Congress mothballs its inherent contempt power
An earmark of an institution engaged in self-immolation,
March 29, 2023
Letters to the Editor
The Washington Post
Re: In feud over Afghanistan, House panel subpoenas State Dept.,” (News story by Missy Ryan, A2, March 29, 2023)
To the Editor:
Contrary to the legal experts consulted by Missy Ryan, Congress commands plenary inherent contempt power to enforce its subpoenas, including intramural communications in the State Department. The United States Supreme Court unanimously affirmed in McGrain v. Daugherty (1927) that the inherent contempt power of Congress is coextensive with that of federal courts, including incarceration or fines for subpoena defiance. The Court tacitly recognized that criminal prosecution by the Department of Justice is too dicey and slow and that civil litigation in federal courts is too lead-footed to secure subpoena compliance in a politically relevant time frame. Congress has chosen to mothball its inherent contempt power in the century since McGrain for lack of political will and should be called out for its abdication.
Sincerely,
Bruce Fein, associate deputy attorney general under President Reagan, 1981-83, and author of Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy
300 New Jersey Avenue, N.W., Suite 900
Washington, D.C. 20001
Phone: 202-465-8728; 703-963-4968
Email: bruce@feinpoints.com