constitutional-law first-amendment congress
Will a contempt of congress lawsuit actually reach the merits?
<p>Hypothetical Scenario: Kellyanne Conway is subpoenaed by the House Oversight committee for Hatch Act violations. Conway appears but tells the chairman that he is a fraudulent partisan grandstander, a disgrace to Congress and is carrying out a ridiculous preposterous hearing that she feels is absolutely unpredicated on any legal basis and that she will not give credibility to the hearing by answering even a single question. But keep in mind, she honored the subpoena and showed up for the hearing.</p>

<p>Now, the House holds her in contempt for insulting the chairman and refusing to answer questions and applies the imprisonment penalty to her. She appeals her penalty to the courts saying that her first amendment rights are being violated as the government is penalizing her for speaking her mind and compelling her to speak against her intent.</p>

<p>Will this case be decided on the merit of Conway's contention - that the investigation is fraudulent (that is her reasons for not answering questions and berating the chairman) or will it only be decided on the statue that Congress has the power to hold her in contempt and the courts will not second-guess Congress' decision and accept whatever reason Congress gives them?</p>

<p>"Contempt of Congress" does not extend, in a legal sense, to insulting Congress as a whole, one house, a committee chair, or a member. (Congress and its committees have power to require both members and witnesses to abide by its rules of decorum, which forbid such insults, but as far as I know the remedy is merely to remove the disorderly person.) </p>

<p>Contempt of congress is defined by <a href="https://www.law.cornell.edu/uscode/text/2/192" rel="noreferrer">2 USC 192</a>, which provides that:</p>

<blockquote>
  <p>Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.</p>
</blockquote>

<p>Note that this is a Federal criminal statute like any other, and Congress does not normally "declare" a person guilty, much less "apply the imprisonment penalty". Charges would have to be brought before a federal court, and the person convicted by a jury, or by a judge if a jury trial was waived. </p>

<p>Congress does have the "inherent power" to hold trials for contempt itself, but this has not been done since 1934. This power was upheld by the Supreme Cout in <a href="https://supreme.justia.com/cases/federal/us/19/204/" rel="noreferrer"><em>Anderson v. Dunn</em> 19 U.S. 204 (1821)</a></p>

<p>A conviction under 2 USC 192 for refusal to answer questions on the part of a witness under subpoena was upheld against a First Amendment challenge in <em>Wilkinson v. United States</em>, 365 U.S. 399 (1961) In that case, according to the <a href="https://en.wikipedia.org/wiki/Contempt_of_Congress#Subpoenas" rel="noreferrer">Wikipedia article</a>, a standard for testing subpoenas was declared by the US Supreme court:</p>

<blockquote>
  <p>As announced in <em>Wilkinson v. United States</em>, a Congressional committee must meet three requirements for its subpoenas to be "legally sufficient." First, the committee's investigation of the broad subject area must be authorized by its chamber; second, the investigation must pursue "a valid legislative purpose" but does not need to involve legislation and does not need to specify the ultimate intent of Congress; and third, the specific inquiries must be pertinent to the subject matter area that has been authorized for investigation. </p>
</blockquote>

<p>Thus, in considering such charges, it is a proper defense that the subject matter of the hearing was not withing the power of Congress to investigate, or that the questions were not relevant to the subject. The court would consider these issues if they were raised by the defense. But the political "merits" of the investigation -- whether it is a wise use of the Congressional power, would not be considered.</p>

<p>A similar question was considered by the Supreme Court in <a href="https://supreme.justia.com/cases/federal/us/421/491/" rel="noreferrer"><em>Eastland v. United States Servicemen's Fund</em>, 421 U.S. 491 (1975)</a>.  The Court held, citing precedent, that if the Committee's activities are within the "legitimate legislative sphere" then the courts cannot interfere with the subpoena, since the Speech and Debate clause of the Constitution forbids those members of Congress from being "questioned in any other place" about their Congressional activities.  The standard set in <em>Gravel v. United States</em> is whether the subpoena is</p>

<blockquote>
  <p>"an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House."</p>
</blockquote>

<p>Or, as written more succinctly in <em>McGrain v. Daugherty</em>,</p>

<blockquote>
  <p>The subject of any inquiry always must be one "on which legislation could be had."</p>
</blockquote>

<p>So your hypothetical Conway could sue to claim that the subpoena is improper; but she would have to show that it does not pass the test given above.  This seems difficult, in general.  As long as the inquiry <em>could</em> be related to passing legislation or other legitimate purposes, the courts won't question whether that actually <em>is</em> the Committee's motivation.</p>
