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What Are Contempt of Congress and Executive Privilege?

Contempt of Congress and Executive Privilege, Explained

The U.S. Congress has the power to demand testimony and documents and to hold accountable those who refuse to comply. Presidents can wield the power known as executive privilege to declare swaths of information off-limits to the legislative branch. This clash between two co-equal branches of government is playing out as Congress tries to get information on the Jan. 6 assault on the U.S. Capitol. Stephen Bannon, the former adviser to then-President Donald Trump, has been indicted for defying subpoenas by the special congressional committee investigating the assault.

1. Whose testimony can Congress demand?

Almost anyone’s it wants to hear. America’s founders didn’t include a power of investigation in the U.S. Constitution. But the British Parliament had long conducted inquiries as part of the process of developing legislation, and Congress quickly decided that it needed to do the same. The courts have set some limits, most importantly the requirement that investigations relate to true legislative purposes. When the House or Senate believes it’s being wrongly rebuffed, it can vote to hold a person in contempt of Congress.

2. What did Bannon do?

At Trump’s direction, he refused to testify or provide documents to the select committee. The House of Representatives voted 229 to 202 on Oct. 21 to hold Bannon in contempt, setting the stage for the Justice Department’s indictment. 

3. What is contempt of Congress?

It’s a misdemeanor defined in the U.S. federal legal code as when a witness summoned by Congress “to give testimony or to produce papers” refuses “to answer any question pertinent to the question under inquiry.” Failure to comply is punishable by a fine of up to $1,000 and up to a year in jail. (The House interprets the law differently and says the fine could be as high as $100,000.) One purpose of pursuing contempt of Congress charges is deterrence, according to the Congressional Research Service: “A criminal prosecution of a witness may not result in a committee obtaining the testimony sought, but it could significantly deter other parties from refusing to cooperate with an ongoing or future investigation.”

4. What’s the case for not cooperating with the inquiry?

Trump is trying to use executive privilege claims to keep information from the committee. President Joe Biden has supported the release of documents requested by the committee, and a former president’s claims of executive privilege over the objections of the current president is an issue courts haven’t resolved before. 

5. What is executive privilege?

It’s the limited right of the president to decline requests from Congress and the courts for information about internal White House talks and deliberations. The privilege is supposed to provide a safe space for presidents to get candid advice from aides without the concern that they’ll later be called to testify. Though U.S. presidents have claimed a right to confidentiality in the face of congressional demands virtually since the founding of the republic, the U.S. Supreme Court first recognized executive privilege in 1974 in the endgame to the Watergate scandal, when President Richard Nixon, claiming absolute protection of all presidential communications, tried to withhold audio tapes of Oval Office meetings and other evidence demanded by a special prosecutor. Even as it rejected Nixon’s specific argument, the court agreed that a president generally does have an interest in maintaining White House secrecy.

The Reference Shelf

  • The story on the House vote to hold Bannon in contempt.
  • The contempt of Congress statute.
  • Congressional Research Service reports on contempt of Congress and executive privilege.
  • Trump’s lawsuit seeking to bar the release of documents to the Jan. 6 committee on the grounds of executive privilege, and a federal judge’s ruling rejecting his argument.

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