Contempt of Congress, Non-Members, and Jurney v. MacCracken


Contempt of Congress

My Country – Contempt of Congress

On April 23, 1917, the Supreme Court held that Congress could not hold in contempt a US Attorney, who wrote a letter, charging that a subcommittee of the Judiciary Committee was endeavoring to interfere with investigations being made by a grand jury.

Historically, the House of Representatives could hold a non-member in contempt for attempting to bribe a Congressperson. Today, though, a non-member is held is contempt when they fail to comply with a subpoena.

Once a body of Congress has a contempt citation, the full chamber debates the charge like any other resolution. Members can filibuster and it moves with the same procedural rules as any other resolution. A majority vote must approve contempt of Congress. Once approved, Congress turns the matter over the U.S. attorney for the District of Columbia. That person may bring the matter before the grand jury.

Ironically, some believe the U.S. Attorney must bring a charge of contempt of Congress to a grand jury. But recently, the EPA Administrator under President Reagan, Anne Gorsuch, mother of the new Supreme Court Justice, never went before a grand jury. The Justice Department at the time refused to prosecute the case.

Over the years, the Supreme Court has issued many rulings regarding contempt of Congress.

Marshall v. Gordon, 243 U.S. 521 (1917)

The a Congressman charged the District Attorney of the Southern District of New York with misfeasance. After that concluded, the grand jury in the Southern District was investigating alleged illegal conduct of the Congressman. But before the grand jury issued any indictment, the Congressman requested the Judiciary Committee look into the charges against the District Attorney as impeachable offenses. A subcommittee was then appointed that the office of the District Attorney felt interfered with the grand jury proceedings.

At this point, the District Attorney address a leader to the chairman of the subcommittee stating he was the informant to a recent newspaper article that the subcommittee was investigating. The subcommittee then made a report concluding that the letter was “defamatory and insulting and tends to bring the House into public contempt and ridicule.” They found that the District Attorney was guilty of contempt of the House of Representatives.

The Court held this writing was no obstruction to the performance of legislative functions. The implied authority of holding a non-member in contempt needed to focus on the legislative powers. The Constitution did not guarantee this right, so it needed to flow from the rights granted.

Jurney v. MacCracken, 294 U.S. 125 (1935)

In 1935, the Court held the Senate had the power to punish for contempt of Congress when a witness had permitted the destruction of papers.

William P. MacCracken was arrested on February 12, 1934 when he declined to appear before the Senate. The citation directed MacCracken to show casue why the Senate should not punish he and two others for destroying papers.

Under a resolution from future Supreme Court Justice Hugo Black, the Senate established a special investigatory committee to inquire into the government’s system of awarding of air and ocean mail contracts. When called before the Special Committee to Investigate Air Mail and Ocean Mail Contracts, the participants failed to cooperate. One of those individuals was MacCracken. He asserted the papers were protected by attorney-client privilege. After the committee appealed again for the documents, MacCracken failed to cooperate and he ordered the removal and destruction of the papers.

To recover some of the documents, Hugo Black asked two postal workers to sort through trash bags searching for scraps of papers.

First, MacCracken argued that Congress could not use the contempt power just for punishment. Congress could only use the power if the non-member infringed on their legislative duties. However, writing for the majority, Justice Brandeis stated that the destruction of the papers were of a nature to obstruct the legislative process.  He noted that Congress has asserted the right to punish a private citizen for a past and completed act since the beginning of our country.


Generally, Congress disciplines members when they get out of bounds. But they do not deal too often with non-members. When they do, it has become a political tool. White House Staff and officials become the most common targets. Congressional committees held Jack Quinn, Harriet Miers, Janet Reno, Eric Holder, and Josh Bolton all in contempt. Most recently, the House Committee on Oversight and Government Reform held Bryan Pagliano, the IT director for Hillary Clinton, in contempt for not appearing before the committee in September 2016. Nothing has happened since.

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