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The Foley Institute Contempt of Congress?


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What does it mean to be held in Contempt of Congress?

Monday, June 10, 2019

The House of Representatives is scheduled to vote Tuesday, June 11 on H. Res. 430, a resolution authorizing the House Judiciary Committee to enforce subpoenas in federal court against Attorney General William Barr and former White House Counsel Don McGahn.  Both men, at the direction of the White House, had defied subpoenas issued as part of the Committee’s oversight investigation into whether President Trump obstructed the Mueller investigation.   An agreement reached with Barr on Monday to provide some of the requested materials, appears to have put a criminal contempt process in abeyance for the time being.

What is Congress’ oversight power and can the White House resist congressional subpoenas?

History and Function of Congressional Oversight

Congressional oversight is considered an element of the constitutional system of checks and balances, though it is not explicitly mentioned in the Constitution.  The first congressional oversight committee was formed in 1790 to ensure the finances of the young nation were handled properly.  Early use of oversight committees mostly involved investigating misuse of congressional power by its own members.  Eventually, oversight committees evolved to investigate a variety of matters, such as improving government efficiency and preventing waste, examining violations of civil rights and liberties, and informing the public about the activities of executive branch agencies.

Congressional standing committees—such as the House Judiciary Committee—may form oversight committees to investigate any matters that fall within their jurisdiction.  Special oversight committees—such as the one established to investigate Watergate—may be formed to address matters beyond the jurisdiction of any one standing committee.  As part of their duties, oversight committees review pending legislation, investigate issues that require future legislation, and review the actions of government agencies to ensure they comply with the law.

As part of their investigations, oversight committees can issue subpoenas to individuals to compel them to testify or provide Congress with information.  In 1927, the Supreme Court upheld Congress’ contempt power to enforce subpoenas in the landmark case McGrain v. Daugherty.  Violating a subpoena can lead individuals to being held in contempt of Congress and possible incarceration or fines.

Individuals who are subpoenaed by Congress can decline to testify or provide evidence by invoking their constitutional right against self-incrimination, though Congress can overcome this by offering immunity from criminal prosecution.  Officials in the executive branch can resist congressional subpoenas if the president invokes executive privilege, claiming the information sought would jeopardize national security, executive branch law enforcement activities, or violate the confidentiality that presidents require from close advisors.

Congressional oversight and the Trump Administration

Oversight committees have investigated a variety of issues involving the Trump Administration, including whether Mar-a-Lago attendees inappropriately influenced the Department of Veterans Affairs, Russian interference in the 2016 election, and family separations at the southern border.

Since Democrats took control of the House of Representatives in January 2019, its oversight committees have focused increasingly on issues directly affecting President Trump and members of his family.  These investigations have included whether the President obstructed the Mueller investigation, Trump’s personal and family finances and tax returns, whether Trump’s son-in-law and Senior Advisor Jarod Kushner was inappropriately given security clearance, and whether Trump is violating the emoluments clause of Constitution.

The White House has aggressively challenged these oversight investigations and attempted to block subpoenas issued to Barr and McGahn, and ones issued to former White House Communications Director Hope Hicks and former White House assistant Annie Donaldson.  It has also tried to block subpoenas for Trump’s financial information from the IRS, Deutsche Bank, and Trump’s accounting firm Mazars USA.

The White House resists these subpoenas by arguing that the investigations are partisan efforts to harass the president and lack a “legitimate legislative purpose.”   It also argues that the president’s current and former advisors need not invoke executive privilege over specific conversations or materials because they enjoy “blanket immunity” from being compelled to appear before Congress.

According to WSU political science professor Michael Salamone, the Supreme Court has never decided a case defining what constitutes a legitimate legislative purpose for exercising Congress’ oversight authority.   But typically, he points out, courts give the Congress broad discretion over such matters.

In a decision last month, the U.S. District Court in Washington D.C., ruled against the White House’s effort to block the subpoena to Mazars USA, identifying three areas of relevant and legitimate legislative concern that the oversight committee cited for their investigation.  Two days later, a second U.S. District Court in New York refused to block the congressional subpoena seeking financial records from Deutsche Bank on similar grounds.

The only previous court ruling on whether former presidential advisors enjoy blanket immunity was in 2007, when President Bush tried to prevent his former White House Counsel Harriet Miers from testifying before a congressional committee.  There, a U.S. district court ruled in favor of the House of Representatives.

If Congress votes to hold Barr and McGahn in contempt on Tuesday it will set the stage for another court battle regarding the question of blanket immunity over current and former presidential advisors.