1. Congresss Inherent Contempt Power
From the very first decade of the Constitution, Congress took the
position that it had the right to imprison individuals in order to enforce
certain constitutional prerogatives. Congress used this inherent
contempt power to enforce its subpoenas for testimony and documents
and imprisoned contumacious witnesses until they complied
with the subpoena. The first use of Congresss inherent contempt
power against a defaulting witness took place in 1800 when a newspaper
editor, William Duane, was ordered by Senate resolution to appear
before the Senate and make any proper defense for his conduct
in publishing the aforesaid false, defamatory, scandalous, and
malicious assertions and pretended information.59 After initially appearing
before the Senate, Duane refused to return on the ground
that he would not receive a fair trial and was subsequently found to
be in contempt of Congress and arrested and held in Senate custody
for several weeks.60 Between 1795 and 1857, Congress initiated fourteen
inherent contempt actions, and in eight of those cases the contumacious
witness agreed to testify or produce documents after being
arrested by the Sergeant-at-Arms.61
Congresss inherent contempt power extends to the imposition of
what is essentially a civil contempt sanction on those who fail to
comply with congressional subpoenas.62 Under this procedure, a
committee may adopt a resolution to request the presiding officer of
the chamber to issue an arrest warrant to be executed by the Seargent-
at-Arms, who will bring the witness before the bar of the House.63
If the full chamber adopts a resolution ordering confinement of the
witness, the witness may be confined in a congressional cell pending
compliance with the subpoena.64 Because this power is a form of civil
contempt, the witness must be released once he complies with the
subpoena.65 The witness has a right to at least some form of hearing
before the legislature before contempt sanctions are imposed,66 and
he may assert any defenses to the subpoena, including privilege and a
lack of congressional authority, either before the committee or the
full chamber, or in a habeas corpus proceeding in court.67 Neither
House has utilized this inherent contempt power since 1932.68
Four important Supreme Court decisions defined the extent of
Congresss inherent contempt power. The Supreme Court first recognized
Congresss inherent contempt power in the 1821 case of Anderson
v. Dunn,69 which involved an action for trespassing against the
House Sergeant-at-Arms for assault and battery and false imprisonment
brought by a contumacious witness.70 The Supreme Court sustained
the dismissal of the case against the Sergeant-at-Arms on the
ground that the House had inherent authority to punish contempt in
order to protect its ability to carry out its constitutional responsibilities.
71 A contrary conclusion, the Court stated,
leads to the total annihilation of the power of the House of Representatives
to guard itself from contempts, and leaves it exposed to every indignity
and interruption that rudeness, caprice, or even conspiracy, may
mediate against it. This result is fraught with too much absurdity not to
bring into doubt the soundness of any argument from which it is derived.
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 corner 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.72
The Court was not particularly careful in its constitutional analysis
and it cited no constitutional history, case law, or any other precedents
to support the conclusion that Congress should have such an
inherent contempt power. The Court was unconcerned about the
potential for congressional abuse of the contempt power and addressed
those concerns by stating only that respectful deportment
. . . will render all apprehension chimerical.73 The Court limited
the contempt power to the least possible power adequate to
the end proposed.74 Moreover, punishment for contempt must be
limited to the life of the legislative body which ceases to exist on the
moment of its adjournment or periodical dissolution. It follows, that
imprisonment must terminate with that adjournment.75 This power
corresponds in many respects to the civil contempt power of a grand
jury.76
Thereafter, in Kilbourn v. Thompson,77 the Court held that Congresss
contempt power was reviewable by the courts, and that, because
of the popular origin and political nature of Congress, the
judiciary should most careful[ly] scrutin[ize] this assertion of authority.
78 Next, the Supreme Court further explained the precise nature
of Congresss inherent contempt power in In re Chapman,79 where
it rejected a challenge to a contempt of Congress conviction on the
ground that the prosecutionfirst under a criminal statute and then
punishment pursuant to Congresss inherent contempt power
created double jeopardy for the same offense and violation of the
Fifth Amendment of the Constitution.80 The Court ruled the contumacious
witness is not subjected to jeopardy twice for the same offence,
since the same act may be an offence against one jurisdiction
and also an offence against another.81 So, because Congresss inherent
contempt of Congress authority is essentially the equivalent of
civil contempt, it does not violate the double jeopardy clause to utilize
that power and later prosecute the contumacious witness for criminal
contempt of Congress.82
In 1917, the Court imposed additional constraints on Congresss
inherent contempt power in the case of Marshall v. Gordon.83 * * * *
