On Wednesday, the House of Representative voted to hold Lois Lerner in contempt of Congress for her refusal to testify when called in front of the Oversight Committee. Even though it’s unlikely that Eric Holder’s Justice Department will pursue the charge, there’s an authority that stretches back to the 18th century that may allow for Lerner’s imprisonment without the DOJ.
If Issa wants to, he can pursue what is called “inherent contempt” and allows for imprisonment of individuals in the Capitol in order to force compliance with the authority of Congress. Such a move hasn’t been made since 1935, however it’s definitely an option in Lerner’s case since she’ll more than likely get protection from both Obama and Holder.
Inherent contempt is different from criminal contempt because it’s not as definite. In other words, once the imprisoned party complies with the demands of Congress they’re free to go so it has a coercive effect as opposed to criminal contempt which is punitive.
The authority of Congress to independently try and detain individuals has been upheld by the Supreme Court twice, once in 1821 and once in 1927, and prior to 1935 there was a long history of using this power. Also, both the House and the Senate have this authority although the Senate has more stringent rules regarding the use of it.
The first inherent contempt proceedings were held in 1795 against two men who were accused of bribing members of Congress. Over the next six decades Congress would initiate 13 more inherent contempt cases.
Interestingly enough, the criminal contempt statute came after inherent contempt as a mean to be more efficient. Trying witnesses at the bar of the House chamber was seen as too time consuming and took away from the legislative duties of Congress.
Individuals rounded up by the sergeant-at-arms can either be detained at the Capitol or they can be turned over to the city to be jailed.
With a bipartisan vote to hold Lerner in contempt having passed yesterday it’s unlikely that inherent contempt will be used. However the next target of the House is John Kerry, who just announced that he will be traveling to Mexico on the day that he was subpoenaed to testify before Congress regarding Benghazi. With Trey Gowdy at the helm of the investigation there’s a good possibility he would pursue this option if Kerry refuses to comply.
Do you see this as a viable option for either Lerner or Kerry? Let us know with a comment!