What Is Contempt of Congress? Your Questions Answered

Congress considers the unusual action against Attorney General Robert Barr.

Attorney General William Barr’s decision to refuse to appear before the House Judiciary Committee Thursday has sparked a new round of political ire and threats.

House Speaker Nancy Pelosi, in a press conference Thursday, accused Barr of lying to Congress, saying “the attorney general of the United States of America was not telling the truth to the Congress of the United States. That's a crime.” The Justice Department quickly returned fire, saying "The baseless attack on the Attorney General is reckless, irresponsible and false.”

Meanwhile, House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) on Wednesday evening threatened the Attorney General with a contempt citation if he does not reach a “reasonable” agreement within “the next day or two” on the issue of a subpoena for an unredacted version of special counsel Robert Mueller's report.

Curious how much of this is hot air and what’s real? Here are a few things you should know.

What is contempt of Congress?

If someone refuses to testify or provide information to an investigation by House or Senate, that body can respond with a contempt citation. While it’s not specifically spelled out in the Constitution, the Supreme Court has said several times that Congress has the right to compel people to comply when it’s overseeing an inquiry.

Once a contempt citation is issued, the full body--the House, in this case, but sometimes the Senate--debates and then votes on the matter. A majority vote is all that’s needed. The chambers work separately on contempt matters, meaning the House does not need the Senate’s blessing to move the contempt case forward.

What are the penalties for contempt of Congress?

Assuming the finding is prosecuted and there’s a conviction (which is far from a sure thing), people cited can pay fines of up to $10,000 and face up to one year in prison. The offense is a federal misdemeanor.

Who enforces a contempt of Congress finding?

If the citation passes the full House or Senate, it’s handed over to the U.S. attorney for the District of Columbia “whose duty it shall be to bring the matter before the grand jury for its action.”

This is where it gets tricky, though, especially when it’s the Attorney General who’s being cited. That U.S. attorney works for Barr. And the Justice Department ultimately will decide whether or not to prosecute the person found to be in contempt. The odds of the department going after the top law enforcement official in the country? Pretty low.

What happens if this becomes a court battle?

This seems the most likely outcome should the House issue a contempt finding against Barr. And it’s certainly within the rights of Congress. The Trump administration, though, has been fighting every legal attempt by Democrats to obtain additional information about his family finances or business dealings--and would likely fight against an unredacted version of the Mueller report just as ferociously.

That means things would likely be bogged down until well after the 2020 elections at the very least. Probably longer.

Has Congress ever held an Attorney General in contempt before?

Holding an Attorney General in contempt might sound extraordinary, but it has happened more frequently than you might think. In 1998, Janet Reno was cited for contempt of Congress after not turning over internal memos related to a campaign finance controversy during Bill Clinton’s impeachment. (The full House never voted on the resolution.) And Eric Holder was found in contempt by the full House in 2012 during the investigation of botched gun-trafficking sting by the ATF. He was later cleared of any wrongdoing.

Congressional contempt citations are still a fairly rare occurrence, though, happening less than 30 times since 1980.

Can Barr be arrested without involving the Justice Department?

It’s possible, actually, though much less likely. An authority known as inherent contempt allows the sergeant at arms of the House (or Senate) to arrest the person found in contempt and bringing them before that body for a full trial. If convicted, they’re imprisoned either until they agree to comply or until the two-year session of Congress ends.

Don’t hold your breath for this one. First, Congress hasn’t used it since 1935. And the sergeant-at-arms is going to have to get through an FBI security detail to make that arrest.