Can you hold a member of the executive branch in contempt of Congress?

“That a deliberate assembly, clothed with the majesty of the people, and charged with the care of all that is dear to them; composed of the most distinguished citizens, selected and drawn together from every quarter of a great nation; whose deliberations are required by public opinion to be conducted under the eye of the public, and whose decisions must be clothed with all that sanctity which unlimited confidence in their wisdom and purity can inspire; that such an assembly should not possess the power to suppress rudeness, or repel insult, is a supposition too wild to be suggested.”  — Anderson v. Dunn, 1821

“…any person summoned as a witness by the authority of either the House of Congress to give testimony…who shall willfully…refuse to answer any question…shall be liable to indictment…” — 18 U.S.C. 401.

If some racketeer refused to answer questions by a congressional investigating committee, and offered no legal reasons for refusing, he would be charged with contempt of Congress.

Why not an executive official who does the same?

Doesn’t his recalcitrance raise the most fundamental issue of separation of powers?

After watching witnesses recently refuse to answer proper questions by the Senate Intelligence Committee, many observers have asked: What recourse did the Committee have?

{mosads}If a witness refuses to answer questions by an authorized arm of Congress, it is contempt, which can be the subject of an indictment for a crime, or it can be a predicate for Congress to exercise its inherent right to jail that recalcitrant witness until he or she answers those questions.

American courts and American legal historians have often referred to the history of the English Parliament in support of their theories about contemporary congressional contempt powers. Parliament was once, long ago, a body which discharged both judicial and legislative functions, legislative in Commons, judicial in Lords. 

The high court of Parliament, “exercised the highest functions of a court of judicature, representing in that respect the judicial authority of the king. . .”

The first instance in which the House of Commons vindicated any power of privilege by imprisoning for contempt occurred in 1543. It was upheld on the basis of legislative necessity and custom based on the historic judicial character of the House. Another rationale claimed for the exercise of this power has been necessity.

Without such a power, a legislative body could not function. In this respect, the power of the legislature was said to be governed by the same principles as was that of the judiciary. Without the power to punish contempt there would be no way to deter disrespect or encourage cooperation. 

The power of contempt is not only expedient and necessary, but also so essential that it must be a natural, innate power of any legislature.

The original American colonies adopted many procedures akin to England’s common-law methods. 

Their assemblies exercised the contempt power to compel testimony, and to protect their dignity and position. They rationalized their power as one of inherent and necessary right – auxiliary to their legislative natures.

In 1795, a U.S. House of Representatives committee investigating an alleged bribery of a member of the House cited a nonmember for contempt and imprisoned him for nine days. During the next 50 years, both the House and the Senate cited individuals for contempt of their august selves.

In 1821, the first American case dealt with the power of the legislature to punish for contempt was decided, Anderson v. Dunn.

In 1857, a federal statute was enacted authorizing punishment for contempt of Congress. Prior to that time, the contempt power was exercised under a claimed, inherent right. The contumacious individual was brought before the Bar of the offended House by the Sergeant-at-Arms, at the behest of the officer of the House, and summarily dealt with. His imprisonment at the House concluded with the end of the congressional session.

The power was used where it was necessary to urge compliance which, once given, dispelled the need for further action. In many cases, the contemptor purged himself by cooperating with the Congress. The procedures, though summary, included some hearing with counsel.

Nowadays, the statutory contempt power is used, less coercive and more in an attitude of retributive punishment. But the summary power remains an option, obviously one to be used with extreme restraint.

Under the present statute, the president of the Senate or the speaker of the House of Representatives, after a decision to punish an individual for contempt, sends the case to the United States Attorney for the district where the contempt was committed. He presents the case to a grand jury, which decides whether to indict the contemptor. 

If he is indicted, he stands trial in federal court.

During the 92 years between 1857 (the date of the congressional contempt statute) and 1949, according to one study, 113 witnesses were cited for contempt of Congress, while from 1950 to 1952, 117 witnesses were cited for contempt. Times have changed, as have political climates, and the power remains. 

Despite the political overtones to the current hearings, Congress — both parties — have a legitimate and precedent setting reason to assert its investigative and oversight powers as an equal institution of our tripartite government. 

Ronald Goldfarb is a Washington, D.C. attorney and author of the book “The Contempt Power.” He has argued a contempt case in the U.S. Supreme Court. 

The views expressed by contributors are their own and are not the views of The Hill.