House Options in Enforcing the Lois Lerner Contempt

The House has now held Lois Lerner in contempt.  The principal sanction under existing practice derives from a criminal statute, but this sanction requires Eric Holder’s Department of Justice to prosecute Lerner. That seems exceedingly unlikely. Thus, many assume that there will be no consequences for Lerner’s contempt and no incentive for Lerner to testify.

But the House has other options. It can seek a civil contempt ruling from a federal judge, but this option has a significant disadvantage – the ruling might not be enforced by the end of the existing Congress and therefore would require a new authorization by the House in the next Congress. While Congress passed a statute that authorized only the Senate to enforce a subpoena through a civil action (but exempting subpoenas against executive officials), the U.S. District Court for the District of Columbia has held that the House may bring such an action without statutory authority.

Another option would be for the House to act on its own against Lerner. Under traditional authority that was once employed not infrequently, but has not been used since 1935, the House could vote to imprison Lois Lerner until she testifies. The Supreme Court has approved this inherent contempt authority twice, but people wonder about its constitutionality since it has not been employed in many years and because it raises due process questions. Yet, there is certainly a reasonable argument under the original meaning that this authority is constitutional, on the ground that the Fifth Amendment Due Process Clause does not forbid actions that existed at common law and the inherent contempt authority was a traditional common law authority.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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