Month: September 2019

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Contempt and Charles Pinckney

Whether Congress (or, more precisely, each house of Congress) has the power to punish nonmembers is a question not directly addressed by the Constitution. See Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers 171 (2017) (“Unlike the congressional houses’ authority to punish their members . . ., their authority to punish nonmembers has no explicit textual basis in the federal Constitution.”); Josh Chafetz, Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions 212 (2007) (“The Houses’ power to punish non-Members for contempt rests upon shakier footing than their power to punish Members.”). Like whether a sitting president can be indicted or prosecuted, the existence (and scope) of the congressional contempt power was understood to be an open question from the earliest days of the Republic. But while the Supreme Court has never had occasion to address the former question, it has seemingly resolved the latter, having repeatedly upheld the exercise of the contempt power against nonmembers.

I say “seemingly” because, as we shall see, there is reason to believe the executive branch would relitigate this fundamental issue should the necessity arise. Therefore, in today’s post I will lay out the background of the original debate about the contempt power through the story of Charles Pinckney, who was (among other things) a delegate from South Carolina to the Philadelphia Convention. I do so not only because it is an interesting and untold (or at least undertold) story, but because it may very well play a significant role in any future litigation over the validity of the contempt power. For a foretaste of this argument, see Professor Michael McConnell’s claim in a recent Fox News interview that the Convention “voted down” Pinckney’s proposal to give Congress the contempt power. (This claim is not exactly accurate, as the Convention did not actually take a vote on the proposal, but it is close enough for government work.) Continue reading “Contempt and Charles Pinckney”

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Inherent Contempt and Impeachment

Recently the Good Government Now organization (with which I am loosely affiliated) has been advocating the revival of inherent contempt as a means of compelling executive branch officials to provide information demanded by Congress. As you probably know (if you read this blog), inherent contempt allows either house of Congress to arrest individuals who defy its orders and imprison them until they comply. Under a proposal by my friend and former colleague Mort Rosenberg, the House would adopt a new inherent contempt procedure in which fines, rather than imprisonment, would be the principal sanction to compel executive branch officials to comply with subpoenas and other demands for information.

While I do not object to the use of inherent contempt in the proper circumstances, I have long been skeptical of using it as a means of resolving legislative-executive disputes over information. This is so both for constitutional and practical reasons. The constitutional issues we will get into in more detail in future posts. For now, the important point is that those issues arise primarily in the context of ordinary congressional oversight. The calculus is different in the context of a judicial proceeding such as impeachment. The argument for employing inherent contempt against recalcitrant witnesses, including executive branch officials, in an impeachment proceeding is constitutionally much stronger for reasons I will endeavor to explain in upcoming posts.

The practical problems, on the other hand, are another matter. See Andrew McCanse Wright, Congressional Conflict and Congressional Oversight, 98 Marq. L. Rev. 881, 933 (2104) (“To say the least, it would be impractical and unwise for congressional security forces to attempt to detain executive branch officials and haul them off to the congressional brig, although commentators occasionally call for it.”).  For one thing, there is not actually any “congressional brig,” at least not one suitable for holding anyone for a significant period of time. For another, there is the “specter of interbranch violence,” particularly for detainees that have their own security details. See id. These problems are not ameliorated by the fact that the proceeding involves impeachment rather than oversight.

Arguably, the use of fines could help to address the practical problem. As a general rule, I doubt that Congress has the authority to impose fines as a form of punishment, but I think there may be a way to use them in the context of an impeachment proceeding that would stand up in court. Therefore, if the House is considering formally authorizing an impeachment proceeding, it should seriously consider a provision to authorize the use of inherent contempt, including monetary fines, against those who withhold information from the inquiry. Importantly, however, this authority should be limited to impeachment.

I will lay out the reasons for my position in a series of posts, beginning with some historical background on legislative privilege and contempt.