WASHINGTON – A small band of Republicans are pushing this week for the House to hold Attorney General Merrick Garland in “inherent contempt” of Congress, a rarely-used move that if successful could lead to a historic showdown where the people who write the country’s laws try to arrest and incarcerate its top law enforcement official.
It’s an archaic procedure that hasn’t been tried by Congress for nearly a century. The votes aren’t there for it this time around, either. And even if there was support for the move, the standoff would be destined for the federal courts given the dispute is between two equally powerful branches of the U.S. government.
Behind the effort is Rep. Anna Paulina Luna, R-Fla., a freshman lawmaker who is pushing the resolution to hold Garland in “inherent contempt” as retaliation for refusing to provide the audio recordings of President Joe Biden’s interview with special counsel Robert Hur. Luna plans to force a vote on her resolution on Friday morning, though opposition from lawmakers on both sides of the aisle means it is not expected to go anywhere.
Ahead of that showdown, many lawmakers told USA TODAY that “inherent contempt” is a concept that they didn’t understand and also something that they weren’t in agreement on what it even means.
“I have not been following it,” said Rep. Ryan Zinke, a Republican from Montana who added that he does not plan to “spend a lot of time” researching the procedure.
Rep. Cliff Bentz, R-Ore., acknowledged that he read a little into the obscure maneuver, but didn’t fully research it yet. “Wouldn’t surprise me if everybody’s doing the same thing,” he said.
“We’re still digging through it but I could talk to you a little more about it later,” added Rep. Nick Langworthy, R-N.Y.
House Republicans held Garland in “criminal contempt” earlier this month, a different procedure that referred the matter to the U.S. attorney for the District of Columbia to prosecute Garland. But the Department of Justice declined to do so. Instead, House Republicans are taking their fight to court to obtain the audio.
At a press conference on Wednesday, Luna said a court battle will take far too long and the House could instead take matters into its own hands. The idea behind “inherent contempt,” she said, is that the House could sidestep the judicial branch entirely.
What is inherent contempt?
If the resolution did pass, the House Sergeant at Arms – the chief law enforcement officer that maintains order in the chamber – would then be able to arrest Garland and bring him before lawmakers.
For their part, the Supreme Court in 1821 ruled Congress – while not outlined in the Constitution – technically does have the power to punish individuals held in contempt, arguing it is necessary for the legislative body to function. The high court has repeatedly upheld that ruling since. Democrats also floated the idea in 2019 to enforce subpoenas against Trump administration officials, including then-Attorney General William Barr, but didn’t follow through. Inherent contempt could also include fines instead of arrest and imprisonment, which some Democrats had suggested.
Luna’s resolution though, calls for Garland’s arrest.
“I understand this sounds extreme. It sounds extreme to put the AG in handcuffs and drag him in here,” Rep. Dan Crenshaw, R-Texas, a supporter of Luna’s resolution, said at the press conference.
Regardless though, holding Garland in “inherent contempt” presents a number of logistical problems. Garland, as the attorney general, is the top law enforcement officer of the nation who has his own security detail protecting him. It’s unclear how exactly the Sergeant at Arms and Capitol Police would go about taking Garland into custody.
Rep. Kelly Armstrong, R-N.D., expressed doubts that the Capitol Police could simply march over to Garland and put him in handcuffs: “I don’t think the Sergeant at Arms is going over to the DOJ to arrest the attorney general.”
Don Ritchie, a former historian of the Senate, told USA TODAY he assumes the Sergeant at Arms would at least first give Garland the courtesy of a subpoena to appear before the House before jumping straight to arresting him.
After Garland would be theoretically arrested, the attorney general would then be “brought before the bar of the House by the Sergeant at Arms, tried by the body,” according to a letter Luna sent to her colleagues urging them to support her resolution. Whatever that means is unclear.
“There’s some interesting dynamics at play here that we’re trying to navigate,” explained Rep. Kat Cammack, R-Fla.
The last time ‘inherent contempt’ happened: 1934
The last time Congress invoked the power of “inherent contempt” was in 1934 when the Senate Sergeant at Arms arrested attorney William MacCracken for not testifying over an air mail scandal.
In MacCracken’s case, he was held in custody in the lavish Willard Hotel. He was later sentenced to 10 days in prison but did not end up providing the information the Senate wanted.
As for Garland, any move by the House to arrest the attorney general for “inherent contempt” raises logistical questions about where he would be held. There aren’t any holding cells in the sprawling Capitol complex and it’s unclear how a room there could be fashioned into something akin to a prison cell.
People have been held in custody in the Capitol before. In two instances in the 1800s, Senators ordered journalists to be confined for not disclosing their sources.
In the first instance, John Nugent, a reporter for the New York Herald, was imprisoned in a committee room for not disclosing his sources in 1848. In the second, Zebulon White and Hiram Ramsdell of the New York Tribune, were also confined in a committee room in 1871 if they didn’t reveal the identity of a source. All three journalists were later released after senators realized the fruitlessness of their efforts and their sources were never revealed.
Garland could technically be detained in a Washington D.C. jail, but it’s unclear if the city would comply given House Republicans’ frosty nature with city officials over local crime.
Armstrong didn’t dispute that there are certainly rooms in the Capitol building to detain somebody, but the question is whether “we have a functioning jail.”
“If you detain somebody over any period of time, you actually have to deal with food, laundry and linen. I mean what, are we gonna UberEats into the basement?” Armstrong said.
Rep. Darrell Issa, R-Calif., conceded that almost none of the procedures surrounding “inherent contempt” seems feasible and said it was more of a way to send a message to the White House that the House is objecting to the “President’s unlawful and unconstitutional activities.”
Issa also couldn’t think of places in the Capitol to detain Garland, but did muse that the crypt in the Capitol’s basement – originally intended to be George Washington’s resting place – could be suitable: “We’d have to rebuild that, move a few things around.”
