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Separation of powers

This week, the U.S. House Oversight Committee had scheduled a vote to hold FBI Director, Christopher Wray, in contempt of Congress. The issue stems from Wray’s refusal to comply with the Committee’s subpoena of a document that a whistleblower brought to the attention of Congress. The whistleblower alleged the FBI is in possession of a document called an FD-1023, a form the FBI uses to record incoming crime tips, that claims Joe Biden, when he was Vice President, was involved in a $5 million dollar bribe from the Ukranian government.   

Initially, Director Wray refused to provide any information about the alleged tip. This led to a back and forth between the Committee and the FBI. Incrementally, Wray confirmed that the tip form existed, then stated that the tip contained in the form was the basis of an ongoing investigation, then offered to allow the Committee Chairman, Jim Comer (R-KY) and the Ranking Member, Jamie Raskin (D-MD), to view the form at FBI headquarters, then finally allowed Comer and Raskin to view the form in a secure room at the U.S. Capitol. After viewing the tip form, Chairman Comer requested that the form be provided to the full Committee. Wray then refused to provide a copy of the form to the full Committee citing safety concerns for the informant due to the nature of the investigation and its ongoing posture. The investigation likely involves a broader investigation of the Biden family, particularly Hunter Biden, and their ties to foreign governments. The FBI did confirm, however, that the informant providing the information contained in the FD-1023 is a reliable and credible source used and paid by the FBI for years.

On Wednesday of this week, prior to the contempt hearing scheduled for Thursday, Director Wray capitulated to Chairman Comer’s demand that the document be provided to the full Oversight Committee. When and how that will be done has not yet been disclosed.

These machinations raise questions about how Congress holds people in contempt, and when it has done so, what happens next, particularly when the person held in contempt is a member of a co-equal branch of government.

In the 1917 case Marshall v. Gordon, the U.S. Supreme Court clarified Congress’s power to issue subpoenas in the use of Congress’s investigative role in oversight. Occasionally, individuals issued subpoenas by Congress refuse to comply, as has happened here. Congress may then resort to contempt power to force compliance.

Either chamber may begin contempt proceedings by proposing a resolution in a Congressional Committee. That is what occurred this week in the House Oversight Committee. If the committee votes in favor of the contempt citation, the proposal will move to the floor for a vote by the full chamber. If the resolution passes on the floor, the individual is formally cited for contempt of Congress.

A citation for Contempt of Congress is merely symbolic unless Congress decides to seek enforcement of the contempt citation. There are both criminal and civil enforcement mechanisms.

Title 2, Section 192 of the U.S. Code provides criminal penalties for contempt of Congress. This must be enforced, not by the Congress, but by the U.S. Department of Justice. The DOJ has discretion whether to take up the enforcement action or not. In this instance, the subject of the contempt action was the Director of the FBI, which is a DOJ agency. As such, and given that a subject of the investigation is the sitting President, who appoints the Attorney General as the head of the DOJ, the likelihood of the DOJ enforcing a contempt citation is zero or less.

If the executive branch refuses to enforce the contempt citation through the criminal process, Congress has a couple of other options.  

Congress can attempt to enforce contempt citations civilly by filing a lawsuit in Federal Court. The civil allegation would be that members of Congress have been denied the ability to exercise their Constitutional duties by the action of contempt on the part of the defendant.

Congress also has what has been described as inherent contempt powers. These powers are not found in statute or in the Constitution, but federal courts have found that enforcing contempt citations is within Congress’s inherent power. In these instances, none of which has occurred since the 1930s, a trial is held on the floor of the chamber invoking the power. If a majority of the chamber votes to enforce the contempt citation, the Congressional Sergeant at Arms may take the person into custody and detain them until they comply with the subpoena or until the end of the pending Congressional session.

It appears now that none of this will play out at this time on this particular issue. However, the U.S. House’s oversight of the FBI’s Biden family investigation is just getting started, so we will likely see repeats of this week. The separation of powers issues will likely get thornier as it all plays out.