July 27, 2007 (LPAC)--The Congressional Research Service, in a report dated July 24, 2007 and made available by the Secrecy News Blog on the website of the Federation of American Scientists, reviews the history of the various contempt powers of the Congress, and concludes that the Congress does, indeed, have an inherent authority to bring contempt charges against individuals, to compel either cooperation, or production of documents, or for interfering with its legislative duties.

Furthermore, "inherent contempt has the distinction of not requiring the cooperation or assistance of either the executive or judicial branches. The House or Senate can, on its own, conduct summary proceedings and cite the offender for contempt." Congress's contempt power is not specifically granted by the Constitution, but is considered necessary (and the report describes in great detail the legislative history and case law behind this necessity) to investigate and legislate effectively.

Under this inherent 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 in the Capitol jail. This procedure has not been used in 1935 but the report cites court decisions concluding that statutory contempt proceedings, in cases where the Congress may submit a request for a grand jury proceeding, are alternatives to the inherent power, but not substitutes.

The report notes that the Department of Justice, through its Office of Legal Counsel, has taken the position that Congress cannot invoke either its inherent authority or statutory authority against officials of the executive branch acting on instructions of the President to assert executive privilege. The Bush Administration has been relying on these opinions, issued in the early 1980's, in its current refusal to turn over documents demanded by Congressional committees in the matter of the firings of U.S. attorneys. This includes President Bush's order to U.S. attorneys not to refer any contempt citation from the House or Senate to a grand jury. However, these opinions have never been tested in court.

The one time a case went to court, involving a House investigation of the Environmental Protection Agency during the Reagan Administration, the court refused to take the case on the basis that judicial intervention in executive-legislative disputes "should be delayed until all possibilities for settlement have been exhausted." The Reagan Administration eventually settled with the House by providing all of the requested documents in return for the House withdrawing its contempt citation.