Members of the House select committee investigating the January 6 attack on the US Capitol have floated the idea of seeking a referral for criminal contempt as the next step for anyone who defies a subpoena from the panel.
But what does that mean?
Criminal contempt is one of the three options the congressional panel can pursue to enforce its subpoenas, along with civil and inherent contempt. While lawmakers have said publicly that the committee is prepared to pursue criminal charges for noncompliant witnesses, members are now making it clear they are ready to move quickly if they don’t get the level of cooperation they are looking for.
“I think we are completely of one mind that if people refuse to respond to questions, refuse to produce documents without justification, that we will hold them in criminal contempt and refer them to the Justice Department,” Rep. Adam Schiff, a California Democrat and committee member, told CNN on Tuesday.
Here’s what criminal contempt is and how it compares with civil and inherent contempt:
To pursue criminal contempt charges, Congress would vote on criminal contempt, then make a referral to the executive branch — headed by the president — to try to get the person criminally prosecuted.
A jail sentence of a month or more is possible if a witness won’t comply, under the law.
It’s unclear how quickly this route would move, and how the Biden Justice Department would respond to a contempt referral from the Democrats in the House. The process would leave it up to Attorney General Merrick Garland to decide on involving the Justice Department in pursuing charges, putting the department in the middle of what many Republicans view as a partisan effort.
But Rep. Liz Cheney of Wyoming, one of two Republicans on the panel, told CNN that “the committee is completely in solidarity” on the decision to move quickly on pursuing criminal contempt charges for those who evade subpoena deadlines.
“People will have the opportunity to cooperate. They will have the opportunity to come in and work with us as they should,” Cheney said. “If they fail to do so, then we’ll enforce our subpoenas.”
Unlike with criminal contempt, civil contempt would see Congress ask the judicial branch to enforce a congressional subpoena.
In other words, Congress would seek a federal court’s civil judgment saying the person is legally obligated to comply with the subpoena.
During Donald Trump’s presidency, the House tried this approach many times, but the court process moved so slowly it took months or even years for standoffs to resolve. Some, like a House subpoena for Trump’s IRS returns, still linger before a trial judge.
The third option the panel could use to enforce its subpoenas would be inherent contempt, which involves telling the House or Senate sergeant-at-arms to detain or imprison the person in contempt until he or she honors congressional demands.
This is an extremely rare process and hasn’t happened in modern times.
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