An Interview with Professor Donald Elder : What Exactly is “Contempt of Congress ” and What Does it Mean?

Jul 1, 2012 by

Hollywood 10 – Samuel Ornitz, Ring Lardner, Albert Maltz, Alvah Bessie, Lester Cole, Herbert Biberman and Edward Dmytryk

Michael F. Shaughnessy –

1) Professor Elder, let’s go back to around the year 1776. Our forefathers were declaring independence, and setting up as I recall, a Continental Congress–or is my time line off on this ?

When the British Parliament passed the Coersive Acts in 1774 (known to the colonists as the Intolerable Acts) after the Boston Tea Party, colonial leaders decided that they would not simply accept the punitive legislation without protest. They therefore called on the colonies to send representatives to a meeting in Philadelphia to discuss a response. 12 colonies sent representatives (Georgia did not participate), and since much of British North America was represented they called themselves the Continental Congress. They adopted a boycott of British goods and adjourned in September of 1774, resolving to resume in May of 1775. By that time the battles of Lexington and Concord had taken place, so the group that came together in Philadelphia (technically known as the Second Continental Congress) became the legislative body that guided us to independence.

2) Fast forward a few years to the first President of the United States- George Washington- who served two terms for 8 years, as I recall. During that time was there ever any inkling of dissatisfaction from the Congress with his leadership or anything that could warrant a ” Contempt of Congress ” vote?

Contrary to popular belief, Washington did indeed make members of Congress unhappy, especially during his second term with his handling of foreign policy. The low point in the process came when, while discussing a proposed treaty, Washington simply stopped testifying and walked out on the Senate Foreign Relations Committee. But such was his stature that Congress never seriously contemplated finding him in contempt.

3) Now, who was the first either President or Senator, or elected official that warranted a ” Contempt of Congress ” vote and what was the outcome?

Technically, members of Congress are never held in “contempt of Congress.” They can be censured and removed from their seat (as happened to Congressman Preston Brooks from South Carolina in 1857 after he brutally beat Senator Charles Sumner in the Capitol Building). The only president to have ever been censured was Andrew Jackson in 1834. No president or vice president was ever considered for a vote of contempt until 1974, when Richard Nixon seemed unwilling to hand over the tapes relating to Watergate. He avoided that fate by turning over the tapes, but by doing so he started the process that led to his resignation.

4) Worst case scenario in a “Contempt of Congress” landscape—obviously embaressment, and public scorn and ridicule- are all part and parcel- but what has been the worst outcome for any elected official?

Rita Lavelle, an official in the Environmental Protection Agency, was found in 1984 to be in contempt of Congress and was sentenced to six months in prison. She wound up serving three months.

5) Procedurally, Dr. Elder, how does this process start, and is there any one person that provides the leadership, if you will in this sad state of affairs?

Contempt involves a person refusing to testify before a Congressional committee. If the committee feels that a person is not supplying the information they seek, they can recommend to the whole branch of Congress they represent that the individual be held in contempt.

6) I know you are not a Constitutional attorney, but what specific item in the Constitution allows Congress to bring forth this ” Contempt of Congress ” procedure?

There is no specific mention of “Contempt of Congress” in the Constitution. But in the mid-1790s, Congress asserted that compelling individuals to give testimony was a power that was implied in the Constitution. That assumption has twice been validated by the Supreme Court.

7) Now, historically, can you list any Presidents that have the dubious distinction of having a “Contempt of Congress” scenario brought against them?

As noted above, Richard Nixon was the first person to be considered for designation as being in contempt. Even Andrew Johnson, the first president to be impeached, was never found to be in contempt, so the potential action of Congress in 1974 regarding Nixon was indeed ground breaking. Since 1974, Bill Clinton was impeached, but here again contempt was never seriously contemplated.

8) Is there some member of Congress- perhaps an archivist that keeps track of these procedures? Does this go into the Congressional Daily Record?

There are indeed meticulous record that have been kept of every meeting of Congress since 1789, including committees. Anyone interested in the subject of contempt of Congress can read anything that was ever said in either the House or the Senate.

9) Could a ” Contempt of Congress” be brought against a Senator or Representative or perhaps even a Supreme Court Justice ? A Governor or a Mayor ? Or any elected official?

As previously noted, members of Congress who earn the wrath of their colleagues are handled internally with censure or expulsion. Anyone else could be considered fair game for a contempt citation.

10) As a historian, what immediately springs to mind when you hear “Contempt of Congress”?

I always think of “the Hollywood Ten.” These were writers and directors subpoenaed by the House Unamerican Activities Committee who refused to testify about supposed Communist infiltration of the film industry. Sometimes Congress is quite justified in bringing action against individuals who refuse to give testimony, but the Hollywood Ten case reminds us that the threat of contempt can sometimes be more political theater than an actual search for information.

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