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House panel’s contempt efforts face uncertain legal road

With the House Judiciary Committee recommending that Attorney General William Barr should be cited for contempt of Congress, a newly posted ABA Legal Fact Check details the legal difficulties ahead to enforce such a citation.

The U.S. Constitution does not explicitly empower Congress to conduct investigations and oversight, but the authority is implied since the Constitution gives Congress “all legislative powers.” Constitutional scholars cite the words of George Mason at the Constitutional Convention in 1787: “(Members) 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 matters that involve “legislative function,” such monitoring the actions of government.

On May 8, the Democratic-controlled Judiciary Committee voted along party lines to cite Barr after President Donald Trump invoked executive privilege and refused to turn over materials sought to probe obstruction of justice and abuse of power allegations. The resolution now goes to the full House.

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 up to a $1,000 fine and a year in jail.

But prosecution of criminal contempt of Congress is rare. Any criminal citation would be forwarded to the local U.S. Attorney's Office, and federal prosecutors are under no legal obligation to pursue a contempt charge.

Under such a scenario, the House can seek civil enforcement in U.S. District Court. That is the course the then Republican-controlled House followed in 2012, when it sued Obama administration Attorney General Eric Holder for refusing to turn over documents related to a gun-running investigation. But it took seven years for the Holder case to be settled.

A third alternative is “inherent contempt,” which is when the House or Senate conducts its own summary proceedings and cites the offender for contempt. The accused can be incarcerated, although imprisonment may not extend beyond the end of the current session of Congress. But this path has not been used since the mid-1930s.

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