U.S. Attorney General Merrick Garland testifies before the House Judiciary Committee on Capitol Hill on June 4, 2024 in Washington, DC. (Getty Images)
Lawmakers may refer a contempt of Congress citation for noncompliance with subpoenas for documents or testimony to the Justice Department for prosecution. In short, the Justice Department run by Garland is not going to prosecute its own attorney general.
So, Republicans are stuck.
That’s where "inherent contempt" comes in.
Inherent contempt is an authority which Congress may deploy on its own without relying on another branch of government. In other words, Congress may vote to hold someone in contempt for failing to provide information – and inherently use its own powers to discipline, arrest or hold someone for running afoul of the House or Senate.
Lawmakers of both parties have spoken off and on for years about leaning on inherent contempt to get their way. But no one has really considered it as a legitimate option for the first time in nine decades until recently.
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Rep. Anna Paulina Luna, R-Fla., says she’ll introduce a resolution of inherent contempt – ten days after the House votes on "regular" contempt for Garland. The idea is that the Justice Department won’t prosecute Garland – so Congress will take matters into its own hands.
Of course, it’s impossible to know if the House would ever command the requisite votes for an inherent contempt resolution – especially since "customary" contempt is dicey, too. But let’s explore inherent contempt for a moment and examine how it works.
Congress formerly leaned on inherent contempt in the early days of the republic. In fact, Congress voted to hold various newspaper publishers in contempt in the late 18th and early 19th centuries. In 1927, a Senate panel voted to approve a warrant for a witness who failed to comply with a subpoena. But a court ruled that the Senate overstepped its bounds in that case.
Congress last used inherent contempt in 1934. A Commerce Department official refused to comply with a Congressional subpoena for documents related to an airmail scandal. So Congress held the official in contempt.
U.S. Attorney General Merrick Garland testifies before the House Judiciary Committee in the Rayburn House Office Building on Capitol Hill on June 04, 2024 in Washington, DC. (Chip Somodevilla/Getty Images)
A senior House security official tells Fox there has been some mulling of this. But everyone is just waiting to see what unfolds.
However, two things must happen first. The House must vote to hold Garland in contempt. And the House would then vote to hold him in inherent contempt. And so far, the House hasn’t demonstrated it has the votes for "regular" contempt.
"It would be extraordinary to have the Sergeant at Arms go to (Garland’s) office. His house," I pointed out to Luna.
"We’re hoping that it doesn’t get to that," answered the Florida Republican.
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But as far as one can tell, there isn’t a plan. Inherent contempt is inherently complicated. Inherently messy. And inherently tumultuous.
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