On May 8, two legal developments in the nation’s capital intersected. The House Judiciary Committee voted to hold Attorney General William Barr in contempt of Congress; shortly afterward, a contempt of Congress citation in the House, which dated back to 2012 against then-Attorney General Eric Holder, was settled.
Both AGs had refused to turn over documents subpoenaed as part of a House investigation. Given that Holder ultimately did not face any legal sanctions, what could that mean for Barr?
With the House Judiciary Committee recommending that Barr be held in contempt of Congress and President Donald Trump invoking executive privilege relating to materials sought by Congress to probe obstruction of justice and abuse of power allegations, it would appear that the House and executive branch are on a collision course that may ultimately be decided by the courts.
The conflict relates to the authority of Congress to investigate the president, or any part of the executive branch. While the U.S. Constitution says nothing about congressional investigations and oversight, the U.S. House of Representatives Office of the Historian explains the authority to conduct investigations is implied since the Constitution grants Congress “all legislative powers.” Historians cite the words of George Mason at the Constitutional Convention in 1787 when he said that members of Congress “are not only legislators but they possess inquisitorial powers. They must meet frequently to inspect the conduct of the public offices.”
The U.S. Supreme Court has repeatedly upheld Congress’ authority to investigate if it involves “legislative function,” such as passing of laws or monitoring the actions of government. As early as 1880, in Kilbourn v. Thompson, the Supreme Court suggested Congress may compel testimony akin to a court of law if the congressional chamber has “jurisdiction to inquire.”
By a simple majority, either chamber can vote to hold a person “in contempt” on either a criminal or civil charge if that person refuses to testify, won't provide information requested by the House or the Senate, or obstructs an inquiry by a congressional committee. The criminal law dates to the 1930s and carries penalties of up to a $100,000 fine and a year in jail, although generally the fines are $1,000 or less.
But prosecution of criminal contempt of Congress is rare, for understandable reasons. In the Barr case, for example, if the full House approves the contempt recommendation of its Judiciary Committee, the citation would be forwarded to the U.S. Attorney's Office for the District of Columbia, which can seek an indictment from a grand jury. But federal prosecutors, including all 93 U.S. attorneys, work for the attorney general and are under no legal obligation to pursue a contempt charge against him.
As a 2019 Congressional Research Service report on enforcing congressional subpoenas explains, prosecutors have discretion, even when a statute uses mandatory language. Recent history is sprinkled with such decisions involving both Republican and Democratic administrations.
In the Barr situation, if criminal charges are rejected by the Justice Department, the House likely would seek civil enforcement in U.S. District Court in Washington, D.C. But a closer look at the Holder case underscores the challenges of that approach.
In June 2012, a Republican-controlled House voted to hold Holder in criminal contempt for refusing to turn over documents related to the so-called “Fast and Furious” gun operation, in which Bureau of Alcohol, Tobacco, Firearms and Explosives agents allowed illegal gun sales in order to track the sellers and purchasers, who were believed to be connected to Mexican drug cartels.
This marked the first time a U.S. attorney general was cited for criminal contempt. The Justice Department, which Holder headed for more than six years, declined to pursue the complaint, and the House Oversight Committee subsequently filed a civil complaint, which was contested in the courts for seven years.
A third possible alternative is “inherent contempt,” which is when the House or Senate conducts its own summary proceedings and cites the offender for contempt. The target, however, can seek judicial review by means of a petition for a writ of habeas corpus. In this situation, the accused can be incarcerated until he or she agrees to comply with the subpoena although imprisonment may not extend beyond the end of the current session of Congress. But this path has not been used by either chamber since the mid-1930s.
So, what might happen to Barr? If the House approves a contempt charge, the most viable option would be a civil citation, which would likely set up a contentious court battle. And, as with the case of Holder, this could take some years to resolve.
Updated 6/10/2019 - The House Judiciary Committee and the Department of Justice reached an agreement today that averts any contempt of Congress action against the Attorney General for now.