House Democrats are so frustrated with President Trump’s administration and his allies blocking their investigative efforts that some have seriously encouraged invoking a long-dormant power Congress has to jail or fine uncooperative witnesses. House Judiciary Chairman Jerrold Nadler (D-N.Y.), the lawmaker leading the impeachment inquiry, indicated some support for the idea, The Washington Post reported.
It sounds extreme, but it’s an authority so integral to Congress that it’s in the name “inherent contempt.” Congress used that authority throughout much of its history to enforce its ability to subpoena people and documents, though it hasn’t been used in nearly a century.
Under inherent contempt, Congress could fine people who aren’t cooperating with them today. At the top of their list for any of these punishments might be the acting director of national intelligence, Joseph Maguire, who is withholding a whistleblower complaint about the president, or former Trump campaign manager Corey Lewandowski, who complied with a subpoena but mocked Congress once there.
Some House Democrats are talking about taking punishment into their own hands via inherent contempt because they’re frustrated with Democratic leadership for not more fully embracing their impeachment inquiry.
But if past is any precedent, Congress could have a hard time starting to use it again.
Let’s start with a better understanding of what Congress can do to compel someone to talk and how inherent contempt fits into those efforts.
The most common tactic for compelling someone to speak to Congress is to subpoena them. It’s a crime not to comply with a subpoena issued by a congressional body, punishable by “a substantial fine and imprisonment for up to one year,” according to the nonpartisan Congressional Research Service.
If lawmakers find someone in contempt of Congress for not cooperating with a subpoena, it’s the executive branch’s duty to charge one of its own allies with a crime. Congress can also sue people (as they are with former White House counsel Donald McGahn, a key witness in the report by former special counsel Robert S. Mueller III). But that can take months to come to a conclusion, and the threat of a lawsuit hasn’t compelled any other Trump allies to testify.
So this Congress has to dig a little deeper to figure out what to do. For much of American history, the Congressional Research Service says, Congress just arrested people who wouldn’t comply and held them themselves. That process is called inherent contempt because the theory goes that the ability to hold people in contempt of Congress is inherent in Congress’s power, and Congress itself has the ability to enforce it.
Except that meting out punishment for refusing to cooperate is a logistical headache for Congress and is politically risky. I talked to historians about this in May, when Congress was on its way to holding Attorney General William P. Barr in contempt over a battle for information on the 2020 citizenship question. This was floated as a way to punish Barr for withholding information.
As I wrote then, every time Congress has arrested someone, it has had to improvise how to hold them, and the jailing itself has often backfired in terms of public sentiment and Congress’s overall goal of getting information.
In the mid-19th century, Congress jailed a journalist who proudly datelined his stories “Custody of the Sergeant at Arms.” They jailed a wealthy abolitionist who spent his time receiving sympathetic visitors and a real estate speculator who racked up the equivalent of $12,000 in food on Congress’s dime. A Herbert Hoover official was held at the posh Willard Hotel.
Also important: Congress doesn’t have a jail. It has held people in committee rooms before and could use the D.C. jails if it gets permission from the city. But for the most part, inherent contempt hasn’t proved to be the punishment lawmakers wanted it to be.
Today, inherent contempt is arguably more drastic than impeachment because of how rare and dramatic it would be. That’s a problem for Democrats in Congress who are worried that impeachment would give Trump a boost in public sentiment.
But the fact that a centuries-old, somewhat crude enforcement tool is even being considered at the highest levels of Congress in 2019 underscores just how much the Trump administration’s disregard for the democratic process has kneecapped Congress’s ability to, well, do anything to oversee the executive branch. They’re out of options except to create their own jail of sorts.