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The current tug of war between the executive branch and Congress has revived interest in the exact scope of congressional investigative power. On May 6, the House Judiciary Committee voted to recommend that Attorney General William Barr be held in contempt of Congress for his refusal to provide the committee with an unredacted version of the special counsel’s report. House Intelligence Committee Chairman Adam Schiff had already stated that the House is willing to resort to unprecedented sanctions—including reviving Congress’s inherent contempt power or even directly fining officials—should it face more stonewalling from members of the administration. Although some of the tensions between the two branches subsided after the Justice Department proposed to provide more access to the report, the House is still set to vote on a contempt resolution this week. Meanwhile, the House Oversight and Reform Committee is also set to vote to hold Barr and Commerce Secretary Wilbur Ross in contempt with regards to a separate matter involving request of information on the administration’s census policy. Should the full House certify either committee’s contempt citations, the body will start deliberating over what avenue to pursue for enforcing its contempt power.
Despite the role congressional investigations have played in the most high-stakes recent struggles between the two branches, the nuances of the law in this area remain underexplored. Schiff’s assertive posture is colored by the recent history of congressional investigations. Congress’s ability to steer the direction of high-profile investigations has eroded slowly over the past 15 years as the executive branch has discovered effective resistance methods that help it evade any penalty that might stem from congressional contempt. Against this background, the option of directly fining federal officials—never practiced before—might allow Congress to regain some ground. Currently, the Democrats are said to be exploring the legal basis for levying fines. My research in the area suggests the law will be on their side.
Traditionally, Congress has used its contempt power to punish those who refuse to comply with duly issued subpoenas. To this day, the body has used three different methods of enforcement: physically arresting and detaining individuals, pursuant to the “inherent contempt” power; certifying a contempt citation and recommending to the Department of Justice that a criminal action be initiated under 2 U.S.C. §§ 192 and 194 (the Criminal Contempt Statute); or internally granting standing to the appropriate committee or certain members so that a civil action can be initiated in court. However, all three avenues are futile when the contemnor is an executive branch official. In such cases, triggering inherent contempt has undesirable optics: It is not hard to imagine that the image of a high-level executive official being handcuffed and detained by the sergeant-at-arms will likely undermine any residual sense of comity left between the administration and Congress. Additionally, criminal contempt is unlikely to receive the Justice Department’s endorsement, and civil contempt imposes significant undue delay and unpredictability.
Currently, Congress can achieve its endgame of fining federal officials through an indirect route of civil contempt or criminal contempt. In both cases, Congress would have to initiate a lawsuit (either civil or criminal), obtain a favorable order from a judge, and ultimately ask the judge to use the court’s contempt power to impose a fine on the contemnor. However, it is unclear whether Congress can instead issue the fines itself, without having to resort to the courts first. If Congress can issue a fine unilaterally, this power would be more in line with Congress’s inherent contempt power of arresting federal officials—the only avenue of enforcement that courts have so far recognized as not requiring judicial involvement. In both cases of arresting or fining a federal official under the inherent contempt power, Congress can exercise its power first and the action will be subject to review by the courts only after the fact. Therefore, as Schiff has noted, the possibility of fining federal officials under inherent contempt power ameliorates one significant problem with relying on courts to fine officials, namely, the arduous and time-consuming process of obtaining a judicial order.
The legal uncertainty surrounding Congress’s power in this area stems from the fact that Congress has never before tried to exert its contempt power by directly issuing fines. Therefore, the courts have never been asked before to judge the legality of such measures. Yet there is clear legal precedent that all but endorses such power. The Supreme Court has consistently analogized between the congressional contempt power and the judiciary’s contempt power. For example, in McGrain v. Daugherty (1927), the court was asked to review whether an unsworn committee report could form the basis for a warrant issued by a Senate investigation subcommittee; the court agreed that Congress had that power because the courts of law followed the same practice. In Jurney v. MacCracken (1935), the Supreme Court clearly stated that the power of Congress to punish for contempt is “governed by the same principles as the power of the judiciary to punish for contempt.” Similarly, in Kilbourn v. Thompson (1880)—concerning Congress’s impeachment powers, which follow the same quasi-judicial procedures as contempt proceedings—the Supreme Court stated that Congress should be able to conduct investigations “in the same manner and by the use of the same means that courts of justice can in like cases.” The court then, in dicta, stated that this would logically give Congress the power to punish by “fine or imprisonment,” the same options being available to courts (emphasis added).
The courts’ power to fine for contempt itself originates from the famous legal maxim that a greater power includes a lesser power. As Justice Oliver Wendell Holmes eloquently articulated the principle, “[e]ven in the law the whole generally includes its parts. If the state may prohibit, it may prohibit with the privilege of avoiding the prohibition in a certain way.” The courts have borrowed this principle to determine the scope of their own contempt power. In Hutto v. Finney (1978), the Supreme Court held that the judicial power to impose financial penalty on government officials who refused to comply with court orders was constitutional because the courts already had the power to send those officials to jail for noncompliance, instead of fining them. It followed that exercising the power to fine must have existed as a less draconian measure to address the noncompliance.
The Supreme Court has already directly borrowed this principle in analyzing the scope of congressional contempt power, stating in Anderson v. Dunn (1821) that it expects Congress to exercise its contempt power by utilizing “the least possible power adequate to the end proposed.” There, the court was fashioning an argument that the power to investigate itself may be a lesser power derived from the greater power to impeach. Given the close ties between the reasoning adopted to determine the scope of judicial contempt power and the congressional contempt power, it is sensible to assume that the courts will find the congressional power to fine in line with their own precedent. But in addition to the direct references in the Supreme Court’s opinions, there are other independent constitutional justifications for granting Congress the power to directly issue fines.
Congress’s investigatory power is linked intrinsically with its power to prevent waste and fraud in the government. As the Supreme Court itself noted in Barenblatt v. U.S. (1959), Congress’s investigatory powers have been pivotal in “determining what to appropriate from the national purse, or whether to appropriate.” In fact, the earliest examples of legislative investigatory power in America were limited to investigating executive officials for misuse of government resources. The colonial assemblies in America, in exercising their investigatory power, defined their jurisdiction to extend to “any officer in the pay and service of the government” and the main goal of their investigatory power to be obtaining information about “the account of [their] [m]anagement while in the public employ” (emphasis added).
If Congress is denied an efficient way to punish executive officials who stonewall investigations, the executive branch will effectively be able to dismantle the power of the purse. The executive branch will simply ignore congressional mandates on how to spend the federal money and subsequently hinder Congress’s oversight of such misuses. This is why, historically, the two powers have been co-dependent. It is sensible to use the power of the purse to protect the investigation power, because one of the main reasons the investigation power exists in the first place is to preserve the power of the purse.
There are reasons to believe that the courts will not object to being left out of contempt enforcement at the first step. Historically, the courts have understood the sense of urgency that accompanies the use of contempt power, in many cases curtailing their own involvement in such conflicts. For these reasons the courts are less likely to find Congress’s attempts at fining officials directly, and before going to court, to be unconstitutional.
First of all, in cases where Congress might resort to its civil contempt power, there is still a real possibility that high-profile cases might be dismissed under the political question doctrine. In 1975, as legislators were discussing the passage of the jurisdictional statute for civil contempt cases, now at 28 U.S.C. § 1365, then-Assistant Attorney General Antonin Scalia argued that cases that will require the federal courts to balance Congress’s need for information against the executive branch’s need for confidentiality present “the very type of ‘political question’ from which … the courts abstain.” If access to the courts should be foreclosed to the legislative branch under the political question doctrine, that is even more reason to argue that resorting to measures that circumvent judicial involvement, at least at the first step, do not raise serious constitutional problems.
Second, the Supreme Court itself has cited the possibility of undue delays of civil actions as justification for Congress to resort to other measures. For example, the Supreme Court in a number of cases has agreed to suspend its often-deeper scrutiny of bill of rights violation claims by those testifying before Congress. For example, in Eastland v. United States Servicemen’s Fund (1975), the court rejected a challenge to the scope of congressional subpoena power under the First Amendment by relying in part on the effect such cases might have on the expediency of investigations, writing:
This case illustrates vividly the harm that judicial interference [with congressional investigations] may cause. A legislative inquiry has been frustrated for nearly five years, during which the Members and their aide have been obliged to devote time to consultation with their counsel concerning the litigation, and have been distracted from the purpose of their inquiry. The [the Speech and Debate Clause] was written to prevent the need to be confronted by such “questioning” and to forbid invocation of judicial power to challenge the wisdom of Congress’ use of its investigative authority.
The third, and perhaps most important, reason why Congress’s attempts at directly fining federal officials will not encroach on the courts’ powers is that the courts have a clear track record of denying themselves that exact right out of fear that judicially imposed fines might contravene the power of the purse. Outside of congressional contempt cases, federal officials could find themselves at the mercy of judicial contempt in routine administrative procedure cases. Private citizens may prevail against federal officials in charge of administering federal programs, and the judge will duly order the federal official to take certain actions—suspend enforcement of a federal program or take redressive measures, for example. If, for one reason or another, the federal officials refuse to carry out the judges’ orders in a timely manner, the courts will resort to judicial contempt, threatening to impose fines or jail time. However, recent legal scholarship shows that when private plaintiffs prevail over administrative officials in such cases and the judges threaten to sanction the officials with fines, the courts often retreat at the last minute—partly out of the concern that they lack the authority to order withdrawal of money from the federal budget without Congress’s consent. This line of cases indicates that federal courts might view Congress’s power to order dissemination of funds from the federal budget to pay for contempt fines paramount even to the judges’ power to do the same.
But identifying the legal authorities for Congress’s power to directly fine federal officials is only the first part of the question. Congress must also resolve how such fines will be imposed. There are at least three potential options. First is to borrow the procedures from the closest analogy: Congress’s past experience with fining its own members. Congress has previously fined its own in response to ethics investigations. In some cases, Congress has issued a formal finding ordering the member to write a check to the Treasury Department to pay for the fines; in other cases, the committees have asked the sergeant-at-arms to deduct from the member’s salary. In instances where Congress has deducted from a salary, instead of asking the member to write a check directly to the Treasury, it has relied on the authority of the sergeant-at-arms to certify the salary of each member before it is transmitted to the Treasury Department for payment.
Because the sergeant-at-arms does not have the same power over other executive officials’ salaries, Congress would need to seek another avenue to communicate its message to the Treasury Department if it were to use fines to enforce inherent contempt. The sergeant-at-arms might derive the power to request such salary deduction from the Debt Collection Improvement Act (DCIA), which was enacted in 1996 and established an administrative process for garnishing the salaries of federal officials found to be indebted to the U.S. government and delinquent on their debt. The act requires the agencies to notify the Department of Treasury’s Financial Management Services (FMS) when they become aware that a federal employee is delinquent on a nontax debt. The DCIA also defines nontax debt to include “[a]ny fines or penalties assessed by an agency,” and its definition of agency includes all executive, judicial and legislative departments or agencies. A fine assessed by Congress should therefore fall under this act.
In fining its own members, Congress has previously set an amount that would recoup the cost of ethics investigations. Congress could follow that model here and impose a fine commensurate with the additional cost imposed on the committees as a result of stonewalling by the federal officials. It could then treat that fine as a nontax debt to the government, if left unpaid, and notify the appropriate agency of the existence of that debt. The chief financial officer in each agency will be under legal obligation to take all measures to ensure that the debt is collected without receiving a court judgment first, including reporting the debt to the Treasury Department for administrative offsetting of salaries. One big shortfall in using the DCIA as a potential avenue for collecting the fine, however, is that federal law does not allow for garnishments that exceed 25 percent of the official’s disposable pay. Although this might still prove effective for punishing lower ranking federal officials, it certainly forecloses the opportunity to impose heftier fines.
Alternatively, Congress could leverage Section 713 of the Financial Services and General Government Appropriations Act, an appropriation rider that has been included in the annual budget act since 1998. The act prohibits the use of appropriated funds to pay the salary of any federal official who prohibits or prevents other federal employees from communicating with Congress. The history of the act traces back to Congress’s concerns over executive orders by Presidents Theodore Roosevelt and Howard Taft to prohibit federal employees from contacting Congress except through the head of their agencies. Leveraging this act to punish federal officials, or heads of agencies, who curtail Congress’s access to information has two added advantages. First, unlike the DCIA, the act will allow for withholding of full salary. Second, the procedures currently in place for triggering the act are favorable to the legislative branch.
The main body in charge of enforcing this provision, since its adoption, has been the Government Accountability Office (GAO). GAO is among the more esoteric government offices in Washington, D.C. The agency exerts a tremendous amount of power and influence over distribution of the federal budget, second, perhaps, to the Treasury Department. It owes some of this unique influence to its status as a legislative agency. Given the agency’s close ties to Congress, relying on GAO’s discretion removes the perennial problem of dealing with executive departments that are often unaccommodating in enforcing contempt power. Second, and perhaps more importantly, Congress has previously triggered the process of GAO’s reviews of violations under the act by merely sending a request letter to GAO, as opposed to taking a full vote in the House. GAO’s exercise of this power has been met with executive pushback in the past, particularly the claim that enforcement of the act violated the executive privilege. GAO has addressed such concerns before, asserting that “absent an opinion from a federal court concluding that [the provision] is unconstitutional,” the agency will continue to enforce it. GAO continues to make its own determinations of the balance between the executive privilege interest and Congress’s need for information.
Although the possibility remains that executive officials might refuse to comply with the final finding in any of the above scenarios, these strategies will still shift the legal advantage to Congress. Unlike in cases of civil or criminal contempt, in which the executive official’s obligation to comply triggers after obtaining a court judgment, the options above place the officials under a legal obligation to comply first and seek judicial redress later. This might shift the burden associated with time-consuming and inexpedient court litigation, as Congress can enforce its punishment first and leave it to the executive branch to reverse the decision in the courts.
Relying on a congressional power to fine federal officials without resorting to courts will undoubtedly shift the political incentives during ongoing high-profile investigations. Should the Democratic leadership decide to experiment with exercising this power, the decision will likely be challenged in the courts. The courts will have to provide a conclusive answer on its propriety—but any thorough review of the history and legal precedent behind congressional investigations power in America, however, would suggest that Congress will prevail.
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Graham Cluley Security News is sponsored this week by the folks at Recorded Future. Thanks to the great team there for their support! At Recorded Future, we believe every security team can benefit from threat intelligence. That’s why we’ve published “The Threat Intelligence Handbook.” It’s aimed at helping security professionals realize the advantages of threat […]