CRS Annotated Constitution
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Other issues of the constitutional rights of witnesses have been raised at various times, but none has been successfully asserted or have even gained substantial minority strength.
Sanctions of the Investigatory Power: Contempt
Explicit judicial recognition of the right of either House of Congress to commit for contempt a witness who ignores its summons or refuses to answer its inquiries dates from McGrain v. Daugherty.238 But the principle there applied had its roots in an early case, Anderson v. Dunn,239 which stated in broad terms the right of either branch of the legislature to attach and punish a person other than a member for contempt of its authority.240 The[p.104]right to punish a contumacious witness was conceded in Marshall v. Gordon,241 although the Court there held that the implied power to deal with contempt did not extend to the arrest of a person who published matter defamatory of the House.
The cases emphasize that the power to punish for contempt rests upon the right of self–preservation. That is, in the words of Chief Justice White, “the right to prevent acts which in and of themselves inherently obstruct or prevent the discharge of legislative duty or the refusal to do that which there is inherent legislative power to compel in order that legislative functions may be performed” necessitates the contempt power.242 Thus, in Jurney v. MacCracken,243 the Court turned aside an argument that the Senate had no power to punish a witness who, having been commanded to produce papers, destroyed them after service of the subpoena. The punishment would not be efficacious in obtaining the papers in this particular case, but the power to punish for a past contempt is an appropriate means of vindicating “the established and essential privilege of requiring the production of evidence.”244
Under the rule laid down by Anderson v. Dunn,245 imprisonment by one of the Houses of Congress could not extend beyond the adjournment of the body which ordered it. Because of this limitation and because contempt trials before the bar of the House charging were time consuming, in 1857 Congress enacted a statute providing for criminal process in the federal courts with prescribed penalties for contempt of Congress.246
The Supreme Court has held that the purpose of this statute is merely supplementary of the power retained by Congress and all constitutional objections to it were overruled. “We grant that Congress could not divest itself, or either of its Houses, of the essential and inherent power to punish for contempt, in cases to which the power of either House properly extended; but because Congress, by the Act of 1857, sought to aid each of the Houses in the discharge of its constitutional functions, it does not follow that any delegation of the power in each to punish for contempt was involved.”247
[p.105]Because Congress has invoked the aid of the federal judicial system in protecting itself against contumacious conduct, the consequence, the Court has asserted numerous times, is that the duty has been conferred upon the federal courts to accord a person prosecuted for his statutory offense every safeguard which the law accords in all other federal criminal cases248 and the discussion in previous sections of many reversals of contempt convictions bears witness to the assertion in practice. What constitutional protections ordinarily necessitated by due process requirements, such as notice, right to counsel, confrontation, and the like, prevail in a contempt trial before the bar of one House or the other is an open question.249
It has long been settled that the courts may not intervene directly to restrain the carrying out of an investigation or the manner of an investigation and that a witness who believes the inquiry to be illegal or otherwise invalid in order to raise the issue must place himself in contempt and raise his beliefs as affirmative defenses on his criminal prosecution. This understanding was sharply reinforced when the Court held that the speech–or–debate clause utterly foreclosed judicial interference with the conduct of a congressional investigation, through review of the propriety of subpoenas or otherwise.250 It is only with regard to the trial of contempts that the courts may review the carrying out of congressional investigations and may impose constitutional and other constraints.
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