Inherent Contempt

For many years I taught American Government to high school seniors.  It was a great time to teach about how America worked; the students were just reaching “adulthood,” gaining the right to vote, and developing interest in national affairs.  In education, we call that the “teachable moment”. It’s the nexus of interest and intellectual capacity that makes it “easy” to learn and teach.

Teachable Moment

One of the “special” events for those seniors was going to the Franklin County (Columbus) Courthouse to watch trials.  The Sixth Amendment guarantees a public trial; the students from Pataskala, Ohio could sit in any courtroom and see “the law” at work.  It gave them a real taste of what “justice” was like, and it also demonstrated how many criminal cases revolved around drug use. The excursion was an annual event for years.

And, we went to Spaghetti Warehouse afterwards to “debrief” and consume as much pasta and bread as humanly possible.

The “field trip” was scheduled in the spring, and most of my students were already eighteen, legal adults.  Regardless, the law makes no distinction about how old you have to be to sit in a public court.  With sixty kids in the building, we would “scout out” where the different trials were going on, and divide up.  We didn’t want to overwhelm any one courtroom.

The kids were well aware of their role as observers.  They weren’t to speak, or in any way disrupt the courtroom:  slip in quietly, watch for a while, slip out just a quietly.  I wandered through the halls, checking in on everyone, and directing students to different cases.  When there were breaks in the trials, the judges and lawyers would often engage the students in conversations. They asked why they were there, and discussed the cases and law with them.  One prosecutor took students into a conference room to show them the photographic evidence. It was a great experience for all.

Called to the Bar

So I was more than surprised when a student stopped me in the hall, and breathlessly informed me that a judge was demanding that the “teacher in charge” appear in her courtroom.  I immediately went, and found five students sitting in the back.  I asked them what happened. They said they walked in and sat down, and the judge looked up, pounded the gavel, and recessed the case.  She then demanded to know where they were from and what they were doing in her court. After they explained, she demanded that they “get your teacher”.  

The judge called me to “the bar”.  Lawyers in the case stood at their tables, and the judge began to grill me.  The judge didn’t think these “kids” should be in her courtroom (those students actually were all legal adults). The case was a rape case, and she didn’t think it was appropriate. She demanded that I remove them at once and keep all of my students from her courtroom. If I didn’t, she’d hold me in contempt and throw me in jail.

The lawyer from the defense table leaned in to whisper in my ear.  “Tell her about the Sixth Amendment, tell her it’s a public trial, I’ll defend you!!”  I whispered back, “I’m not going to jail today, thanks.”  I spent the rest of the day sitting outside the courtroom, keeping kids away.

No Appeal

It wasn’t legal, and it wasn’t right. But she was a judge in her courtroom, and she had the ultimate power of contempt: she could put me in jail, fine me, or both.  I would have no recourse, no “appeal”.  The judge even went so far as to call my Superintendent that afternoon and try to have me fired.   She was later removed and disbarred for her abusive behavior from the bench (not just to me, but pretty much everyone who appeared in her court). But it wouldn’t have helped that day, when a teacher from Pataskala worried about ending up in the Franklin County jail.  

If a Common Pleas Court Judge in Franklin County, Ohio, has that power of contempt, how can the US Congress have less? 

Contempt for Congress 

The House of Representatives is opening impeachment proceedings against the President of the United States. They are exercising their power and duty under the Constitution of the United States. The House acts as the “Grand Jury,” determining whether the President should be brought to trial in front of the Senate.

The Democrats in the House of Representatives also have a Constitutional duty of “oversight”.  They are required to see that the laws they passed are executed correctly.  To do that, they have to be able to get information from the Executive Branch, to get facts and question those that are “executing” the laws.  

This has normally been done as a matter of course.  The Executive Branch agencies and the White House routinely sent information to the Committees of the House, and the Secretaries and Administrators came to Congress with answers and information.  Only when there was a serious impasse between the two, did Congress issue subpoenas demanding information.  And when that happened, the Executive Branch almost always complied.

But now in the Trump Administration, the President has determined that they will provide little or no information to Congress. His appointees seem to take some “pride” in stonewalling committees, in failing to have information on hand, and in refusing to answer questions.  Even his chief “law enforcer,” Attorney General Barr, refused to respond clearly, and even failed to appear for the House of Representatives. We can only expect that with impeachment on the table, it will get worse.

Enforcing Power

If a subpoena is ignored, Congress has four ways to enforce it.  First, they can use the power of  “the purse,” and refuse to fund that portion of the Executive Branch until cooperation is provided.  While that is a good long-term strategy, it takes years to alter budgets, and requires cooperation from both sides of the Capitol.  The Democratic House is less likely to agree with the Republican Senate, so using purse strings is difficult.

The Congress can file criminal contempt charges with the Department of Justice, demanding criminal sanctions.  That’s fine, except a contemptuous Attorney General controls the Justice Department.  It’s very unlikely that the charges will ever be pressed, or subpoenas enforced.

Congress can also go to Court in a civil action, suing for contempt.  That works, but it’s time consuming, and with a Federal Judiciary now packed with Trump appointees, it no longer is a certainty.

Besides, filing criminal charges or going to Court puts the Legislative Branch in a position of depending on the Executive or Judicial Branches to enforce their powers.  In order to exercise legislative powers, the Congress needs to have a way do so on their own, without depending on another branch: and they do.

Inherent Contempt

Since 1818 the Congress has had the power of  “inherent contempt.”  Like that judge in the Franklin County Court, the Congress can take a person into custody, hold them in “jail” for a period of time, or fine them.  They can do it without recourse to the Courts, or to the Department of Justice.  It’s immediate, and it doesn’t even require the cooperation of both Houses.  The House and the Senate both have the same power as that judge:  to demand cooperation, obedience, and information.

It’s been over a century since a House of Congress has used the “inherent contempt” power.  Even through the Nixon and Clinton impeachments, Congress was able to maintain cooperation with the Justice Department and Courts.  But that’s not happening now.

A Cell in the Basement

Corey Lewandowski sat in front of the House Judiciary Committee and tried to make a mockery of their proceedings.  He was openly belligerent, refused to answer questions, and used the proceedings as the opening gambit in his own Senate candidacy.  Many viewers wanted to reach through the TV screen and slap him upside the head.  

Even more significantly, the White House and Justice Department ordered the Inspector General for the Intelligence Community to violate the “Whistleblower Law,” and withhold a specific report from the House Intelligence Committee.  While that report may finally be turned over, we still aren’t sure whether its the full version or a White House edited one. And this isn’t the first time the Administration ignored the law: the White House ordered the Commissioner of the IRS to keep the President’s tax returns from a Committee Chairman.  

It’s time for Congress, and specifically the House of Representatives, to use its “muscle.”  They need to enforce those powers themselves, and demand the respect that the Constitution requires.  

There’s a nice room underneath the Capitol building.  It was designed to be the crypt for George Washington’s coffin, but he was never buried there.  The crypt room was used to house the “Lincoln Catafalque” the stand that displayed Lincoln’s coffin. But that is now been moved to the new Visitor’s Center, so the room’s empty. 

The crypt has a barred door:  it would make a perfect jail cell.