National Review’s legal contributing editor, Andrew McCarthy, has written two recent columns regarding the House’s use of criminal contempt. One involves Donald Trump’s political associate, Steve Bannon, who has been ordered to report to prison on July 1 to serve a four-month sentence for his refusal to comply with a subpoena to testify before the January 6 select committee. The second involves the House’s vote to hold the current attorney general, Merrick Garland, in contempt for failing to comply with the House Judiciary Committee’s subpoena for the recording of President Joe Biden’s interview with former special counsel Robert Hur.
I have some significant disagreements with McCarthy’s views, which I will discuss in future posts. Today, however, I want to provide some background on the relevant law, which is necessary for understanding the context of these disagreements.
Both matters arise under 2 U.S.C. §194, which provides that whenever a witness is summoned to testify or produce documents by a congressional committee and fails to appear, answer pertinent questions, and/or produce the documents at issue
and the fact of such failure or failures is reported to either House while Congress is in session . . . it shall be the duty of the [] President of the Senate or the Speaker of the House, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.
You may notice that there is quite a bit of mandatory language in this statutory provision, i.e., references to “duty” and/or what a particular officer “shall” do. I particularly like the part which states “it shall be the duty of the presiding officer to certify a contempt report and then helpfully explains, in case the meaning of “duty” is unclear, “and he shall so certify.” This reminds me of the instructions for the Holy Hand Grenade of Antioch.
The underlying offense of contempt of Congress is defined by a separate statutory provision, which provides:
Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.
2 U.S.C. § 192.
On its face this provision requires “[e]very person” summoned by the authority of either house of Congress to produce information demanded by a congressional committee, but it also implicitly or explicitly suggests certain limits to this legal duty. First, the information must relate to a “matter under inquiry” by the committee. Second, at least in the case of a refusal to answer questions, the question must be “pertinent to the matter under inquiry.” Third, the default must be “willful,” which suggests that “non-willful” defaults (whatever that may mean) do not constitute a crime. Finally, it is well known that there are certain constitutional privileges which apply in congressional proceedings, the least controversial of which is the privilege against self-incrimination. It may therefore be inferred that the statute does not (and could not) make it a crime to assert a valid constitutional privilege.
The last of these raises another problem. Who decides if a witness has asserted a valid privilege? Put another way, what happens if a witness asserts a privilege and the committee decides that it does not constitute a valid reason for refusing to comply with its demands for information?
Continue reading “Bannon, Garland and Contempt of Congress: Part I (Legal Background)”