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Do You Have to Testify Before Congress?What happens if you refuse.

By Daniel Engber
Posted Tuesday, March 15, 2005, at 11:57 AM ET
No pleading the Fifth

The chairman of the congressional committee investigating steroid use in baseball has warned that players who refuse to testify would likely be cited for contempt of Congress. How would a cited player be punished?

He'd face up to a year in prison and a fine of up to $1,000. When a witness in a congressional inquiry ignores a subpoena—and refuses either to testify before a committee or hand over requested documents—the committee can vote to issue a citation for contempt. If the full House (or Senate, if it's a Senate committee) also votes in favor, the citation gets passed to the office of the U.S. attorney, which is expected to bring the case before a federal judge.

The Constitution does not explicitly give Congress the right to issue subpoenas or contempt citations, but it began to do so not long after the birth of the Republic. The Supreme Court upheld the practice in 1821, reasoning that without it, Congress "would be exposed to every indignity and interruption that rudeness, caprice or even conspiracy may mediate against it." The ruling gave Congress the right to imprison uncooperative witnesses for contempt, but for no longer than the duration of the Congress that passed the citation.

Until the middle of the 19th century, Congress would enforce contempt citations itself, with the sergeants-at-arms taking guilty parties into custody. But the limitations of the 1821 court ruling led lawmakers to turn over the responsibility for prosecuting these citations to the executive branch. From 1857 on, a U.S. attorney was asked to certify contempt citations and bring them before a federal judge. The limit on the duration of imprisonment no longer applied. Problems arose in the 1920s, when Attorney General Harry Daugherty failed to prosecute corrupt officials (including his own brother) who refused to testify to Congress about the Teapot Dome scandal.

Can Congress issue subpoenas and contempt citations to anyone? Pretty much, but it's a power that's expanded over the years. By 1881, Congress had an established right to issue subpoenas and contempt citations, but only if the inquiry pertained directly to congressional legislation. After Daugherty complained that the Teapot Dome proceedings didn't meet this standard in 1927, another Supreme Court ruling expanded the power of Congress to issue contempt citations for any legislative purpose, even if that purpose was somewhat vague.

If the baseball players want to avoid testifying in front of Congress, they will have to ignore the subpoenas and wait until the contempt citations are issued. Once their case is in federal court, they can argue that the subpoenas were unwarranted. (They might try to argue that Congress has no legislative purpose, for example, or that the congressional proceeding will impede the criminal inquiry already underway). But the judicial branch has generally been very reluctant to interfere in Congressional inquiries.

Members of Congress threaten witnesses with contempt citations from time to time, but actual citations are rare, and convictions are even less common. One of the most recent citations was issued in 1982, after the director of the Environmental Protection Agency, Anne Gorsuch Burford, refused to hand over documents related to the management of the $1.6 billion Superfund program to clean up toxic waste sites. When Congress passed a citation for contempt, the U.S. attorney refused to prosecute, asking a federal court to instead rule the citation unconstitutional. The court refused, but the Reagan administration gave up the documents before Burford ended up in jail.

In the 1950s, the House Un-American Activities Committee cited a number of people for refusing to give up the names of Communist sympathizers, including Arthur Miller and Pete Seeger. Both were found guilty of contempt, but both appealed, and their convictions were overturned a year later. (The court ruled that the committee had led them to believe that their answers were not required.)

Next question?

Explainer thanks Garry Young for asking the question and Jonathan Turley of George Washington University for helping answer it.

Correction, March 17, 2005: This story originally stated that Dashiell Hammett was jailed in 1951 for contempt of Congress. In fact, he was jailed for contempt of court. He didn't testify before Congress until 1953.

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Daniel Engber is an associate editor at Slate. He can be reached at .
Photograph of Jason Giambi by Kathy Willens/AP.
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