Congress's contempt power: Three mechanisms for enforcing subpoenas

Abstract

Since the beginning of the 110th Congress, increased oversight by congressional committees into activities of the President and Executive Branch has sparked renewed interest in both political and legal questions involving the separation of powers. Congressional subpoenas for general information, documents, and testimony from high-ranking executive officials has not only generated significant inter-branch conflict but has also developed into a controversy that could result in a legal standoff between Congress and the President. Congress's ability to obtain access to information, whether in the form of documents or testimony, from the Executive is primarily enforced through political negotiation and accommodation that generally take place outside of public view. Contempt may be used by Congress to coerce compliance, punish the contemnor, and/or remove the obstruction. This paper focuses on Congress's contempt power and congressional authority to enforce its requests for information, documents, and testimony from both private individuals and the Executive Branch. First, it examines the source of Congress's contempt power. Next, it discusses and analyzes the procedures associated with each of the three different types of contempt proceedings—inherent contempt, statutory criminal contempt, and statutory civil contempt. Finally, this paper concludes by addressing several of the unique constitutional, legal, and political problems that are associated with congressional contempt proceedings against Executive Branch officials.