A few weeks ago the Levin Center had a very interesting program, which you can watch here, entitled “How the Courts are Shaping Congress’ Power to Investigate.” If you are interested in congressional oversight and investigations, it is definitely worth watching because there have been a lot of cases arising out of the Trump presidency which will have a profound impact on the investigatory power.
There was one moment in particular that made my ears prick up. For context, at about 33:21 in the program, former House General Counsel Doug Letter starts discussing the (hypothetical) possibility the House might need to reinstitute the practice of inherent or direct contempt. Readers of this blog know that this involves a process in which the House (or Senate) directs the Sergeant at Arms to arrest a recalcitrant witness, who is then tried before the bar of the House. As Letter explains: “The House could go back to what it did before, about a hundred years ago, [as in the case of] McGrain v. Daugherty, we can start arresting people and then they can raise, you know, a habeas defense.”
Letter then elaborates that in this (again hypothetical) situation “[w]e are going to start having a big beefed-up Sergeant at Arms office and we are going to go start arresting people and there is a House jail, it will be expanded considerably and we will just arrest people from now on.” (emphasis added).
There is a House jail? This is an issue that comes up now and then. Some people say there is a House jail, but most say that there is not. Katherine Tully-McManus investigated this issue at some length a few years ago. It might seem strange that there could be a division of opinion on such a straightforward factual issue, but I think it depends in part what you mean by “House jail.” It appears there is no place in the Capitol complex which is currently used or usable for holding prisoners for any significant length of time (e.g., overnight). As Tully-McManus’s Capitol Police sources note, there is a holding facility at Capitol Police headquarters on D Street NE. It may be that when the Capitol Police arrest people in the Capitol or congressional office buildings, there is a place they are taken before being transported to the D Street facility, though this is sheer speculation on my part.
When many people talk about the “House jail,” however, they mean some area in the Capitol that was used as a jail back in the days when the House actually imprisoned people. I was once told by a senior congressional staffer that such a place exists and he had seen it. Tully-McManus discusses some possible locations where that might be.
So maybe that is what Letter meant. It sounded, though, like he was referring to some place that could be used immediately for holding prisoners if the Sergeant at Arms were to arrest them. Perhaps he was talking about the D Street facility, although I don’t know whether the Sergeant at Arms would be allowed to house prisoners there or if those prisoners would remain in the SAA’s custody if they were at that facility.
Anyway, I thought this was worth adding to the lore of the House jail.