The Historical Process: Inherent Contempt Historically, the House and Senate relied on their own institutional power to not only enforce congressional subpoenas, but also to respond to other actions that either house viewed as obstructing their legislative processes or prerogatives. 100 Indeed, the criminal contempt statute was not enacted until 1857, and the courts do not appear to have entertained a civil action to enforce a congressional subpoena against an executive official until the Watergate era.101 For
much of American history the House and Senate instead used what is known as the inherent contempt power to enforce their investigative powers.
The inherent contempt power is a constitutionally based authority given to each house to unilaterally arrest and detain an individual found to be “obstruct[ing] the performance of the duties of the legislature.” 102 The power is therefore broader in scope than the criminal contempt statute in that it may be used not only to combat subpoena non-compliance, but also in response to other actions that could be viewed as “obstructing” or threatening either house’s exercise of its legislative powers.103 In practice, the inherent contempt power has been exercised using a multi-step process. Upon adopting a House or Senate resolution authorizing the execution of an arrest warrant by that chamber’s Sergeant-at-Arms, the individual alleged to have engaged in contemptuous conduct is taken into custody and brought before the House or Senate.104 A hearing or “trial” follows in which allegations are heard and defenses raised.105 Although generally occurring before the full body, it would appear likely that the contempt hearing could also permissibly take place before a congressional committee who reports its findings to the whole House or Senate.106 If judged guilty, the House or Senate may then direct that the witness be detained or imprisoned until the obstruction to the exercise of legislative power is removed. 107 Although the purpose of the detention may vary, for subpoena non-compliance the use of the power has generally not been
punitive.108 Rather, the goal is to detain the witness until he or she discloses the information sought, but not beyond the end of the Congress.109
Despite its title, “inherent” contempt is more accurately characterized as an implied constitutional power. 110 The Supreme Court has repeatedly held that although the contempt power is not specifically granted by the Constitution, it is still “an essential and appropriate auxiliary to the legislative function,” and thus implied from the general vesting of legislative powers in Congress.111 The Court has viewed the power as one rooted in self-preservation, concluding that the “power to legislate” includes an “implied right of Congress to preserve itself” by dealing “with direct obstructions to its legislative duties” through contempt.112
The Court has also suggested that Congress may effectuate this implied power through the Necessary and Proper Clause, which authorizes Congress to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers . . . .”113 The 1857 criminal contempt provision, for example, has been viewed as “an act necessary and proper for carrying into execution the powers vested in . . . each House.” 114 To that end, it seems understood that the criminal contempt statute was intended to supplement each house’s inherent contempt power, rather than to replace it. The Supreme Court has specifically articulated this view and, in fact, gone further to suggest that “Congress could not divest itself, or either of its Houses, of the essential and inherent power to punish for contempt.” 115 Historical practice also supports this conclusion, as Congress continued to use the inherent contempt power after enactment of the criminal contempt statute.116
As applied to subpoena enforcement, the Supreme Court has affirmed the existence of each house’s constitutionally based authority to arrest and detain individuals for refusing to comply with congressional demands for information.117
The 1927 case of McGrain v. Daugherty may be viewed as the high-water mark of the judiciary’s recognition of this power.118 McGrain arose from a Senate investigation into the alleged failure of the Attorney General to prosecute federal antitrust violations associated with the Teapot Dome Scandal.119 As part of that investigation, a subpoena was issued to Mallie Daugherty, the brother of the Attorney General and president of an Ohio bank, for relevant testimony.120 When Daugherty refused to comply, the Senate exercised its inherent contempt power and ordered its Sergeant-at-Arms to take Mr. Daugherty into custody.121 Once arrested, Daugherty filed a writ of habeas corpus with the local district court, which, upon review, held the Senate’s action unlawful and directed that Daugherty be discharged from the Sergeant-at-Arm’s custody.122 The Supreme Court reversed and upheld the Senate’s authority to arrest and detain a witness in order to obtain information for legislative purposes—noting that “[t]he power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” 123 In an oft-quoted passage, the Court declared:
A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed.124
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