To continue our discussion of Congress’s contempt power (sometimes referred to as the inherent contempt power), let us examine the first case in which the U.S. Supreme Court had occasion to consider the existence and scope of this power. The case arose from an attempt by Colonel John Anderson, who had numerous claims pending against the federal government, to bribe Representative Lewis Williams of North Carolina, the chairman of the Committee on Claims. See Donald G. Morgan, Congress and the Constitution: A Study of Responsibility 102 (1966). When this came to the House’s attention in early 1818, it was understandably enraged and unanimously authorized the Speaker (Henry Clay) to issue a warrant for Colonel Anderson’s arrest. 31 Annals of Congress 581.
The Congressional Debate
After the Sergeant-at-Arms took Anderson into custody, the House proceeded to spend more than a week debating whether it had the power to punish him. The House “retraced the excellent arguments” made in the prior Randall/Whitney and Aurora contempts (see here for details) but, according to Professor Currie, “added little of importance.” David P. Currie, The Constitution in Congress, The Jeffersonians, 1801-1829 315 n. 214 (2001). Be that as it may, Professor Morgan praises the House for conducting a high quality legal argument that “not only provided a guidepost to the Court” but educated its own members and the public on the relevant constitutional principles. Morgan, Congress and the Constitution 119.
The debate was long and often repetitive (or, as one member remarked, “tedious”). It did, however, cover all the key arguments that would subsequently be addressed by the Supreme Court and did so more thoroughly than the Court would. Morgan summarizes the “anti-contempt” side of the argument as taking “the strict constructionist line in the interest of individual liberty, state reserved powers, and an exclusive judicial cognizance of contempts.” Morgan, Congress and the Constitution 104. The major points of this side included: (1) the framers were well acquainted with the undefined and encroaching nature of parliamentary privilege in Britain; (2) by carefully enumerating certain privileges in the Constitution, they evinced an intent to exclude others historically claimed by Parliament or the state legislatures; (3) recognizing unenumerated privileges would be inconsistent with the limited nature of congressional power under a written constitution, separation of powers principles (which prohibit Congress from exercising judicial powers), and specific constitutional protections of individual liberties; and (4) once unenumerated privileges are recognized, there is no logical stopping point in terms of the House’s authority to define the scope of contempt/breach of privilege or to impose punishment therefor.
On the other side, the “[s]upporters of the power relied on broad construction, congressional precedents, and practical necessities.” Morgan, Congress and the Constitution 104. Typically, they acknowledged that British parliamentary privileges were not inherited by Congress in any direct sense. However, they also denied that British practices were simply a product of unique historical circumstances or a feature of the unlimited sovereignty enjoyed by Parliament. Instead, they contended that the precedents of Parliament, as well as of the colonial and state legislatures, were evidence that the power to punish for contempt was an inherent and necessary attribute of any legislative body.
A critical aspect of the debate was the concession by most (though not all) of those on the “anti-contempt” side that the House could punish nonmembers for contempts committed within the walls of the House. Seizing on this concession, their opponents pointed out, somewhat ad nauseam, that they had undermined their own enumeration argument. If the House had some unenumerated power to punish contempt, why should that power not extend to Anderson’s flagrant attempt to corrupt the institution? No good answer to this question was offered. (As we shall see, this point would also play a key role in the Supreme Court’s decision).
Another major point of contention was the “anti-contempt” side’s claim that contempt was an inherently judicial power. In response, it was pointed out that “[b]oth Houses of Congress have powers strictly judicial in their nature and application.” 31 Annals of Congress 638 (Rep. Mercer); see also id. at 697 (Rep. Smyth points out the House is a court “with authority to try certain causes”). As noted in my last post, impeachment was offered as a prime example of a judicial process for which the House needed the contempt power. See also 31 Annals of Congress 701-02 (Rep. Settle). In particular, it was noted that the House needed a power of punishment independent of the executive, which might be the source of corruption it was trying to investigate in the first place. Id. at 634 (Rep. Tucker). Again, the “anti-contempt” camp seemed to have no rejoinder to this argument.
There was also some discussion of what punishments could be inflicted for contempt (with opponents of contempt suggesting they might include indefinite detention, corporal punishment, or worse). Supporters of contempt asserted because the power was one of self-protection, punishment was limited to imprisonment while the House was in session. 31 Annals of Congress 691 (Rep. McLane); id. at 703 (Rep. Settle). No one directly stated that the House had the power to fine, but there were occasional approving references to the fact that courts could impose fines for contempt. See, e.g., id. at 697 (Rep. Smyth). And one contempt opponent accused supporters of wanting to authorize the House “to fine and imprison at discretion.” Id. at 760 (Rep. Beecher).
At the end of the lengthy debate, the House rejected the arguments against recognizing the contempt power. 31 Annals of Congress 776. Anderson was tried and found guilty of contempt. Id. at 789. He was then brought to the bar of the House, reprimanded by the Speaker, and discharged from custody. Id. at 789-90.
Anderson Sues and the House Lawyers Up
After his release, Anderson commenced an action in trespass against the Sergeant-at-Arms (Thomas Dunn) for assault and false imprisonment. This action did not technically challenge Anderson’s conviction or punishment for contempt, but rather his arrest and imprisonment by the Sergeant-at-Arms pursuant to the warrant initially issued by the Speaker. The case was ultimately heard by the Supreme Court, which unanimously found in favor of the Sergeant-at-Arms. See Anderson v. Dunn, 19 U.S. 204 (1821).
Importantly, in my view, the Sergeant-at-Arms (and therefore the interests of the House) was represented in the Supreme Court by none other than our old friend William Wirt. See United States v. Providence Journal Co., 485 U.S. 693, 709-13 (1988) (Stevens, J., dissenting). Although Wirt was serving as Attorney General at the time, he was separately retained and compensated by the House in his private capacity. See American State Papers, Misc. vol. 2, at 930-32 (1834).
Why is this important? First of all, Wirt’s representation must have signaled to the Court that the executive branch was supportive of the House’s position or, at the very least, that there was no conflict between the position of the House and the views/interests of the executive. Indeed, had such a conflict been perceived, Wirt presumably would not have accepted the representation. See American State Papers, Misc. vol. 2 at 931 (Committee on the Judiciary notes that it is proper for the Attorney General to accept such outside employment “where that could be done without prejudice to the faithful performance of his stated duties”).
Second and relatedly, by retaining Wirt the House effectively abandoned the more Blackstonian conception of its position. During the debate on Anderson’s contempt some members had waxed eloquent about ensuring the House could protect its privileges without relying on the other branches. See, e.g., 31 Annals of Congress 699 (“it would be extremely unjust to intrust the privileges of the House to the Judiciary”) (Rep. Smyth). Here, however, the House was asking the chief legal officer of the executive branch to present its case to the highest tribunal of the judicial branch; it could hardly expect a robust Blackstonian presentation.
Indeed, Wirt’s argument was restrained and Madisonian. He disclaimed reliance on the common law or the practice of the British Parliament, but rather stressed the “absolute necessity” of the contempt power, which was therefore “incidental to all Courts of justice, and even to the most inferior magistrates.” 19 U.S. at 219. Moreover, because Anderson was challenging his arrest warrant, which gave no reason for the arrest, on its face, the case must be dismissed if there were any circumstances under which the House could punish contempt. 19 U.S. at 220. Clearly there were, Wirt contended, because even Anderson conceded the House could punish certain contempts within its walls. Id. at 219.
Even more than this, though, Wirt stressed that the House “has the exclusive power of impeachment, which necessarily involves the authority of compelling witnesses, and punishing them for contempt.” Id. Thus, “[e]ven Lord Holt, who was an enemy of the extravagant privileges of Parliament, admits that the power of impeachment residing in the House of Commons, necessarily involved the authority of committing the accused, and of punishing contempts.” Id. at 219-20. Since there was nothing in the record to show the House was not exercising the power of impeachment or one of its other judicial powers, the case could be dismissed on that basis alone. Id. at 220.
Finally, Wirt argued that “a legislative body has, from the necessity of the case, a right to commit persons for contempt, in breach of their privileges; that they are the exclusive judges whether those privileges have been violated in the particular instance, and that their decisions upon the subject cannot be questioned in any other Court or place. Id. at 222-24. Although this statement has a Blackstonian ring, Wirt’s reliance on the English case of Burdett v. Abott undercut any such interpretation. As explained by Lord Erskine in the extensive excerpt from Burdett set forth by Wirt, the House of Commons had placed itself in the position of an ordinary litigant and would have submitted to an adverse judgment of the court. Id. at 223 (footnote beginning at 221). Thus, while (some of) Wirt’s clients may have expressed indignation that the House’s privileges would be dependent on the other branches, Wirt essentially conceded the point at the outset.
The Supreme Court Decision
The Court accepted Wirt’s framing of the issue, which came “down to the simple inquiry, whether the House of Representatives can take cognizance of contempts committed against themselves, under any circumstances?” 19 U.S. at 224-25 (emphasis added). It proceeded to answer this question by noting that it was “universally acknowledged” that courts had an inherent power to punish contempt. Id. at 227. Denying a similar power to the House would leave it “exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it.” Id. at 228; see also id. at 228-29 (“That a deliberate assembly, clothed with the majesty of the people, . . . should not possess the power to suppress rudeness, or repel insult, is a supposition to wild to be suggested.”). Furthermore, as Anderson acknowledged the House’s power to punish contempts in its immediate presence, this both was sufficient to deny him relief (because there was nothin in the record to show Anderson had not been punished for an offense of that character) and to undermine his principal argument (that the House could exercise no punitive power not expressly set forth in the Constitution). Id. at 229. Thus, the Court held in the House’s favor.
The Anderson decision has been subject to different interpretations. Some have read it as validating “a broad power of contempt, unreviewable by the courts.” Josh Chafetz, Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions 230 (2007). Professor Currie, on the other hand, reads it as upholding the contempt power only “on the narrowest possible grounds.” David P. Currie, The Constitution in Congress: The Federalist Period, 1789-1801 237 (1997). Thus, while the Anderson case established that each house of Congress had some power to punish nonmembers for contempt, the scope of that power and the extent to which its exercise would be subject to judicial review were left to future cases.
One question the Court directly addressed related to the extent of punishment that could be imposed. In what can only be considered dicta (as Anderson was not even challenging his punishment), the Court indicated that punishment must be limited to “‘the least possible power adequate to the end proposed;’ which is the power of imprisonment.” 19 U.S. at 230-31 (italics in original). Moreover, the duration of imprisonment must be limited to the life of the legislative body, and therefore the prisoner must be discharged when “the legislative body ceases to exist on the moment of its adjournment or periodical dissolution.” Id. at 231.
Anderson has been cited for the proposition that Congress can impose fines as a sanction for contempt. The basis for this claim is that the Court stated “the Courts of justice are vested, by express statute provision, with power to fine and imprison for contempts,” but further suggested that they would enjoy this power even “without the aid of the statute.” 19 U.S. at 227. Since the Court analogized the House’s contempt power to that of the courts, the argument goes, it implicitly blessed the imposition of fines by legislatures as well.
The Anderson Court’s language on this point is, to say the least, unclear. Its reference to the “legislative assertion of this right,” which some read as referring to the contempt action against Anderson, actually appears to refer to the statute authorizing courts to punish contempt. In any event, the Court never expressly approves legislative imposition of fines and its most direct comments could be read to limit punishment to imprisonment. In short, the Court’s dicta provides slender support, if any, for legislative authority to impose fines.
One part of the Court’s discussion is of interest in this regard, however. It acknowledges that “from the history of the practice of our legislative bodies, [penalties for contempt might] be thought to extend to other inflictions.” 19 U.S. at 231. But the Court rejected this conclusion because the “other inflictions” were “mere commutation for confinement.” Id. In other words, an “infliction” other than confinement (such as a fine) might be acceptable so long as it was a “mere commutation for confinement.”
Mark that down. It might be important.