What law governs Congress’ ability to hold someone in contempt?
A law enacted in 1938 – 2 USCA § 192 – says that any person who is summoned before Congress who "willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry" shall be guilty of a misdemeanor and subject to a maximum $1,000 fine and 12 month imprisonment.
So Congress can convict anyone of contempt for any matter?
While its power is broad, there are limits to what Congress can do. Before a congressional witness can be convicted of contempt, it must be established that the person being charged has something to do with a subject that Congress has the constitutional power to legislate.
In other words, Congress cannot just go after anyone for anything. Congress must have the authority to look into a matter in order to bring contempt charges against someone who is preventing them from getting information on that matter.
Also, a person cannot be made to answer questions if there is a legal basis that allows them not to answer – such as the right against incriminating yourself guaranteed in the Fifth Amendment.
What is the process of finding someone in contempt?
Once a contempt citation is issued, a vote must be taken.
The vote can take place in a House or Senate committee or on the floor of either the House or Senate.
A simple majority of the body is needed to support a finding of contempt.
Then what happens?
After the vote is taken and if the matter passes the full House, the speaker of the House turns the matter over to the U.S. attorney for the District of Columbia.
It’s the same process for the Senate – if a vote passes, the matter is turned over to the U.S. attorney for the District of Columbia.
The U.S. attorney could then decide if the matter is to be pursued and would bring the issue before a grand jury.
If prosecuted and convicted of contempt of Congress, a person could be fined up to $1,000 and sentenced to a year in jail.
Is there anything else Congress could do?
There is a method that has not been used for many years but is an option for the leadership in Congress.
A method called "inherent contempt" would allow a person to be arrested by the sergeant-at-arms of the House or Senate and brought before the accusing legislative body for a trial.
If convicted, the person could be imprisoned until they agree to comply with what Congress wants from them.
They can be held in jail until the end of the current congressional session – that would be Jan. 3, 2021 – or they could be released whenever Congress decides to let them go before Jan. 3, 2021.
If the House were to invoke inherent contempt charges, technically the person could be imprisoned in a spare room at the Capitol, a Capitol Police holding cell or a nearby hotel.
However, this is not likely to happen. Inherent contempt has not been used since 1935.
What is likely to happen?
If a deal cannot be worked out, Congress is likely to bring a civil lawsuit asking a judge to get involved. If the judge rules that a person must answer questions or surrender documents, then the person must do so or face contempt of court charges.
Contempt of court is usually enforced with daily fines or imprisonment.
Chairman Jerrold Nadler, D-N.Y., left, and Ranking Member Rep. Doug Collins, R-Ga., right, speak following a House Judiciary Committee hearing without former White House Counsel Don McGahn, who was a key figure in special counsel Robert Mueller's investigation, on Capitol Hill in Washington, Tuesday, May 21, 2019. President Donald Trump directed McGahn to defy a congressional subpoena to testify but the committee's chairman, Rep. Jerrold Nadler, D-N.Y., has threatened to hold McGahn in contempt of Congress if he doesn't appear.