Analysis by Elad Hakim | Photo: Alamy
The chairman of the House Oversight Committee recently threatened to hold FBI Director Christopher Wray in contempt of Congress due to the FBI’s refusal to “produce a form believed to describe a “criminal scheme” involving President Joe Biden” pursuant to a lawfully issued subpoena.
Failure to comply with a subpoena is punishable
Congress has several tools at its disposal to punish those who fail to comply with congressional subpoenas.
According to 2 U.S. Code, Section 192,
“Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.”
When Congress subpoenas someone to testify or produce documents, the individual must appear or produce the documents absent a legitimate reason not to. Failure to comply with a congressional subpoena can result in serious consequences, including a finding of contempt.
If Congress finds someone in contempt, Congress has several options. Specifically, Congress can utilize its own inherent contempt authority, the criminal contempt statute, and/or various civil enforcement mechanisms.
The civil contempt route allows Congress to pursue civil remedies by way of the courts due to non-compliance. Many times, such civil remedies come in the form of a declaratory judgment action or a civil enforcement action where the moving party asks the court to find that the individual is legally obligated to comply with the subpoena.
Congress may also utilize its criminal contempt powers. In such cases, once Congress votes to hold someone in criminal contempt, Congress would refer the matter to the U.S. Attorney, who would then decide whether to bring criminal charges. In this case, Wray is the director of the FBI, which makes criminal contempt more difficult. In essence, House Republicans would be asking the US Attorney to enforce a subpoena against a member of the executive branch. As explained in a 2017 Congressional Research Service report:
“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 President directs or endorses the non-compliance of the official, such as 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 DOJ will not pursue a prosecution for criminal contempt. The U.S. Attorney would likely rely on prosecutorial discretion as grounds for not forwarding the contempt citation to the grand jury pursuant to 2 U.S.C. §194.”
The same report concluded that enforcement against an executive official by way of civil proceedings could also be challenging, noting “In light of these practical realties, in many situations Congress likely will not be able to rely on the executive branch to effectively enforce subpoenas directed at executive branch officials, nor will reliance on the civil enforcement of subpoenas through the judicial branch always result in a prompt resolution of the dispute.”
As a last resort, House Republicans could possibly turn to Congress’s inherent contempt authority. As explained in Constitution Daily, “Under inherent contempt proceedings, the House or Senate has its Sergeant-At-Arms, or deputy, take a person into custody for proceedings to be held in Congress.”
While this process can be cumbersome, as it oftentimes requires the questioning of witnesses, the introduction of evidence, etc., much of this work can be done by one or more select committees, thereby reducing the strain and time commitment on the entire House and/or Senate.
As set forth in the report, “Under the inherent contempt power the individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned or detained in the Capitol or perhaps elsewhere.”
Congress has several tools at its disposal to enforce a properly issued subpoena. As reported by the Washington Examiner, chairman of the House Oversight Committee James Comer, R-Ky., recently said the following about Wray, “We will do everything we can to hold him accountable. We are not messing around.”
Time will tell just how serious they are.
Mr. Hakim is an attorney and columnist. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, American Thinker, and other online publications. He is also a regular guest on OANN’s Tipping Point, and has appeared on Newsmax, The Jenna Ellis Show, Steadfast and Loyal Podcast with Allen West, The Dave Weinbaum Show, and Real America’s Voice. The views expressed herein are the author’s own and do not constitute legal advice.