.
This would be an extraordinary step, but, it seems, a viable one. The House (or Senate) could conceivably arrest Bannon (or anyone else), try him and hold him prisoner until he offered the desired testimony. Trials held in the Capitol are rare but not without recent precedent: In 1999, President Bill Clinton was tried on charges of obstruction of justice and lying under oath as part of the impeachment process. In terms of the inherent contempt power, though, are all sorts of other questions about time frames and about how this might differ between the House and the Senate, in part because this is a rarely relied-upon tactic.
Particularly in recent years.
“Between 1795 and 1857, 14 inherent contempt actions were initiated by the House and Senate, eight of which can be considered successful in that the contemnor was meted out punishment, agreed to testify or produce documents,” Garvey writes. In 1857, Congress passed a law establishing the U.S. attorney route — but as an alternative to the more time-consuming process.
In 1934, a former member of the administration of President Herbert Hoover, William MacCracken, was tried by the Senate and sentenced to imprisonment for impeding an investigation into airmail contracts. Chesley Jurney, the Senate sergeant at arms, had no place to hold MacCracken who, after being sentenced, showed up at Jurney’s house and stayed the night. The next day he was confined to a room at the Willard Hotel.
That arrest, apparently the most recent of its kind, led to another Supreme Court case, Jurney v. MacCracken, after MacCracken sought a writ of habeas corpus. In this case, the court again sided with Congress.
Imagine House Sergeant at Arms Paul Irving leading Bannon onto the House floor to face a trial, after the Republican majority demanded he face punishment at their hands. It’s an unlikely scenario that would almost certainly have massive political repercussions that members of the president’s party would probably rather avoid.
Now imagine what happens if Democrats win control of the House this November.