Legislative Contempt Power
LEGISLATIVE CONTEMPT POWER
Anglo-American legislative bodies have exercised the power to punish nonmembers for contempt of their dignity and proceedings since the time when the High Court of Parliament exercised undifferentiated legislative and judicial power. There is no explicit constitutional warrant for the exercise of the power by Congress, but Congress has exercised it, nonetheless, at least since 1795. There were several instances in the nineteenth century of summary judgments being rendered against nonmembers for such acts of contempt as publishing abusive language about Congress or attempting to bribe its members. In Anderson v. Dunn (1821) the Supreme Court held that the power to punish contempts—at least of the latter sort—was inherent in "a deliberate assembly, clothed with the majesty of the people." In kilbourne v. thompson (1881), however, the Supreme Court held that Congress did not possess common law power to punish as contempt Kilbourne's failure to produce documents subpoenaed by an investigatory committee for a nonlegislative purpose.
Congress defined the statutory offense of contempt of Congress in 1857; this offense was triable before the house against which the contempt was committed, and a contemnor, once convicted, might be confined in the Capitol for the duration of the congressional session. Contempt of Congress remains a statutory offense, but it is no longer prosecuted at the bar of the house. Because bribery of members of Congress is now punishable as a separate offense, the most common contemporary form of contempt of Congress is refusal to testify at or to provide evidence for legislative investigations. The presiding officer of the offended house (ordinarily only if directed by a vote of the full house) certifies the circumstances of the contempt to the United States attorney in the district where the contempt was committed; the federal attorney may then prosecute the contemnor in federal court.
Dennis J. Mahoney