Hypothetical Scenario: Kellyanne Conway is subpoenaed by the House Oversight committee for Hatch Act violations. Conway appears but tells the chairman that he is a fraudulent partisan grandstander, a disgrace to Congress and is carrying out a ridiculous preposterous hearing that she feels is absolutely unpredicated on any legal basis and that she will not give credibility to the hearing by answering even a single question. But keep in mind, she honored the subpoena and showed up for the hearing.

Now, the House holds her in contempt for insulting the chairman and refusing to answer questions and applies the imprisonment penalty to her. She appeals her penalty to the courts saying that her first amendment rights are being violated as the government is penalizing her for speaking her mind and compelling her to speak against her intent.

Will this case be decided on the merit of Conway's contention - that the investigation is fraudulent (that is her reasons for not answering questions and berating the chairman) or will it only be decided on the statue that Congress has the power to hold her in contempt and the courts will not second-guess Congress' decision and accept whatever reason Congress gives them?

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    This question seems to misunderstand "the merits." The merits of a protester's first amendment case do not concern whether the protester is right. Here the merits of the case would be precisely what the question seems to assume they are not: whether "Congress has the power to hold her in contempt." That doesn't imply that the courts must accept congress's reasoning without question, however.
    – phoog
    Jul 16, 2019 at 1:21
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    Merely showing up to testify does not "honor" the subpoena. You have to actually answer the questions put to you, truthfully, unless you have some specific Constitutional right to refuse (e.g. the answer would incriminate you, executive privilege, etc). It doesn't matter whether answering is "against your intent", whatever that means. Jul 16, 2019 at 1:42
  • @phoog Thanks. Per your response what would the courts look into - the reason for holding her in contempt? Or could they go even one level deeper and look into their reasons for investigating her in the first place? Jul 16, 2019 at 1:48
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    There are some notes about the subpoena power on Wikipedia, with references to relevant cases. Jul 16, 2019 at 1:54

2 Answers 2


A similar question was considered by the Supreme Court in Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975). The Court held, citing precedent, that if the Committee's activities are within the "legitimate legislative sphere" then the courts cannot interfere with the subpoena, since the Speech and Debate clause of the Constitution forbids those members of Congress from being "questioned in any other place" about their Congressional activities. The standard set in Gravel v. United States is whether the subpoena is

"an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House."

Or, as written more succinctly in McGrain v. Daugherty,

The subject of any inquiry always must be one "on which legislation could be had."

So your hypothetical Conway could sue to claim that the subpoena is improper; but she would have to show that it does not pass the test given above. This seems difficult, in general. As long as the inquiry could be related to passing legislation or other legitimate purposes, the courts won't question whether that actually is the Committee's motivation.

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    I would have thought so too that the courts wouldn't presume to think motivation would be reviewable as long as there "could be... other legitimate purposes". But didn't Chief Justice Roberts essentially rule in the recent Department of Commerce v. New York case that motivation was, in fact, reviewable and he denied the Executive Branch the opportunity to proceed with their census question because he found the motivation suspect? If courts can review the motivations of decisions made by the Executive Branch, can't they also then review the motivations of Congressional committees? Jul 16, 2019 at 2:33
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    In the case of executive branch action, Congress has enacted the Administrative Procedures Act, which specifically empowers the courts to examine such actions and set them aside if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law". There is no such statute or Constitutional provision applying to the actions of Congress. The courts have no power to set aside a Congressional subpoena even if it is arbitrary and capricious, as long as it still relates to legislation. Jul 16, 2019 at 3:51
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    @NonPartisanObservor legislative motivation is reviewable. For a court to decide whether the motivation is related to "the legitimate legislative sphere," it must review the motivation. But in other contexts, review of motivation may go deeper, especially if there is a statute that requires an executive act to have a motivation that meets more exacting standards.
    – phoog
    Jul 16, 2019 at 15:31
  • @NateEldredge Does that mean these committees are effectively above the law?
    – curiousguy
    Oct 26, 2019 at 21:59

"Contempt of Congress" does not extend, in a legal sense, to insulting Congress as a whole, one house, a committee chair, or a member. (Congress and its committees have power to require both members and witnesses to abide by its rules of decorum, which forbid such insults, but as far as I know the remedy is merely to remove the disorderly person.)

Contempt of congress is defined by 2 USC 192, which provides that:

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.

Note that this is a Federal criminal statute like any other, and Congress does not normally "declare" a person guilty, much less "apply the imprisonment penalty". Charges would have to be brought before a federal court, and the person convicted by a jury, or by a judge if a jury trial was waived.

Congress does have the "inherent power" to hold trials for contempt itself, but this has not been done since 1934. This power was upheld by the Supreme Cout in Anderson v. Dunn 19 U.S. 204 (1821)

A conviction under 2 USC 192 for refusal to answer questions on the part of a witness under subpoena was upheld against a First Amendment challenge in Wilkinson v. United States, 365 U.S. 399 (1961) In that case, according to the Wikipedia article, a standard for testing subpoenas was declared by the US Supreme court:

As announced in Wilkinson v. United States, a Congressional committee must meet three requirements for its subpoenas to be "legally sufficient." First, the committee's investigation of the broad subject area must be authorized by its chamber; second, the investigation must pursue "a valid legislative purpose" but does not need to involve legislation and does not need to specify the ultimate intent of Congress; and third, the specific inquiries must be pertinent to the subject matter area that has been authorized for investigation.

Thus, in considering such charges, it is a proper defense that the subject matter of the hearing was not withing the power of Congress to investigate, or that the questions were not relevant to the subject. The court would consider these issues if they were raised by the defense. But the political "merits" of the investigation -- whether it is a wise use of the Congressional power, would not be considered.

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    @NonPartisanObservor: There's also a provision of the District of Columbia Code that forbids "loud, threatening or abusive language" in the Capitol, or disrupting any session of Congress. DC Code § 10–503.16. They can be arrested by the Capitol Police and prosecuted in the DC Superior Court (DC Code § 10–503.18. The punishment is a fine of up to $500 and imprisonment for up to six months. Jul 16, 2019 at 4:18
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    It seems to be mainly intended to apply to disorderly spectators, but I don't see any reason why it couldn't also apply to witnesses. You might be able to raise a First Amendment defense, but I think this might fall under the time, place and manner exceptions. Jul 16, 2019 at 4:22
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    @NateEldredge: The applicability of time, place, and manner restrictions to such a case is... unclear, at best. The witness didn't choose to be there, so it's certainly not going to fall under a "time" or "place" restriction. If they got out of their seat and made a scene, manner restrictions might be plausible, but if they just said a bunch of nasty things in a calm tone of voice, I'm skeptical it would be upheld.
    – Kevin
    Jul 16, 2019 at 15:26
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    In Congressional testimony, you still have a right against self-incrimination, so invoking 5th amendment rights against questions that would require you to either testify to law-breaking acts or perjure yourself are valid defenses against such lines of questioning. As Conway is being subpoenaed for a violation of a law she can invoke a her 5th amendment rights not to answer a question because it could provide incriminating answer. Such an invocation can not be held as evidence of guilt to any crime. Contempt only attaches then if she failed to show up.
    – hszmv
    Jul 16, 2019 at 16:02
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    @DavidSiegel: Because Congress is an inherently political body, as opposed to the fact-finding focus of the judiciary. Political speech is subject to a heightened level of protection, as it is intimately connected with the democratic process, and is arguably the whole point of even having a First Amendment.
    – Kevin
    Jul 16, 2019 at 17:07

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