Whether Congress May Use Inherent Contempt to Punish Executive Branch Officials Who Withhold Subpoenaed Materials Based on a Presidential Assertion of Executive Privilege

(Slip Opinion)

Whether Congress May Use Inherent Contempt to Punish
Executive Branch Officials Who Withhold Subpoenaed
Materials Based on a Presidential Assertion of
Executive Privilege
Congress may not constitutionally use its inherent power of contempt to arrest, fine, or
otherwise punish an Executive Branch official for complying with the President’s asser-
tion of executive privilege over materials subpoenaed by a congressional committee.

December 20, 2024

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

On May 16, 2024, the President asserted executive privilege over mate-
rials subpoenaed by the Committee on the Judiciary and the Committee on
Oversight and Accountability of the U.S. House of Representatives
(“Committees”) and directed you not to produce them. You complied with
the President’s direction. A Member of the House introduced resolutions
that would have held you in contempt and ordered your arrest by the
House Sergeant at Arms or directed the Speaker of the House to impose
daily fines of $10,000 against you until you complied with the Commit-
tees’ subpoenas. See H.R. Res. 1205, 118th Cong. (2024); H.R. Res. 1344,
118th Cong. (2024). The resolution that would have provided for the
imposition of daily fines against you was brought to the House floor but
failed to pass. See 170 Cong. Rec. H4609 (daily ed. July 11, 2024).
As the House was considering these resolutions, you asked this Office
whether it would be constitutional for the House to use its inherent con-
tempt power to arrest or impose the proposed fines against you for com-
plying with the President’s direction not to disclose the materials over
which he had asserted executive privilege. In a 1984 opinion, we conclud-
ed that the separation of powers precludes Congress from doing so, see
Prosecution for Contempt of Congress of an Executive Branch Official
Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 140
n.42 (1984) (“Prosecution for Contempt ”), and we have repeatedly reaf-
firmed that conclusion in subsequent opinions. Consistent with this
longstanding view, we advised you that Congress cannot use its inherent
contempt power to arrest, imprison, or otherwise punish an Executive
Branch official for complying with the President’s assertion of executive

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48 Op. O.L.C. __ (Dec. 20, 2024)

privilege. This opinion further explains the advice we provided you when
the House was considering the contempt resolutions.

On January 12, 2023, you appointed Special Counsel Robert K. Hur to
investigate matters including the “possible unauthorized removal and
retention of classified documents or other records” discovered at the
Penn Biden Center for Diplomacy and Global Engagement and the Presi-
dent’s private residence in Wilmington, Delaware. Att’y Gen. Order
No. 5588‑2023 (Jan. 12, 2023). As part of his cooperation with the Spe-
cial Counsel’s investigation, the President sat for a voluntary interview
with the Special Counsel that lasted more than five hours. See Robert
K. Hur, Report on the Investigation into Unauthorized Removal, Reten-
tion, and Disclosure of Classified Documents Discovered at Locations
Including the Penn Biden Center and the Delaware Private Residence of
President Joseph R. Biden, Jr. 11, 210 (2024). In addition, the Special
Counsel twice interviewed the President’s ghostwriter, Mark Zwonitzer.
Id. at 342. The interviews with the President and Zwonitzer were audio-
recorded at the request of the Special Counsel.
On February 27, 2024, the Committees issued subpoenas for materials
related to the Special Counsel’s investigation, including audio recordings
of his interviews with the President and Zwonitzer. See Letter for Merrick
B. Garland, Attorney General, from James Comer, Chairman, House
Committee on Oversight and Accountability, and Jim Jordan, Chairman,
House Committee on the Judiciary at 2 (Feb. 27, 2024). The Department
made substantial efforts to accommodate the Committees’ interest in the
subpoenaed materials. For example, the Department provided Special
Counsel Hur’s report without any additional redactions and facilitated his
appearance before the House Judiciary Committee, where he testified for
more than five hours about his investigation. The Department also provid-
ed transcripts of the Special Counsel’s interviews of the President and
Zwonitzer, as well as classified and other documents that the Committees
requested. See Letter for Jim Jordan, Chairman, House Committee on the
Judiciary, and James Comer, Chairman, House Committee on Oversight
and Accountability, from Carlos Felipe Uriarte, Assistant Attorney Gen-
eral, Office of Legislative Affairs at 1–2 (Apr. 8, 2024). Yet the Commit-
tees continued to pursue additional information—specifically focusing on

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Congressional Use of Inherent Contempt to Punish Executive Branch Officials

the audio recordings of the Special Counsel’s interviews with the Presi-
dent and Zwonitzer—and scheduled votes on reports recommending that
the House find you in contempt of Congress if the audio recordings were
not disclosed. See Letter for Merrick B. Garland, Attorney General, from
James Comer, Chairman, House Committee on Oversight and Accounta-
bility, and Jim Jordan, Chairman, House Committee on the Judiciary
at 2, 4 (Apr. 15, 2024).
In light of the Committees’ threats to initiate contempt proceedings, you
requested our advice on the availability of an assertion of executive privi-
lege in these circumstances. We advised that the subpoenaed audio record-
ings fell within the scope of executive privilege, that the Committees had
failed to satisfy any of the potentially relevant standards for overcoming an
assertion of privilege, particularly given the responsive information al-
ready provided by the Department, and that the President could thus assert
executive privilege over the recordings. Assertion of Executive Privilege
Over Audio Recordings of the Special Counsel’s Interviews of the Presi-
dent and His Ghostwriter, 48 Op. O.L.C. __, at *1 (May 15, 2024); see
also Memorandum for Merrick Garland, Attorney General, from Christo-
pher Fonzone, Assistant Attorney General, Office of Legal Counsel, et al.,
Re: Executive Privilege Assertion for Audio Recordings at 1 (May 15,
2024). We also advised you that, under longstanding Executive Branch
precedent, the criminal contempt of Congress statute does not apply, and
could not constitutionally be applied, to Executive Branch officials who
do not disclose materials to Congress based on a presidential assertion of
privilege. Id. at 4 (citing Prosecution for Contempt, 8 Op. O.L.C. at 129).
On May 16, 2024, prior to the Committees’ votes on the reports rec-
ommending that the House find you in contempt, the President asserted
executive privilege over the audio recordings and directed you not to
produce them to the Committees. We advised you that, “[a]s a result of
the President’s directive, you may not produce the recordings to the
Committees consistent with the responsibilities of your office.” Memo-
randum for Merrick Garland, Attorney General, from Christopher
Fonzone, Assistant Attorney General, Office of Legal Counsel, et al., Re:
The President’s Executive Privilege Assertion and the Criminal Contempt
of Congress Statute at 1 (May 16, 2024). You complied with the Presi-
dent’s direction. However, notwithstanding the President’s privilege
assertion, and despite the Department’s efforts to accommodate the

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48 Op. O.L.C. __ (Dec. 20, 2024)

Committees’ requests, the Committees adopted reports recommending
that the House cite you for contempt. The House then adopted contempt
resolutions on June 12, 2024, and directed the Speaker of the House to
certify the reports on the resolutions to the United States Attorney for the
District of Columbia for prosecution under the contempt of Congress
statute, 2 U.S.C. §§ 192, 194. See H.R. Res. 1292, 118th Cong. (2024)
(enacted); H.R. Res. 1293, 118th Cong. (2024) (enacted): see also H.R.
Res. 1287, 118th Cong. (2024) (enacted) (providing that H.R. Res. 1293
is adopted upon the adoption of H.R. Res. 1292).
Consistent with our advice that the criminal contempt of Congress stat-
ute could not constitutionally be applied in these circumstances, the
Department subsequently informed House Speaker Mike Johnson that
your conduct in response to the subpoenas issued by the Committees did
not constitute a crime and that the Department would not bring the matter
before a grand jury or take any other action to prosecute the Attorney
General. See Letter for Mike Johnson, Speaker, U.S. House of Repre-
sentatives, from Carlos Felipe Uriarte, Assistant Attorney General, Office
of Legislative Affairs at 3 (June 14, 2024).
Soon thereafter, a Member of Congress expressed an intent to force a
vote on a resolution that would have held you in contempt without refer-
ence to the contempt statute and, as noted above, would have directed the
House Sergeant at Arms to arrest you and bring you before the House for
purported failure to comply with the Committees’ subpoenas. See
H.R. Res. 1205, 118th Cong. (2024). This Office advised you that, under
well-established Executive Branch precedents, it would be unconstitution-
al for the House to use its inherent contempt power to arrest, imprison, or
otherwise punish you for not disclosing subpoenaed materials that the
President had directed you not to disclose based on his assertion of execu-
tive privilege. Memorandum for Merrick Garland, Attorney General,
from Christopher Fonzone, Assistant Attorney General, Office of Legal
Counsel, Re: Whether Congress May Use Its Inherent Contempt Authority
to Arrest Executive Branch Officials Who Withhold Subpoenaed Materials
Based on an Assertion of Executive Privilege by the President at 4–5
(June 24, 2024). On July 9, 2024, another resolution was introduced that,
instead of ordering your arrest, would have directed the Speaker of the
House to impose fines of $10,000 per day against you until you complied
with the relevant subpoena. See H.R. Res. 1344, 118th Cong. (2024).

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Congressional Use of Inherent Contempt to Punish Executive Branch Officials

Again, this Office advised you that it would be unconstitutional for the
House to use its inherent contempt power in this manner. Memorandum
for Merrick Garland, Attorney General, from Christopher Fonzone, Assis-
tant Attorney General, Office of Legal Counsel, Re: Whether Congress
May Use Its Inherent Contempt Authority to Fine Executive Branch Offi-
cials Who Withhold Subpoenaed Materials Based on a Presidential Asser-
tion of Executive Privilege at 2 (July 10, 2024).
On July 11, 2024, the full House took up but failed to pass the resolu-
tion that would have provided for the imposition of daily fines against you
for purportedly failing to comply with the Committees’ subpoenas. See
170 Cong. Rec. H4609 (daily ed. July 11, 2024).

II.

The Constitution does not grant Congress explicit authority to hold
nonmembers in contempt, but Congress has nonetheless maintained, and
the Supreme Court has affirmed, that Congress has implicit constitutional
authority to arrest nonmembers for acts that “obstruct the performance of
the duties of the Legislature.” Jurney v. MacCracken, 294 U.S. 125, 147–
48 (1935); see also Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821).
This power stems, according to the Court, from Congress’s inherent
authority to preserve its constitutionally derived legislative power. See
Marshall v. Gordon, 243 U.S. 521, 541 (1917) (“[I]n virtue of the grant of
legislative authority there [is] a power implied to deal with contempt in so
far as that authority [is] necessary to preserve and carry out the legislative
authority given.”). It also finds its roots in English and early American
history. In the sixteenth century, each house of Parliament began to pun-
ish “interferences with the House’s ability to do its own business.” Josh
Chafetz, Congress’s Constitution 153, 155 (2017) (“Congress’s Constitu-
tion”). Likewise, in the American colonies, “[t]he colonial assemblies,
modeled after Parliament, also exercised the power to cite and to prose-
cute for contempt” for similar reasons. Carl Beck, Contempt of Congress:
A Study of the Prosecutions Initiated by the Committee on Un-American
Activities, 1945–1957 at 2 (1959) (“Contempt of Congress: A Study”).
The Supreme Court has made clear, however, that there are limits to
Congress’s inherent contempt power. The power “rests only upon the

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48 Op. O.L.C. __ (Dec. 20, 2024)

right of self-preservation; that is, the right to prevent acts which, in and of
themselves, inherently obstruct or prevent the discharge of legislative
duty.” Marshall, 243 U.S. at 542; see also MacCracken, 294 U.S. at 147–
48 (“[T]he scope of the power is narrow. No act is so punishable unless it
is of a nature to obstruct the performance of the duties of the legisla-
ture.”). Thus, in Kilbourn v. Thompson, 103 U.S. 168 (1880), for example,
the Court held that the House had “exceeded the limit of its own authori-
ty” when it arrested the plaintiff for refusing to comply with a subpoena
that a committee issued as part of an investigation into private affairs that,
according to the Court, “was judicial in its character, and could only be
properly and successfully made by a court of justice.” Id. at 192–93. In
any event, “even where Congress properly exercises its authority to deal
with a contempt, the punishment must cease upon the adjournment of
Congress.” Legal Effectiveness of Congressional Subpoenas Issued After
an Adjournment Sine Die of Congress, 20 Op. O.L.C. 372, 374 (1996)
(citing Anderson, 19 U.S. at 231, and Marshall, 243 U.S. at 542).

The House first used its power of inherent contempt to arrest a non-
member in 1795, see 5 Annals of Cong. 166–70 (1795), 1 and both con-
gressional chambers prosecuted nonmembers for contempt for much of
the Nation’s early history, see Congress’s Constitution at 172. Between
1795 and 1857, for instance, the House and Senate ordered the arrest of
nine nonmembers pursuant to the chambers’ inherent contempt powers.
See Contempt of Congress: A Study at 191–216 (synopsis of contempt
citations from 1787 to 1943).

1 Although the majority of early Members of Congress accepted that the Constitution

authorized the chambers to arrest and punish nonmembers, some Members questioned
whether such authority existed. Among the latter group was James Madison, who was one
of seventeen House Members to vote against the first resolution finding a nonmember
guilty of contempt. See 37 Am. State Papers 132 (1795). Madison wrote in a letter to
Thomas Jefferson that “it will be difficult, I believe, to deduce the privilege from the
Constitution, or to limit it in practice.” Letter for Thomas Jefferson from James Madison
(Jan. 10, 1796), https://founders.archives.gov/documents/Madison/01-16-02-0103. He
also feared that an inherent contempt power could be abused: “What an engine may such a
privilege become, in the hands of a body once corrupted, for protecting its corruptions
against public animadversion, under the pretext of maintaining its dignity and preserving
the necessary confidence of the public!” Id.

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Congressional Use of Inherent Contempt to Punish Executive Branch Officials

Over time, however, Congress ceased using its power of inherent con-
tempt to the point that more than 60 years ago the Supreme Court referred
to the power as “practically abandoned.” Watkins v. United States, 354
U.S. 178, 206 (1957). Multiple reasons likely contributed to this change in
congressional practice, including the burdens of arresting, trying, and
punishing individuals for failure to comply with congressional subpoenas
and the fact that imprisonment for inherent contempt cannot extend be-
yond the end of the current session of Congress, limiting its effectiveness
as a tool for compelling compliance. See Todd Garvey, Cong. Research
Serv., RL34097, Congress’s Contempt Power and the Enforcement of
Congressional Subpoenas: Law, History, Practice, and Procedure at 12–
13 (updated May 12, 2017) (discussing the change in practice and reasons
for it); see also Congress’s Constitution at 175 (discussing the burdens of
undertaking inherent contempt proceedings); Watkins, 354 U.S. at 207
n.45 (highlighting the limits of inherent contempt since imprisonment by
either chamber “is valid only so long as the [chamber] remains in ses-
sion”). Whatever the precise causes, the results are clear: Congress has not
authorized inherent contempt since 1934. See Contempt of Congress: A
Study at 94 n.6, 212–13 (listing the 1934 arrests of William P. MacCracken
and his associate, L.H. Brittin, as the most recent instances of Congress’s
use of its inherent contempt power). Since then, Congress has instead
referred contempt citations to U.S. Attorneys under the criminal contempt
of Congress statute, 2 U.S.C. §§ 192, 194, which was enacted in 1857 at
least in part to address some of inherent contempt’s deficiencies, see
Prosecution for Contempt, 8 Op. O.L.C. at 129–32 (recounting the crimi-
nal contempt statute’s legislative history); Watkins, 354 U.S. at 207 n.45.
Moreover, even during the 140 years in which Congress was employing
its inherent contempt power, a House of Congress never attempted to use
the authority against an Executive Branch official for refusing to produce
information based on a constitutional prerogative of the Executive. In-
deed, as far as we are aware, a House of Congress only twice even at-
tempted to use the authority against an Executive Branch official, and
neither of those cases involved a presidential assertion of executive privi-
lege or other separation of powers-based defense to compliance. See Josh
Chafetz, Executive Branch Contempt of Congress, 76 U. Chi. L. Rev.
1083, 1132–39 (2009).

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48 Op. O.L.C. __ (Dec. 20, 2024)

In particular, the first attempt occurred in 1879, when the House or-
dered the Sergeant at Arms to arrest the U.S. Minister to China, George
Seward, for contempt related to his refusal to produce certain accounting
books to the House Committee on Expenditures in the State Department,
which was investigating whether he should be impeached for misconduct
he allegedly committed while holding the office of consul-general in
Shanghai. 3 Asher C. Hinds, Hinds’ Precedents of the House of Repre-
sentatives of the United States § 1699, at 55–59 (1907); see also 8 Cong.
Rec. 2138 (1879) (statement of Speaker Randall). Seward appeared before
the House in the custody of the Sergeant at Arms, where he was informed
that he was “under arrest on an alleged breach of the privileges of the
House in refusing to answer certain questions propounded to you by a
committee.” 8 Cong. Rec. at 2138. Seward presented a written statement
asserting that because the Committee subpoenaed the materials as part of
an impeachment investigation, he had a Fifth Amendment right not to
produce them. Id. at 2138–41. The House referred Seward’s statement to
the Judiciary Committee and agreed to “allow[] [Seward] to depart on his
own recognizance.” Id. at 2143–44. The Committee on Expenditures in
the State Department reported articles of impeachment against Seward,
but the full House did not vote on them before the legislative session
ended. 3 Hinds’ Precedents § 1699, at 59. On the last day of the session,
the Judiciary Committee reported that Seward should not be compelled to
incriminate himself during the pendency of impeachment proceedings. Id.
§ 1700, at 59–60. Seward was never found guilty of contempt, and he did
not challenge his arrest. See id.; Congress’s Constitution at 177.
The second attempt occurred in 1916. Then, the House found that
H. Snowden Marshall, the U.S. Attorney for the Southern District of New
York, was guilty of contempt of Congress for sending and simultaneously
releasing to the press an “unparliamentary and manifestly ill-tempered”
letter to a House subcommittee that was investigating him for misconduct.
Marshall, 243 U.S. at 531. The House then issued a formal warrant for
Marshall’s arrest, the Sergeant at Arms executed that warrant in New
York, and Marshall filed a petition for a writ of habeas corpus. Id. at 532.
The district court denied the petition, United States ex rel. Marshall v.
Gordon, 235 F. 422, 433 (S.D.N.Y. 1916), but the Supreme Court re-
versed on the theory that the House had exceeded the scope of its authori-
ty in holding Marshall in inherent contempt for conduct that did not

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Congressional Use of Inherent Contempt to Punish Executive Branch Officials

obstruct the House’s legislative duties, Marshall, 243 U.S. at 546. As the
Court explained, in the absence of “any obstruction to the performance of
legislative duty resulting from the letter,” the House could not punish
Marshall for the mere “effect and operation which the . . . letter would
produce upon the public mind” or “the sense of indignation” felt by
Members of Congress. Id. at 545–46 (“[T]he contempt relied upon was
not intrinsic to the right of the House to preserve the means of discharging
its legislative duties.”).
Thus, we are aware of only two instances, both occurring more than a
century ago, in which a House of Congress even attempted to arrest an
Executive Branch official. And neither of these examples involved a
failure to produce materials over which the President had asserted execu-
tive privilege. Nor are we aware of Congress ever using its inherent
contempt power to impose a monetary fine as punishment for contempt.
See Todd Garvey, Cong. Research Serv., R45653, Congressional Subpoe-
nas: Enforcing Executive Branch Compliance at 34 (Mar. 27, 2019)
(“Neither the House nor the Senate has ever imposed a monetary penalty
through the exercise of inherent contempt[.]”).

III.

As we noted at the outset, this Office recognized in 1984 that it would
be unconstitutional for Congress to use its inherent contempt power to
arrest, imprison, or otherwise punish an Executive Branch official who
refuses to provide subpoenaed materials or testimony based on the Presi-
dent’s assertion of executive privilege. We have repeatedly reaffirmed
this view. 2 We do so again here, concluding that the House may not

2 See, e.g., Response to Congressional Requests for Information Regarding Decisions

Made Under the Independent Counsel Act, 10 Op. O.L.C. 68, 86 (1986) (explaining that
our reasoning that the criminal contempt of Congress statute cannot constitutionally be
applied against an Executive Branch official who withholds subpoenaed information
based on a presidential assertion of privilege “applies to Congress’s inherent contempt
powers as well” (quoting Prosecution for Contempt, 8 Op. O.L.C. at 140 n.42)); Memo-
randum for Janet Reno, Attorney General, from Walter Dellinger, Assistant Attorney
General, Office of Legal Counsel, Re: Congressional Demands to Interview Prosecutors
and Review Deliberative Documents in Closed Cases at 8 (Nov. 23, 1993) (same);
Testimonial Immunity Before Congress of the Former Counsel to the President, 43 Op.
O.L.C. __, at *20 (May 20, 2019) (concluding that Congress cannot “lawfully exercise
any inherent contempt authority” against a senior presidential aide who is entitled to

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48 Op. O.L.C. __ (Dec. 20, 2024)

constitutionally use its inherent power of contempt to arrest or direct that
daily fines of $10,000 be imposed against you for complying with the
President’s assertion of executive privilege over the audio recordings of
Special Counsel Hur’s interviews with the President and Zwonitzer.

The 1984 opinion that first articulated the basis for concluding that
Congress may not use its inherent contempt power in this manner princi-
pally addressed whether the criminal contempt of Congress statute could
apply in the face of an executive privilege assertion. In that opinion, we
concluded that the criminal contempt statute “was not intended to apply
and could not constitutionally be applied to an Executive Branch official
who asserts the President’s claim of executive privilege.” Prosecution for
Contempt, 8 Op. O.L.C. at 102. As we explained, the President has the
authority, “rooted inextricably in the separation of powers under the
Constitution,” to preserve the confidentiality of certain Executive Branch
information by asserting executive privilege. Id.; see also United States v.
Nixon, 418 U.S. 683, 708 (1974). The application of the criminal con-
tempt of Congress statute to an official who abides by the President’s
claim of executive privilege would “immeasurably burden the President’s
ability to assert the privilege and to carry out his constitutional functions.”
Prosecution for Contempt, 8 Op. O.L.C. at 136. Specifically, the possibil-
ity of criminal contempt would put Executive Branch officials “to the risk
and burden of a criminal trial in order to vindicate the President’s asser-
tion of his constitutional privilege,” and the President would thus be faced
with the “untenable position of having to place a subordinate at the risk”
of prosecution in order to carry out his constitutional functions. Id. If
Congress “could use the power of criminal contempt to coerce the Presi-
dent either not to assert or to abandon his right to assert executive privi-

absolute testimonial immunity when the President has directed the aide not to appear
before a congressional committee (citing Prosecution for Contempt, 8 Op. O.L.C. at 136));
Attempted Exclusion of Agency Counsel from Congressional Depositions of Agency
Employees, 43 Op. O.L.C. __, at *2, *13–14 (May 23, 2019) (concluding that, when a
congressional committee issues a subpoena for testimony that may include information
protected by executive privilege, but committee rules prohibit agency counsel from accom-
panying the agency witness, the subpoena is “legally invalid” and cannot be enforced “by
civil or criminal means or through any inherent contempt power of Congress”).

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Congressional Use of Inherent Contempt to Punish Executive Branch Officials

lege,” we observed, the privilege would be effectively “nullified.” Id.
at 138.
Our 1984 opinion further recognized that this same reasoning would
apply if Congress attempted to utilize its inherent contempt powers
against an Executive Branch official for complying with the President’s
assertion of executive privilege. Id. at 140 n.42. Like a prosecution under
the criminal contempt statute, Congress’s exercise of its inherent con-
tempt power creates a risk of imprisonment or other potential punishment
for Executive Branch officials in these circumstances. And, just as with
criminal contempt, if Congress could use inherent contempt to arrest,
imprison, or otherwise punish an Executive Branch official for complying
with the President’s assertion of executive privilege, that official would
be presented with the untenable choice of risking congressional punish-
ment or defying the President’s directive. See id. at 136. Therefore, as in
the context of criminal contempt, Congress’s use of inherent contempt in
this manner would drain the President’s exercise of privilege of “any
practical substance” and intolerably burden the exercise of the President’s
constitutional functions. Id. at 140; see also Comm. on the Judiciary of the
U.S. House of Representatives v. McGahn, 968 F.3d 755, 776 (D.C. Cir.
2020) (en banc) (“[T]he ‘contempt of Congress statute does not require
and could not constitutionally require a prosecution’ of an Executive
Branch official who defies a congressional subpoena on the basis of
Executive privilege . . . [and] detaining [a former Executive Branch offi-
cial] pursuant to the House’s inherent contempt authority[] is similarly
impracticable.” (quoting Prosecution for Contempt, 8 Op. O.L.C. at 142));
Comm. on the Judiciary, U.S. House of Representatives v. Miers, 558
F. Supp. 2d 53, 92 (D.D.C. 2008) (“[T]here are strong reasons to doubt
the viability of Congress’s inherent contempt authority vis-a-vis senior
executive officials.” (citing Prosecution for Contempt, 8 Op. O.L.C. at
140 n.42, and Response to Congressional Requests for Information Re-
garding Decisions Made Under the Independent Counsel Act, 10 Op.
O.L.C. 68, 83 (1986))).
The history recounted above further supports the view that Congress
may not constitutionally use its inherent contempt power to arrest, impris-
on, or otherwise punish an Executive Branch official for carrying out a
presidential assertion of executive privilege. The Supreme Court has made
clear that “longstanding practice is a consideration of great weight in

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48 Op. O.L.C. __ (Dec. 20, 2024)

cases concerning the allocation of power between the two elected branch-
es of Government,” including—and perhaps especially—in the areas of
congressional oversight and executive privilege. Trump v. Mazars USA,
LLP, 591 U.S. 848, 862 (2020) (cleaned up); see also Zivotofsky v. Kerry,
576 U.S. 1, 23 (2015) (placing “significant weight upon historical prac-
tice” in analyzing the balance of powers between the branches (quoting
NLRB v. Noel Canning, 573 U.S. 513, 524 (2014))). Disputes between the
Executive Branch and Congress over the latter’s access to information in
the possession of the former date back to the Founding—indeed, there
have been numerous “highly visible battles over the subject of executive
privilege” throughout our history, including during the 140 years when
Congress was regularly holding nonmembers in inherent contempt. Pros-
ecution for Contempt, 8 Op. O.L.C. at 131. Yet Congress has only twice
even attempted to use its inherent contempt power against an Executive
Branch official, and never has it done so to punish an official for failing to
produce materials over which the President has asserted executive privi-
lege. See supra Part II.B. This absence of relevant practice further sug-
gests that Congress may not use inherent contempt to place an unconstitu-
tional burden on the President’s ability to preserve the confidentiality of
privileged Executive Branch information.

We readily conclude that our longstanding precedent applies to the ex-
ercises of Congress’s inherent contempt authority that H.R. Res. 1205 and
H.R. Res. 1344 envisioned. The President asserted executive privilege
over the audio recordings subpoenaed by the Committees. The President
further directed you not to produce those recordings to the Committees.
You complied with that direction. And the inherent contempt resolutions
in question purported to either order the House Sergeant at Arms to arrest
you (H.R. Res. 1205) or direct the Speaker of the House to impose daily
fines of $10,000 against you (H.R. Res. 1344) until you complied with the
Committees’ subpoenas. There is thus little question that, by passing H.R.
Res. 1205 or H.R. Res. 1344, the House would have sought to arrest,
imprison, or otherwise punish you for complying with the President’s

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Congressional Use of Inherent Contempt to Punish Executive Branch Officials

assertion of executive privilege, which our precedents make clear Con-
gress may not constitutionally do. 3
To be sure, Congress may disagree with the President’s privilege asser-
tion—it would not be the first time Congress objected to the Executive
Branch’s withholding of information on executive privilege grounds. And
just as it has on those prior occasions, Congress may continue to use the
tools at its disposal to press for the disclosure of the audio recordings
through “the ‘hurly-burly, the give-and-take of the political process be-
tween the legislative and the executive.’” Mazars, 591 U.S. at 859 (quot-
ing Executive Privilege—Secrecy in Government: Hearings on S. 2170, S.
2378, and S. 2420 Before the Subcomm. on Intergovernmental Relations
of the S. Comm. on Gov’t Operations, 94th Cong. 87 (1975) (statement of
Antonin Scalia, Assistant Attorney General, Office of Legal Counsel)).
Indeed, both Congress and the Executive Branch have an obligation to
heed “an implicit constitutional mandate to seek optimal accommodation
through a realistic evaluation of the needs of the conflicting branches in
the particular fact situation.” United States v. Am. Tel. & Tel. Co., 567
F.2d 121, 127 (D.C. Cir. 1977). But what Congress cannot do is arrest,
imprison, or impose burdensome financial sanctions on, an official for
carrying out the President’s direction not to disclose information over
which the President asserted executive privilege.

IV.

For the foregoing reasons, we concluded that the House may not consti-
tutionally use its inherent power of contempt to arrest or direct that daily

3 When we advised you on this issue earlier this year, we focused only on the specific

question of whether the separation of powers precludes Congress from using its inherent
contempt power to arrest, imprison, or otherwise punish an Executive Branch official for
complying with the President’s direction not to disclose materials over which the Presi-
dent asserted executive privilege. We note, however, that H.R. Res. 1205 and H.R. Res.
1344 may suffer from additional infirmities. For example, Congress has never, in any
context, used its inherent contempt authority to impose fines—a fact that, standing alone,
provides reason to question whether Congress has the authority to do so. Moreover, we
have also observed that subjecting an Executive Branch official to imprisonment or
punishment for “obeying an express Presidential order” to withhold materials over which
the President asserted executive privilege could, in addition to violating the separation of
powers, raise “a serious due process problem.” Prosecution for Contempt, 8 Op. O.L.C. at
134 n.34.

13
48 Op. O.L.C. __ (Dec. 20, 2024)

fines of $10,000 be imposed against you for complying with the Presi-
dent’s assertion of executive privilege over the audio recordings of Spe-
cial Counsel Hur’s interviews with the President and Zwonitzer.

CHRISTOPHER C. FONZONE
Assistant Attorney General
Office of Legal Counsel

Whether Congress May Use Inherent Contempt to Punish Executive Branch Officials Who Withhold Subpoenaed Materials Based on a Presidential Assertion of Executive Privilege

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