re: WaPo confirming Nunes will file contempt charges

From CRS Report RL34114


Congress has three formal methods by which it can combat non-compliance with a duly issued subpoena. Each of these methods invokes the authority of a separate branch of government.
First, the long dormant inherent contempt power permits Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands.
Second, the criminal contempt statute permits Congress to certify a contempt citation to the executive branch for the criminal prosecution of the contemnor.
Finally, Congress may rely on the judicial branch to enforce a congressional subpoena. Under this procedure, Congress may seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena.

Although the courts have reaffirmed Congress’s constitutional authority to issue and enforce subpoenas, efforts to punish an executive branch official for non-compliance with a subpoena through criminal contempt will likely prove unavailing in many, if not most, circumstances.
Where the official refuses to disclose information pursuant to the President’s decision that such information is protected under executive privilege, past practice suggests that the Department of Justice (DOJ) will not pursue a prosecution for criminal contempt.
In addition, although it appears that Congress may be able to enforce its subpoenas through a declaratory civil action, relying on this mechanism to enforce a subpoena directed at an executive official may prove an inadequate means of protecting congressional prerogatives due to the time required to achieve a final, enforceable ruling in the case.
Although subject to practical limitations, Congress retains the ability to exercise its own constitutionally based authorities to enforce a subpoena through inherent contempt.

Where the target of the subpoena is an executive branch official, civil enforcement may be the only practical means by which Congress can effectively ensure compliance with its own subpoena.

While there is no express provision of the Constitution or specific statute authorizing the conduct of congressional oversight or investigations, the Supreme Court has firmly established that such power is essential to the legislative function as to be implied from the general vesting of legislative powers in Congress. (See, e.g., Nixon v. Administrator of General Services, 433 U.S. 435 (1977); Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975); Barenblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States, 354 U.S. 178 (1957); McGrain v. Daugherty, 273 U.S. 135 (1927); Committee on the Judiciary v. Miers, 558 F. Supp. 2d 53, 84 (D.D.C. 2008) (“In short, there can be no question that Congress has a right—derived from its Article I legislative function—to issue and enforce subpoenas, and a corresponding right to the information that is the subject of such subpoenas. Several Supreme Court decisions have confirmed that fact.”).

McGrain v. Daugherty The Court explained: "Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain that which is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry—with enforcing process—was regarded and employed as a necessary and appropriate attribute of the power to legislate— indeed, was treated as inhering in it..."

In Sinclair v. United States, a different witness at the congressional hearings refused to provide answers, and was prosecuted for contempt of Congress. The witness had noted that a lawsuit had been commenced between the government and the Mammoth Oil Company, and declared, “I shall reserve any evidence I may be able to give for those courts ... and shall respectfully decline to answer any questions propounded by your committee.” The Supreme Court upheld the witness’s conviction for contempt of Congress. The Court considered and rejected in unequivocal terms the witness’s contention that the pendency of lawsuits provided an excuse for withholding information.

In addition, the Court in Watkins v. United States, described the breadth of the power of inquiry. According to the Court, Congress’s power “to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes.” The Court did not limit the power of congressional inquiry to cases of “wrongdoing.” It emphasized, however, that Congress’s investigative power is at its peak when the subject is alleged waste, fraud, abuse, or maladministration within a government department. The investigative power, the Court stated, “comprehends probes into departments of the Federal Government to expose corruption, inefficiency, or waste.” “[T]he first Congresses” held “inquiries dealing with suspected corruption or mismanagement by government officials” and subsequently, in a series of decisions, “[t]he Court recognized the danger to effective and honest conduct of the Government if the legislature’s power to probe corruption in the Executive Branch were unduly hampered.”

When a witness is cited for contempt under the inherent contempt process, prompt judicial review appears to be available by means of a petition for a writ of habeas corpus. In such a habeas proceeding, the issues decided by the court might be limited to (a) whether the House or Senate acted in a manner within its jurisdiction, and (b) whether the contempt proceedings complied with minimum due process standards. While Congress would not have to afford a contemnor the whole panoply of procedural rights available to a defendant in criminal proceedings, notice and an opportunity to be heard would have to be granted.

In comparison with the other types of contempt proceedings, inherent contempt has the distinction of not requiring the cooperation or assistance of either the executive or judicial branches. The House or Senate can, on its own, conduct summary proceedings and cite the offender for contempt.

In 1857, a statutory criminal contempt procedure was enacted...2 U.S.C. sections 192, 194 (2000)...The statute provides for judicial trial of the contemnor by a United States Attorney rather than a trial at the bar of the House or Senate. It is clear from the floor debates and the subsequent practice of both Houses that the legislation was intended as an alternative to the inherent contempt procedure, not as a substitute for it.

Civil enforcement entails a single house or committee of Congress filing suit in federal district court seeking a declaration that the individual in question is legally obligated to comply with the congressional subpoena. If the court finds that such an obligation exists and issues an order to that effect, continued non-compliance may result in contempt of court—as opposed to contempt of Congress. Although the Senate has existing statutory authority to pursue such an action, there is no corresponding provision applicable to the House.67 However, the House has previously pursued civil enforcement pursuant to an authorizing resolution.

Following Miers and Holder, it appears that all that is legally required for House committees, the House General Counsel, or a House-retained private counsel to seek civil enforcement of subpoenas or other orders is that authorization be granted by resolution of the full House.