What is criminal contempt of Congress?

By Paul LeBlanc and Zachary B. Wolf, CNN

(CNN) — On the same day House Republicans were set to formalize an impeachment inquiry into President Joe Biden, his son Hunter defied a subpoena from Congress, raising the possibility that he could be held in contempt of Congress.

Hunter Biden has said he will testify publicly, but not behind closed doors as Republicans running the impeachment inquiry into his father demanded.

Not willing to negotiate on the venue for the testimony, House Oversight Chair James Comer and House Judiciary Chair Jim Jordan said they will start contempt proceedings against Hunter Biden for not appearing for his scheduled deposition.

“Hunter Biden today defied lawful subpoenas and we will now initiate contempt of Congress proceedings,” the pair said in a statement.

There is recent precedent for holding recalcitrant witnesses in contempt

Democrats used the process several times as they ran into uncooperative allies and former aides to former President Donald Trump.

The Department of Justice ultimately did not pursue charges against Trump aide Dan Scavino and former White House chief of staff Mark Meadows.

But federal prosecutors did take two Trump allies, Stephen Bannon and former White House trade adviser Peter Navarro to trial on the criminal contempt charges.

Bannon was found guilty in 2022, but has not yet served his sentence of four months in jail as appeals continue. Navarro was found guilty earlier this year, but is also appealing his conviction.

How does criminal contempt of Congress work?

Criminal contempt is one of three options Congress can pursue to enforce its subpoenas, along with civil and inherent contempt.

The House Oversight Committee could vote to find Hunter Biden in criminal contempt and then refer that finding to the full House for a contempt vote. If that vote succeeds, House Speaker Mike Johnson certifies the report to the United States attorney for the District of Columbia.

Under law, this certification then requires the US attorney to “bring the matter before the grand jury for its action,” but the Justice Department will also makes its own determinations for prosecuting.

Any individual who is found liable for contempt of Congress is then guilty of a crime that may result in a fine and between one and 12 months imprisonment. But this process is rarely invoked and rarely leads to jail time.

As severe as a criminal contempt referral sounds, the House’s choice to use the Justice Department may be more of a warning shot than a solution. Holding a person in criminal contempt through a prosecution takes years, and historic criminal contempt cases have been derailed by appeals and acquittals.

Civil contempt

Unlike with criminal contempt, civil contempt would see Congress ask the judicial branch to enforce a congressional subpoena.

In other words, Congress would seek a federal court’s civil judgment saying the person is legally obligated to comply with the subpoena.

During Trump’s presidency, the House tried this approach many times, but the court process moved so slowly it took months or even years for standoffs to resolve. The House did not receive Trump’s tax returns until years after Trump left office and only after the case went to the Supreme Court.

Inherent contempt

The third option Congress could use to enforce its subpoenas would be inherent contempt, which involves telling the House or Senate sergeant-at-arms to detain or imprison the person in contempt until he or she honors congressional demands.

This is an extremely rare process and hasn’t happened in modern times.

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