Inherent contempt - does the President have power to overrule?

[aldiboronti]

House Republicans won’t rule out arresting Lerner if JD doesn’t

House Ways and Means Committee Republicans aren’t ruling out the use of the chamber’s “inherent contempt” authority if Attorney General Eric Holder refuses to act on the panel’s accusations against former IRS official Lois Lerner.

OK, this is purely GQ, I have no political axe to grind. Just what is this ‘inherent contempt’? I know we’re a long way off this yet but if the House did send her to the hoosegow for refusing to testify could the President spring her either by overruling the House or making her immune from prosecution or whatever?

[Bricker]

@aldiboronti

House Republicans won’t rule out arresting Lerner if JD doesn’t

OK, this is purely GQ, I have no political axe to grind. Just what is this ‘inherent contempt’? I know we’re a long way off this yet but if the House did send her to the hoosegow for refusing to testify could the President spring her either by overruling the House or making her immune from prosecution or whatever?

No. In Ex Parte Grossman, the Supreme Court held that the President could not pardon a person from inherent contempt of Congress, as it was not an “offense against the United States.” It was instead, the Court said, essentially a judicial act, and a presidential scuttling would violate the separation of powers.

[Tom_Tildrum]

Am I correct in thinking that a President similarly cannot pardon someone for contempt of court?

[TSBG]

But the finding of inherent contempt is made by Congress, based on rules it sets itself. Doesn’t that infringe on the judicial branch as well? And it’s up to the executive to enforce penalties, there’s no Congressional jail.

Is Grossman a mainstream contemporary opinion or some dusty thing from years ago?

[BrightNShiny]

Inherent contempt is a power that Congress inherited from the English parliament. That’s why we use the word “inherent,” to indicate that this is a power that’s inherent to the nature of being the legislature. This wiki article gives a good overview:

Under this process, the procedure for holding a person in contempt involves only the chamber concerned. Following a contempt citation, the person cited is arrested by the Sergeant-at-Arms for the House or Senate, brought to the floor of the chamber, held to answer charges by the presiding officer, and then subjected to punishment as the chamber may dictate (usually imprisonment for punishment reasons, imprisonment for coercive effect, or release from the contempt citation).

Concerned with the time-consuming nature of a contempt proceeding and the inability to extend punishment further than the session of the Congress concerned (under Supreme Court rulings), Congress created a statutory process in 1857. While Congress retains its “inherent contempt” authority and may exercise it at any time, this inherent contempt process was last used by the Senate in 1934, in a Senate investigation of airlines and the U.S. Postmaster. After a one-week trial on the Senate floor (presided over by the Vice-President of the United States, acting as Senate President), William P. MacCracken, Jr., a lawyer and former Assistant Secretary of Commerce for Aeronautics who had allowed clients to rip up subpoenaed documents, was found guilty and sentenced to 10 days imprisonment.[5]

MacCracken filed a petition of habeas corpus in federal courts to overturn his arrest, but after litigation, the U.S. Supreme Court ruled that Congress had acted constitutionally, and denied the petition in the case Jurney v. MacCracken.[6][7]

Presidential pardons appear not to apply to a civil contempt procedure such as the above, since it is not an “offense against the United States” or against “the dignity of public authority.”[8]

[Chronos]

How is this different from a Bill of Attainder?

[Bricker]

@Tom_Tildrum

Am I correct in thinking that a President similarly cannot pardon someone for contempt of court?

It depends. The President has, of course, no reach into state courts or proceedings. At the federal level, the President cannot pardon civil contempt, because the contumacious conduct is an affront to the court, and the civil contempt charge is therefore remedial.

The President can pardon federal criminal contempt, however, because that is an offense against the United States.

[Bricker]

@TSBG

But the finding of inherent contempt is made by Congress, based on rules it sets itself. Doesn’t that infringe on the judicial branch as well? And it’s up to the executive to enforce penalties, there’s no Congressional jail.

Is Grossman a mainstream contemporary opinion or some dusty thing from years ago?

It was a unanimous decision from 1925.

Since then, it’s been cited with approval a bunch of times, certainly within the last fifteen years.

[Bricker]

@Chronos

How is this different from a Bill of Attainder?

Civil contempt’s sanctions are not punitive. The sanctions imposed by civil contempt are intended to compel compliance with the lawful order being defied by the contemnor. While the contemnor is jailed, it is said that he holds the key to his own cell: to gain his release, all he must do is purge the contempt by complying with the order. Nor is this a criminal matter – it’s purely civil.

A bill of attainder is a legislative determination that a named person is guilty of a crime, a finding made with no trial, and for which a punitive sanction is imposed. There is no aspect by which the target may purge himself of the finding of guilt.

[TSBG]

Thanks for the information. This still outrages my separation of powers sense–perhaps I have an unusually well-developed one

For me the key is that it’s a holdover from the English Parliament, in which the legislature is also the executive. Supreme Court notwithstanding, this makes no sense to me.

What WOULD happen to this woman if found in “inherent contempt”–what could the Republicans do to her?

[BrightNShiny]

@TSBG

Thanks for the information. This still outrages my separation of powers sense–perhaps I have an unusually well-developed one

For me the key is that it’s a holdover from the English Parliament, in which the legislature is also the executive. Supreme Court notwithstanding, this makes no sense to me.

Here’s a Slate article which discusses the evolution of the contempt power:

In 1543, George Ferrers, a member of the House of Commons from Plymouth, England, was arrested for debt while on his way to Parliament. Members of Parliament (and members of Congress) are protected from arrest for debt during the sitting of the legislature, so the House of Commons sent its sergeant to demand Ferrers’ release. The jailers holding Ferrers impolitely declined, and a melee ensued: As one 16th-century account puts it, the sergeant’s assistant was “stroken down.” Outdone, the sergeant retreated to the House of Commons, which suspended all other business to tend to this challenge to parliamentary power. The lord chancellor, a Crown official, offered to provide the sergeant with a royal writ for Ferrers’ release. But the House turned him down, insisting that the sergeant should act “without writ, only by shew of his mace”—that is, on the authority of the House alone. The sergeant was sent back to the jail, more heavily armed this time, and the jailers caved in and handed over Ferrers.

This wasn’t an isolated arrest by the legislature. The history of the British Parliament is full of cases in which the House of Commons has enforced its rules with the help of its sergeant, or the House of Lords has done so using its ominously named equivalent, the “Gentleman Usher of the Black Rod.” To leave the privileges of Parliament in the hands of the executive—that is, the Crown—was to surrender far too much power.

So, the power originally developed as a way to keep the Executive (or other government officials) from impeding the legislature’s ability to do its job. So, you could think of the power as protecting the separation of powers, rather than impeding it.

Additionally, as the Supreme Court pointed out in Anderson v. Dunn in 1821, if Congress didn’t have this power, it would be difficult for Congress to prevent disruption of its ability to do its job. The quote that’s usually cited is this one:

But what is the alternative? The argument [against the inherent contempt power] obviously 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 meditate against it.