It is the common perception that being held in contempt means going to jail. There isn’t much “due process”: the “contemptee” gets a chance to follow orders or go to jail. And when it comes to the personal power of a Judge to control their courtroom, that’s actually true.
The Story (of course there’s a story!!)
I was a high school government teacher, and for several years I took my classes down to the Franklin County Courthouse in downtown, Columbus, to observe trials in action. After all of the class lessons about court procedure, criminal rights, civil rights, and rules of evidence, the “Field Trip” downtown was one of the highlights of Senior year. The Sixth Amendment to the United States Constitution guarantees a “…speedy and public trial.” Students could (carefully and quietly) slip into the back of courtrooms to watch trials in action. It’s public – really – Constitutionally guaranteed.
Well, almost guaranteed. I had a class of kids at the Courthouse. The students spread out so that they didn’t overwhelm any one trial. And I went to trials too. I was sitting in on a civil trial on the fourth floor about a parking lot company, when one of my students slipped into the room, sat beside me and whispered, “A judge on the fifth floor wants to see our teacher, and sent me to find you”. That couldn’t be good: did my students disrupt a case in some way? Where they in trouble?
Judge O’Neill
I raced up the stairs to the next floor, and entered Judge Deborah O’Neill’s courtroom. The room was empty of spectators except for five of my students. But the prosecutors, the defense team, the bailiffs and the judge were all silent, and waiting — for me. As I came in, the bailiff directed me to “the bar”; to stand at the front of the courtroom between the prosecution and defense table. Judge O’Neill then yelled and pointed at my kids, “Are you the teacher of those students?” I answered in the affirmative. She continued, “Do you know we are trying a rape case in this courtroom?” I didn’t, but these were seniors in high school and all of them in the room were eighteen; legal adults.
I asked if they had misbehaved in some way, but that didn’t seem to be the problem. The judge didn’t think the “subject matter” was appropriate for students, and she was furious that I thought it was. I never got to explain it to her (she just kept yelling), but it’s a public trial and my kids are adults. As their teacher, I knew that during the year we had discussed almost every imaginable topic in class, including rape. We even had to analyze then-President Bill Clinton and oral sex!
So I wasn’t worried about what they would hear or see. In a courtroom on the third floor there was a bloody murder case going on. My students were stacking up to see that trial, and on a recess break, the judge there went into exquisite detail explaining the case to them. Then the Prosecutors took the students back into a conference room to see the autopsy evidence. Whatever was going on the fifth floor, it was our justice system in action, and it certainly wasn’t worse than that. And, besides, by Constitutional guarantee, it was a “Public Trial”.
Judicial Contempt
Though I couldn’t imagine it was a problem, Judge O’Neill definitely could. She demanded my name, what school district I worked for, and the name of my Superintendent. She berated me for “exposing” my kids to the evidence in trials. Then she laid out her demand: “If one more student comes in this Courtroom, I’m holding you in contempt and putting you in jail”. One of the defense lawyers leaned over and whispered in my ear – “Go ahead, quote the Sixth Amendment to her. I’ll take your case for free!!!”
I had forty kids in the courthouse that day, and ending up in jail would definitely be a problem with the folks back at school. Besides, we had a 12:30 reservation at the Spaghetti Warehouse. I wasn’t too worried about a phone call to the superintendent, but ending up in a Franklin County jail cell didn’t sound like a good career move, even if the Sixth Amendment guaranteed my class’s right to be there.
So I sat outside Judge O’Neill’s courtroom for the remainder of the day, making sure my kids didn’t go in. And I called my Superintendent to give him a head’s up (good thing, she called him on the next recess). In the long run though, paybacks, as always, were wonderful. A couple of years later, it was with some joy that I heard Judge O’Neill was sanctioned for her unprofessional behavior (not just to me) by the Ohio Supreme Court. She was removed from her judgeship.
Inherent Contempt
Judges have inherent contempt powers – they can just say “Go to jail” and you “go to jail”. If someone refuses to testify, the Judge can hold them in jail until they do, or the trial is resolved some other way. Congressional committees have contempt powers as well. The first kind is exactly like the Judge O’Neill’s power, inherent contempt. A Congressional committee could order a person to appear and testify, or produce documents. If that person refuses, Congress could order them held in jail or fined until they decide to testify or produce. But Congress hasn’t done this since 1935.
The reason Congress hasn’t is simple. While they do have a protective service, the Capitol Police, they don’t really have an enforcement service. It would be difficult for the Capitol Police to go off Capitol Hill and arrest and hold someone. Besides, they don’t actually have a jail cell in the Capitol building (though there are rooms that would work). After all, they are the legislative branch, not the executive branch.
Civil Contempt
So instead they use two other forms of enforcing Congressional will. The first is called “Civil Contempt”. Essentially the Congress “sues” someone in Federal Court, to have the Court require them to testify. If the Court agrees, then it is the Court that orders the person to be testify, or be held in Federal Jail until such time as they agree to do so.
They can be held for as long as Congress remains in session (it expires every two years). But the problem with civil contempt is that it takes time, and the Court’s decision can be appealed up the Federal chain. We saw that with the House impeachment committees and President Trump’s men. And, civil contempt has a definite time limit: stay in jail until you comply, or until the session is over.
As former Congressman Doug Collins was fond of saving, Congressional Committees run on a “clock and a calendar”. If a “contemptee” can appeal long enough, the Committee would expire before the evidence is heard.
Criminal Contempt
The other form of Congressional contempt is a criminal contempt referral. The Congress asks the Justice Department to file criminal contempt charges in Federal Court. At this point, Congress is out of the picture, it is prosecutors versus a defendant in front of a judge and jury. And the outcome of criminal contempt charges is different as well. A guilty finding means that the guilty person pays a fine, or goes to jail for a specific term, or both. But it doesn’t require them to testify or produce anything for Congress.
Criminal Contempt becomes a crime just like any other crime. Once the referral is made, and the Justice Department brings charges, Congress has nothing to do with it.
The House of Representatives committee on January 6th referred criminal contempt charges against Steve Bannon. The Justice Department took on the referral, and charged Bannon with criminal contempt of Congress. The committee knows that Bannon is likely to never testify. And they also know that Bannon will stretch out the process as long as possible. So if Bannon is never going to testify anyway, the greatest punishment Congress can offer is conviction for contempt. That way, no matter which political party controls the House after the 2022 elections, Bannon still goes to jail.
Just like Judge O’Neill, that would be a wonderful “payback”.
