Adobe Images The inherent power of Congress to jail or fine recalcitrant witnesses has become somewhat of an obscure footnote in the ongoing tug of war between the legislative branch and the executive.
It was last used in 1935, though there was an unsuccessful effort to employ it against Attorney General Merrick Garland during the Biden administration. But with the looming prospect of a Democratic House seeking oversight of a stubbornly uncooperative Trump administration, attention has turned to just how Congress can enforce its subpoenas for administration documents and witnesses.
Criminal remedies are off the table, as that approach relies on the Trump Justice Department for enforcement. And with civil enforcement looking at a two- to three-year window for resolution, it seems inevitable that use of Congess’s inherent power to punish or coerce compliance will become an urgent consideration.
There is, however, a problem. The Supreme Court has on three occasions found that Congress does possess such power, and the Justice Department’s Office of Legal Counsel has also recognized it as a legitimate legislative tool, albeit a limited one in the face of a claim of executive privilege.
But both the court and the Justice Department have missed an important and historical constitutional fact in their analysis: the framers, during the Constitutional Convention in 1787, explicitly considered and decided to deny Congress any summary powers of enforcement.
Legislative power to punish third parties grows out of the centuries-long battle between Parliament and royal prerogative in Great Britain. Parliament claimed certain “privileges” of its members to remain free from the king’s interference — privileges that came to include being free from insult, criticism and defiance of witnesses to testify or provide documents.
The earliest legislative bodies in the colonies wholeheartedly embraced and adopted these privileges. The first of these bodies, the Virginia House of Burgesses, used that power in 1619 to punish Captain Henry Spellman for speaking irreverently about the colonial government.
The colonial and subsequent state governments in the 17th and 18th centuries used these powers robustly. As Mary Patterson Clarke, an historian of legislative privilege in the Americas, wrote in “Parliamentary Privilege in the American Colonies,” “Literally scores, probably hundreds,” of miscreants and recalcitrant witnesses were tracked down, arrested and brought to the bar of the assemblies to face summary justice at the hands of their representatives.
Of the 55 men who gathered in Philadelphia in 1787, 42 of them had previously served in a colonial or state legislature. Nearly all of them had been witness to the summary procedures used in the exercise of legislative privilege. It was against this backdrop that many spoke out against legislative excess as they went about the business of creating a new constitution.
Madison himself spoke out forcefully in favor of providing clear written limitations on legislative power. “Experience had proved a tendency in our governments to throw all power into the Legislative vortex,” he said, advocating an effective check on that power in the Constitution. The early drafts that emerged from the convention contained a limited grant of “privileges” to the legislature, but later Charles Pinckney of South Carolina proposed that “each house shall be the Judge of its own privileges.” Madison later rose to speak against the provision and expressed “doubts as to the propriety of giving such power.”
The proposal was defeated. The final version of the Constitution that went to the states for ratification granted to Congress only the privilege to be free from arrest during congressional attendance.
Despite this history — and demonstrating that old habits die hard — one of the earliest Congresses sought to flex its privilege muscles to imprison summarily a newspaper editor for publishing an article critical of congressional action. Though mired in the politics of the day, the ensuing debate gives a glimpse of what the framers’ intent had been. And the chief explainer during the debate, ironically, was Pinckney, the man whose proposal of enshrining broad privileges in the constitution had been voted down.
Pinckney spoke forcefully in the Sixth Congress against any use of privilege to punish third parties: “The Convention which formed the Constitution well knew that this was an important point, and no subject had been more abused than privilege. They therefore determined to set the example, in merely limiting privilege to what was necessary, and no more.”
Despite the imprimatur of one of the key framers on this issue, the full Senate voted that the editor had committed a grave breach of privilege and ordered his arrest.
Does it matter that, a few years after the ratification of the Constitution, Congress voted to use its privileges to arrest and try to imprison a third party? Or that in the 200-plus years since 1800 the Supreme Court has found such legislative activity to be constitutional? In this age of original intent, surely it means something that the people who wrote the document intended to deny Congress the authority to summarily punish third parties.
Richard Sauber is a lawyer in private practice in Washington. He served as special counsel to former President Joe Biden.
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