On September 27, three House Committees issued subpoenas demanding that Secretary of State Mike Pompeo turn over documents related to State Department correspondence and interaction with Ukraine by October 4 as part of the House’s ongoing investigation into a possible impeachment of President Trump. The subpoenas’ deadline came and went, with Secretary Pompeo not only failing to provide Congress with any of the requested documents, but with the Secretary also accusing the House Committees of harassing and abusing State Department officials. In a statement to the media, Secretary Pompeo said the Department sent the Committees an “initial response” and that the Department would “obviously do all the things we are required to do by law.” Secretary Pompeo’s refusal to comply with Congressional Subpoenas has renewed a longstanding question of whether the Secretary should, or even could, be held in criminal contempt of Congress.
Since the nation’s founding, declaring “contempt of Congress” has been an implied power of the legislative branch. The Supreme Court confirmed this implied power in 1821 in Anderson v. Dunn.[2] Prior to 1857, fourteen contempt of Congress actions were initiated by the House or Senate, with eight of the trials resulting in either criminal punishment or an agreement to comply with Congress’s demands. However, the legislature saw these trials as too time-consuming and cumbersome, which lead Congress to officially make contempt of Congress a criminal offense in 1857, with the possible punishment of fines or imprisonment.
While the 1857 law has been modified over the years to keep up with changes like inflation, the law’s original intent remains intact: when a chamber of Congress believes a citizen has committed contempt of Congress, the case is delivered under seal to the appropriate United States Attorney, who is then responsible for handling the case. Nevertheless, Congress continued to try congressional contempt cases within its chambers. Congress continued this until 1935, ending the practice following Jurney v. MacCracken, when Congress charged a lawyer with criminal contempt after the lawyer allowed clients to ignore and destroy Congressional Subpoenas. The lawyer was found guilty by the Senate and was sentenced to ten days in prison.
Since MacCracken, the House and Senate have referred all contempt of Congress cases to the United States Attorney for the District of Columbia. In most cases, the simple threat of referring a contempt investigation to the United States Attorney is enough for the individual to supply the requesting Chamber with the information or testimony sought. This however does not always happen. In 1984, Congress launched an investigation into a California company dumping toxic waste and the EPA’s feigned ignorance of this law-breaking. Rita Lavelle, the EPA’s chief of toxic waste programs, who had been fired by President Reagan at that point, was found guilty of lying to Congress and was sentenced to six months in prison and a $10,000 fine.
On the other hand, courts sometimes refuse to side with Congress in contempt trials. In 2012, President Obama’s Attorney General, Eric Holder, was found in contempt of Congress by a vote of 255-67 in the House. Holder, under President Obama’s executive privilege claim, refused to hand over documents related to Operation Fast and Furious. Holder’s case was referred to the United States Attorney for the District of Columbia, and after a two year legal battle, a United States District Court Judge for the District of Columbia ordered Attorney General Holder to hand over the desired documents.[3] When Attorney General Holder still refused, citing executive privilege, the District Court Judge refused to issue fines or place Holder in prison, much to Congress’s dismay.
The circumstances surrounding Attorney General Holder’s case parallel the current situation involving Secretary Pompeo. This begs an important question: is the executive branch immune to contempt of Congress criminal charges? Secretary Pompeo and President Trump believe it is and history seems to support their position.
Nearly every presidency has declared executive privilege, at some point, to prevent documents from being delivered to Congress. The most notable example created one of the most famous Supreme Court decisions, United States v. Nixon. In Nixon, the Supreme Court recognized that the executive branch generally enjoys a privilege against disclosing information requested by the judicial or legislative branches.
Usually, executive privilege applies to areas of foreign affairs and military and domestic secrets. However, in 1954, President Eisenhower asserted that the privilege extended to communications within the executive branch in order to protect officials’ ability to be completely candid in their advising with each other and the President. President Eisenhower’s argument is likely the basis behind President Trump’s current claim of executive privilege. However, the Supreme Court in Nixon did not completely agree with this claim. The Nixon majority held that without more explanation, the confidentiality of executive branch communications cannot sustain an absolute executive privilege. Further, the majority held that executive privilege cannot be used to hide potential evidence of a crime committed by the President.
New information surrounding the House’s current impeachment investigation of President Trump is being released by the day. As President Trump and Secretary Pompeo continue to defy the House’s demands for files and testimony from State Department officials’, it is becoming increasingly clear that the House has a decision to make. Will it launch an official impeachment process into the alleged criminal wrongdoings of the President? Will it officially accuse President Trump of committing a crime, which, under the Supreme Court’s decision in Nixon, would stop the use of executive privilege and open officials, like Secretary Pompeo, up to criminal contempt of Congress proceedings? What unfolds in the upcoming weeks could reshape how Congress approaches contempt and defiance by the executive branch.