In April 2014, the Republican-controlled House Government Reform Committee passed a resolution charging former Internal Revenue Service (IRS) official Lois Lerner with contempt of Congress for refusing to testify before a congressional committee. What deeds or misdeeds comprise contempt of congress and what is the range of potential punishment?

What Lois Lerner Did

In two June 2013 Government Reform Committee hearings on the IRS’ “targeting” of certain nonprofit groups for “extra security” based on their names and conservative policies they advocated, Learner, who had headed the IRS’ tax-exempt status review section, refused to answer any of the committee’s questions, invoking her Fifth Amendment protection against self-incrimination.

“Documents and testimony point to Lois Lerner as a senior IRS official responsible for conduct that deprived Americans of their rights to free speech and equal protection under our laws,” said committee chairman Rep. Darrell Issa (R-California), in a press release.

While legal and constitutional experts argued at length over the validity of the Lois Lerner contempt resolution, proven contempt of Congress can result in criminal prosecution.

What is “Contempt of Congress?

According to a 2012 report from the nonpartisan Congressional Research Service (CRS), contempt of Congress is generally considered to be any act intended to subvert the legislative process or otherwise obstruct the efforts of Congress to exercise its constitutionally grated powers.

In general, contempt of Congress is the equivalent of the crime of obstruction of justice in the criminal court system. Congress’ power to hold individuals in contempt is how it responds to acts that in its view obstruct the legislative process. Charges of contempt of Congress may be used to either force compliance, punish the persons involved, or to simply remove the obstruction.

Since the first case of contempt of Congress occurred in 1795, Congress has typically passed contempt resolutions in cases of intentional failure to comply with legally issued subpoenas, such as refusal to appear when subpoenaed to testify before a congressional committee, willfully lying to a committee or refusing to produce documents demanded by a subpoena.

It is important to note that anyone – not just government officials – can be charged with contempt of Congress.

The Power to Charge Contempt of Congress

According to the CRS, Congress’s power to charge and punish people for contempt comes from its power to investigate.

While the investigative power is not specifically granted in the Constitution, the Supreme Court has repeatedly confirmed that Congress has a very wide-reaching authority to investigate and obtain information, including confidential information, related to its legislative function and constitutionally granted powers.

Aside from misdeeds of government officials, Congress often investigates serious consumer-related incidents involving private-sector companies. For example, in April 2014, two congressional committees held hearings to investigate General Motors’ knowledge and handling of a defective ignition switch believed to have contributed to 13 deaths.

It is also interesting to note that the Supreme Court has held that only individuals, like Lois Lerner, can invoke the Fifth Amendment when testifying before Congress. Corporations, labor unions and other “artificial” organizations may not.

How Congress Can Deal With Contempt

According to the CRS, Congress has three options for dealing with contempt:

• Congress can ask a federal court to order an individual to appear, testify, turn over documents or otherwise comply with its subpoena. However, this option may become time-sensitive. As the CRS notes, seeking a court order “may prove an inadequate means of protecting congressional prerogatives due to the time required to achieve a final, enforceable ruling in the case.” For example, the current session of Congress might end before the courts act on the request.
   
• While the CRS calls it “long dormant,” meaning it was last used in 1821, Congress can, on its own initiative, detain and imprison people who refuse to comply with its subpoenas. According to CRS, while the Constitution does not explicitly grant Congress the authority to punish for contempt, except in situations involving its own members, the Supreme Court has ruled that the power is needed for Congress to protect itself. Without this power, Congress would be “exposed to every indignity and interruption, that rudeness, caprice, or even conspiracy, may meditate against it,” eloquently wrote the court.
   
• Congress can also ask the Department of Justice to pursue criminal prosecution against people who refuse to comply with its subpoenas. However, as the CRS report points out, presidentially-appointed Justice Department officials are rarely if ever willing to prosecute other presidentially-appointed executive branch officials  Most attempts at such criminal prosecutions of government officials “will likely prove unavailing in many, if not most, circumstances,” wrote the CRS.

In most cases, Congress will take the first option of asking a federal court to force compliance with its subpoenas.

Lois Lerner and the Fifth Amendment

Congress has always assumed that it is legally acceptable for witnesses called to testify before it to invoke their Fifth Amendment rights in refusing to answer questions.

However, in its resolution charging Lois Lerner with contempt, the House Government Reform Committee argued that she had voluntarily waived her Fifth Amendment rights by submitting a written opening statement in which she wrote, “I have not done anything wrong. I have not broken any laws. I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee.”

“Whereas,” states the resolution, “Ms. Lerner’s self-selected, and entirely voluntary, opening statement constituted a waiver of her Fifth Amendment privilege against self-incrimination because a witness may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details.”
As of April 15, 2014, neither the full House nor Senate had considered or acted on the contempt resolution against Ms. Lerner.