It is the common perception that being held in contempt means going to jail.\u00a0\u00a0There isn\u2019t much \u201cdue process\u201d:\u00a0\u00a0the \u201ccontemptee\u201d gets a chance to follow orders or go to jail.\u00a0\u00a0And when it comes to the personal power of a Judge to control their courtroom, that\u2019s actually true.\u00a0\u00a0<\/p>\n\n\n\n
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 \u201cField Trip\u201d downtown was one of the highlights of Senior year. The Sixth Amendment to the United States Constitution guarantees a \u201c\u2026speedy and public trial.\u201d Students could (carefully and quietly) slip into the back of courtrooms to watch trials in action. It\u2019s public \u2013 really \u2013 Constitutionally guaranteed.<\/p>\n\n\n\n
Well, almost guaranteed.\u00a0\u00a0I had a class of kids at the Courthouse.\u00a0 The students spread out so that they didn\u2019t overwhelm any one trial.\u00a0\u00a0\u00a0And I went to trials too.\u00a0\u00a0I 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, \u201cA judge on the fifth floor wants to see our teacher, and sent me to find you\u201d.\u00a0\u00a0That couldn\u2019t be good:\u00a0\u00a0did my students disrupt a case in some way?\u00a0\u00a0Where they in trouble?<\/p>\n\n\n\n
I raced up the stairs to the next floor, and entered Judge Deborah O\u2019Neill\u2019s courtroom.\u00a0\u00a0The 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.\u00a0\u00a0As I came in, the bailiff directed me to \u201cthe bar\u201d; to stand at the front of the courtroom between the prosecution and defense table.\u00a0\u00a0Judge O\u2019Neill then yelled and pointed at my kids, \u201cAre you the teacher of those students?\u201d\u00a0\u00a0I answered in the affirmative. She continued, \u201cDo you know we are trying a rape case in this courtroom?\u201d\u00a0\u00a0 I didn\u2019t, but these were seniors in high school and all of them in the room were eighteen; legal adults.\u00a0\u00a0<\/p>\n\n\n\n
I asked if they had misbehaved in some way, but that didn’t seem to be the problem. The judge didn\u2019t think the \u201csubject matter\u201d was appropriate for students, and she was furious that I thought it was.\u00a0\u00a0I never got to explain it to her (she just kept yelling), but it\u2019s a public trial and my kids are adults.\u00a0\u00a0As their teacher, I knew that during the year we had discussed almost every imaginable\u00a0\u00a0topic in class, including rape.\u00a0\u00a0We even had to analyze then-President Bill Clinton and oral sex!<\/p>\n\n\n\n
So I wasn\u2019t worried about what they would hear or see. In a courtroom on the third floor there was a bloody murder case going on.\u00a0\u00a0My 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.\u00a0\u00a0Then the Prosecutors took the students back into a conference room to see the autopsy evidence.\u00a0\u00a0Whatever was going on the fifth floor, it was our justice system in action, and it certainly wasn\u2019t worse than that.\u00a0\u00a0And, besides, by Constitutional guarantee, it was a \u201cPublic Trial\u201d.\u00a0\u00a0<\/p>\n\n\n\n
Though I couldn\u2019t imagine it was a problem, Judge O\u2019Neill definitely could.\u00a0\u00a0She demanded my name, what school district I worked for, and the name of my Superintendent.\u00a0\u00a0She berated me for \u201cexposing\u201d my kids to the evidence in trials.\u00a0\u00a0Then she laid out her demand:\u00a0\u00a0\u201cIf one more student comes in this Courtroom, I\u2019m holding you in contempt and putting you in jail\u201d.\u00a0\u00a0One of the defense lawyers leaned over and whispered in my ear \u2013 \u201cGo ahead, quote the Sixth Amendment to her. I\u2019ll take your case for free!!!\u201d<\/p>\n\n\n\n
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.\u00a0\u00a0Besides, we had a 12:30 reservation at the Spaghetti Warehouse. I wasn\u2019t too worried about a phone call to the superintendent, but ending up in a Franklin County jail cell didn\u2019t sound like a good career move, even if the Sixth Amendment guaranteed my class’s right to be there.\u00a0\u00a0<\/p>\n\n\n\n
So I sat outside Judge O\u2019Neill\u2019s courtroom for the remainder of the day, making sure my kids didn\u2019t go in. And I called my Superintendent to give him a head\u2019s 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\u2019Neill was sanctioned for her unprofessional behavior (not just to me) by the Ohio Supreme Court. She was removed from her judgeship.<\/p>\n\n\n\n
Judges have inherent contempt powers \u2013 they can just say \u201cGo to jail\u201d and you \u201cgo to jail\u201d.\u00a0\u00a0If someone refuses to testify, the Judge can hold them in jail until they do, or the trial is resolved some other way.\u00a0\u00a0Congressional committees have contempt powers as well.\u00a0\u00a0The first kind is exactly like the Judge O\u2019Neill\u2019s power, inherent contempt.\u00a0\u00a0A 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.\u00a0\u00a0But Congress hasn\u2019t done this since 1935.<\/p>\n\n\n\n
The reason Congress hasn\u2019t is simple.\u00a0\u00a0While they do have a protective service, the Capitol Police, they don\u2019t really have an enforcement service.\u00a0\u00a0It would be difficult for the Capitol Police to go off Capitol Hill and arrest and hold someone.\u00a0\u00a0Besides, they don\u2019t actually have a jail cell in the Capitol building (though there are rooms that would work).\u00a0\u00a0After all, they are the legislative branch, not the executive branch.<\/p>\n\n\n\n
So instead they use two other forms of enforcing Congressional will. The first is called \u201cCivil Contempt\u201d. Essentially the Congress \u201csues\u201d 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. <\/p>\n\n\n\n
They can be held for as long as\u00a0Congress remains in session (it expires every two years).\u00a0\u00a0\u00a0But the problem with civil contempt is that it takes time, and\u00a0\u00a0the Court\u2019s decision can be appealed up the Federal chain. We saw that with the House impeachment committees and President Trump’s men.\u00a0\u00a0And, civil contempt has a definite time limit:\u00a0\u00a0stay in jail until you comply, or until the session is over.<\/p>\n\n\n\n
As former Congressman Doug Collins was fond of saving, Congressional Committees run on a \u201cclock and a calendar\u201d. If a \u201ccontemptee\u201d can appeal long enough, the Committee would expire before the evidence is heard.<\/p>\n\n\n\n
The other form of Congressional contempt is a criminal contempt referral.\u00a0\u00a0The Congress asks the Justice Department to file criminal contempt charges in Federal Court.\u00a0\u00a0At this point, Congress is out of the picture, it is prosecutors versus a defendant in front of a judge and jury.\u00a0\u00a0And the outcome of criminal contempt charges is different as well.\u00a0\u00a0A guilty finding means that the guilty person pays a fine, or goes to jail for a specific term, or both.\u00a0\u00a0But it doesn\u2019t require them to testify or produce anything for Congress.\u00a0\u00a0<\/p>\n\n\n\n
Criminal Contempt becomes a crime just like any other crime.\u00a0\u00a0Once the referral is made, and the Justice Department brings charges, Congress has nothing to do with it.<\/p>\n\n\n\n
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.<\/p>\n\n\n\n
Just like Judge O\u2019Neill, that would be a wonderful \u201cpayback\u201d. <\/p>\n","protected":false},"excerpt":{"rendered":"