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The US Senate Select Committee on Intelligence held a hearing today, June 6th 2017, on FISA legislation (LINK: Full hearing video recording). This hearing included testimony by the following witnesses:

Director Daniel R. Coats\ Director of National Intelligence (DNI)

Acting Director Andrew McCabe\ Director of the Federal Bureau of Investigation (FBI)

Admiral Michael S. Rogers\ Director of the National Security Agency (NSA)

Deputy Attorney General Rod J. Rosenstein\ Deputy Attorney General of the Department of Justice (DOJ)

Each witness at several points indicated that they would not or could not respond to direct questions posed by the congressional committee. Examples of this can be particularly seen in Senator Martin Heinrich's time (1:44:46 to 1:50:06) and Senator Angus King's time (1:55:30 to 2:01:55).


Selected excerpts from those two particular sections

Director McCabe: "And I think that those matters also begin to fall within the scope of issues being investigated by the special council, and wouldn't be appropriate for me to comment on those today."


Director Coats: "I do not share with the general public conversations I have with the President or many of my administrative colleagues... that I believe should not be shared."


Senator King: "Why are you not answering these questions? Is there an invocation of executive privilege by the President of the United States? Is there or not?"

Admiral Rogers: "Not that I am aware of."

Senator King: "Then why are you not answering our questions?"

Admiral Rogers: "Because I feel that it is inappropriate, Senator."

Senator King: "What you feel isn't relevant, Admiral..."


Senator King: "I am not satisfied by, 'I do not believe it's appropriate' or 'I do not feel I should answer'. I want to understand a legal basis. You swore that oath to tell us the truth, the whole truth, and nothing but the truth. And today you are refusing to do so. What is the legal basis for your refusal to testify to this committee?"

Director Coats: "I'm not sure I have a legal basis..."

Director Coats and Admiral Rogers both refer to issues regarding the setting of this discussion and possible involvement classified information as reason why they are not able to answer. But this seems like broad authority to not answer a question, without legitimate privilege.

Senator King explicitly closes his questioning period by stating, "It is my belief that you are inappropriately refusing to answer these questions."


What are the legal requirements to answer questions when testifying in this setting?

What is the legal recourse for compelling withheld responses in this setting?

What is the legal authority of the US intelligence community leaders to determine the appropriateness of the questions asked to them?

  • I'm supposing you mean, what is the legal authority to compel testimony. Otherwise, the answer to the first is simple: you must testify. – user6726 Jun 7 '17 at 17:31
  • @user6726 Would you write an answer? if the requirement is you must testify, why is there no immediate contempt issue? – PV22 Jun 7 '17 at 17:47
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Congress has always had the power to conduct an investigation and to issue subpoenas, although that power has just been assumed. It was first invoked in 1795, in the case of Robert Randall and Charles Whitney, in regards to an attempt to bribe members of Congress. This power ultimately follows from Congress's constitutional power to legislate augmented by the Necessary and Proper Clause, and (Barenblatt v. United States 360 U.S. 109) which implies powers to do things "in pursuance of its legislative concerns". It was there held that Congress's "legislative authority and that of the Subcommittee to conduct the inquiry under consideration here is unassailable". Anderson v. Dunn 19 US 204 earlier recognized the power of Congress to issue warrants and hold people to answer for charges – to conduct trials (in this case for torts against the Sergeant at Arms of the House), and notes that the Speaker is "duly authorized and required to attest and subscribe with his proper hand, all such writs, warrants, and subpoenas issued by order of the said house", which presupposed that the House has the power to give such orders. McGrain v. Daugherty 273 U.S. 135 held that "Deputies, with authority to execute warrants, may be appointed by the Sergeant-at-Arms of the Senate".

Since Anderson, the courts have also recognized the power to hold a person in contempt for not obeying an order to testify:

But what is the alternative? The argument obviously leads to the total annihilation of the power of the House of Representatives to guard itself from contempts, and leaves it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it. This result is fraught with too much absurdity not to bring into doubt the soundness of any argument from which it is derived.

There are two kinds of sanctions for not testifying: the "inherent contempt" power, and statutory power. The former is a common-law sort of power officially recognized since Anderson. Statutory power is encoded in 2 USC 192, which says

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months

This article provides a detailed analysis of the history and legal foundation of congressional comtempt power.

Whether or not in the present case there is "contempt of Congress" can't really be answered yet. Congress does not have an absolute power to compel answers, e.g. the 5th Amendment protects witnesses in some ways, and Congress cannot compel a person to testify if doing so is against the law. There is a uniform refusal by governments to refuse to comment on any on-going investigation, which is often invoked in Congressional hearings. I don't know what the legal foundation of that position is, and there doesn't seem to be any case low on point. Once someone is punished for such refusal and appeals to SCOTUS, the picture should become clearer.

  • "Whether or not in the present case there is "contempt of Congress" can't really be answered yet." Is this because the committee would have to take action first? – PV22 Jun 7 '17 at 21:21
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The 'law' that applies here is totally different to the law that would apply to an examination before a court or an executive official. It is far more political than just 'the witness refused to answer a question, therefore they commit an offence.'

The contempt, if there is one, is a contempt against the chamber (i.e. the House or the Senate), not the individual legislator or even the committee. It can only be punished by the chamber.

The issue can be illustrated with some recent examples from Australia, where parliaments have similar implicit contempt powers to the US Congress:

  • In 2012, the Victorian Legislative Council voted to compel the Government to produce a secret report from one its contractors. The Government refused. The Legislative Council never enforced its order. An individual member of the Council attempted to get a declaration from the Supreme Court saying that the order was valid (Barber v Victoria [2012] VSC 554, refusing the Government's application for summary judgment) but, of course, it was not possibly to attempt to actually enforce the order in a court. A court has no jurisdiction over the legislature. The legislature looks after itself.
  • In 2015, in a federal Senate committee hearing into tax avoidance, the Commissioner of Taxation refused to answer questions about specific taxpayers. The law says that the Commissioner cannot disclose information about specific taxpayers, but a person speaking in the Senate is not subject to the law (this is called 'parliamentary privilege'). The Senator asking the questions indicated that he was not satisfied with the Commissioner's excuse for not answering, but nothing came of it. In order to enforce the question, the Senate as a whole would have to make a decision to do so (by convention, they only do so on the advice of the Senate's privileges committee). The Senate can do as it pleases but by convention it respects what it calls 'public interest immunity', which is a general right to not answer questions where it would be, as Admiral Rogers would say, 'inappropriate.'

So, the situation is that maybe the witnesses will be held in contempt or maybe they won't, but that would be a decision for the Senate as a whole, after considering whether they buy the witness's reasons for not answering. The outcome of this process does not hinge solely on the fact that a question was asked and the witness refused to answer.

Australian parliaments are generally above the law, whereas the US Congress is subject to (at least) the US Constitution (Kilboum v Thompson (1881) 103 US 168). But the point for present purposes is that the contempt power (which is the same in the US) is exercised at the discretion of the chamber not the individual member.

For completeness, I should explain how the statutory obligation under 2 USC 192 fits in. This obligation is supplemental to the Senate's inherent power. What 2 USC 192 does is permit the Executive to prosecute the matter in a normal court, rather than requiring the Senate to run a trial. An individual Senator cannot enforce 2 USC 192: that would be a 'private prosecution', which is not permitted in United States federal matters: Leeke v Timmerman (1981) 454 US 83.

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