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To: STARWISE
Any constitutional legal eagles here? Wondering what the legal dynamic is for Greer and the healthcare providers who were subpoened and told not to remove her feeding tube and then did. Would their being in contempt of Congress be truly a weighty matter and truly punishable?

Usual standard disclaimer: I am not by any means a legal eagle, not even a beagle. I am not a lawyer, and I am not giving anyone legal advice. I am certain that all lawyers out there will be amused by and/or contemptuous of anything I say about our legal system.

So, that said, I went out and looked at the Wikipedia and did some googling. My position is still that Judge Greer is in for a real ride.

First, here is the criminal contempt of Congress statute (there's also a civil version), 2 USC 192:

§ 192. Refusal of witness to testify or produce papers

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.

The google search was quite interesting; Jay Cooke, of all people, it turns out (appropriately enough, if you think about it ;-) was involved in a case of contempt of Congress.

But I digress. The most relevant case appears to that of Postmaster MacCracken; here's a section from Jurney v MacCracken:

First. The main contention of MacCracken is that the so-called power to punish for contempt may never be exerted, in the case of a private citizen, solely qua punishment. The argument is that the power may by used by the legislative body merely as a means of removing an existing obstruction to the performance of its duties; that the power to punish ceases as soon as the obstruction has been removed, or its removal has become impossible; and hence that there is no power to punish a witness who, having been requested to produce papers, destroys them after service of the supoena. The contention rests upon a misconception of the limitations upon the power of the Houses of Congress to punish for contempt. It is true that the scope of the power is narrow. No act is so punish- [294 U.S. 125, 148] able unless it is of a nature to obstruct the performance of the duties of the Legislature. There may be lack of power, because, as in Kilbourn v. Thompson, 103 U.S. 168 , there was no legislative duty to be performed, or because, as in Marshall v. Gordon, 243 U.S. 521 , 37 S.Ct. 448, L.R.A. 1917F, 279, Ann. Cas. 1918B, 371, the act complained of is deemed not to be of a character to obstruct the legislative process. But, where the offending act was of a nature to obstruct the legislative process, the fact that the obstruction has since been removed, or that its removal has become impossible, is without legal significance.

The power to punish a private citizen for a past and completed act was exerted by Congress as early as 1795;4 and since then it has been exercised on several occasions. 5 It was asserted, before the Revolution, by the colonial [294 U.S. 125, 149] assemblies, in imitation of the British House of Commons; and afterwards by the Continental Congress and by state legislative bodies. 6 In Anderson v. Dunn, 6 Wheat. 204, decided in 1821, it was held that the House had power to punish a private citizen for an attempt to bribe a member. No case has been found in which an exertion of the power to punish for contempt has been successfully challenged on the ground that, before punishment, the offending act had been consummated or that the obstruction suffered was irremediable. The statements in the opinion in Marshall v. Gordon, supra, upon which MacCracken relies, must be read in the light of the particular facts. It was there recognized that the only jurisdictional test to be applied by the court is the character of the offense; and that the continuance of the obstruction, or the likelihood of its repetition, are considerations for the discretion of the legislators in meting out the punishment.

Here, we are concerned, not with an extension of congressional privilege, but with vindication of the estab- [294 U.S. 125, 150] lished and essential privilege of requiring the production of evidence. For this purpose, the power to punish for a past contempt is an appropriate means. 7 Compare Ex parte Nugent, Fed. Cas. No. 10,375; Stewart v. Blaine, 1 MacArthur (8 D.C.) 453. The apprehensions expressed from time to time in congressional debates, in opposition to particular exercises of the contempt power, concerned, not the power to punish, as such, but the broad, undefined privileges which it was believed might find sanction in that power. 8 The ground for such fears has since been effectively removed by the decisions of this Court which hold that assertions of congressional privilege are subject to judicial review, Kilbourn v. Thompson, supra; and that the power to punish for contempt may not be extended to slanderous attacks which present no immediate obstruction to legislative processes, Marshall v. Gordon, supra. [294 U.S. 125, 151] Second. The power of either House of Congress to punish for contempt was not impaired by the enactment in 1857 of the statute, Rev. St. 102 ( 2 USCA 192), making refusal to answer or to produce papers before either House, or one of its committees, a misdemeanor. Compare Sinclair v. United States, 279 U.S. 263 , 49 S.Ct. 268. The statute was enacted, not because the power of the Houses to punish for a past contempt was doubted, but because imprisonment limited to the duration of the session was not considered sufficiently drastic a punishment for contumacious witnesses. 9 That the purpose of the statute was merely to supplement the power of contempt by providing for additional punishment was recognized in In re Chapman, 166 U.S. 661, 671 , 672 S., 17 S.Ct. 677, 681: 'We grant that congress could not devest itself, or either of its houses, of the essential and inherent power to punish for contempt, in cases to which the power of either house properly extended; but because congress, by the act of 1857, sought to aid each of the houses in the discharge of its constitutional functions, it does not follow that any delegation of the power in each to punish for contempt was involved, and the statute is not open to objection on that account.' Punishment, purely as such, through contempt proceedings, legislative or judicial, is not precluded because punishment may also be inflicted for the same act as a statutory offense. Compare Ex parte Hudgings, 249 U.S. 378, 382 , 39 S.Ct. 337, 11 A.L.R. 333.10 As was said in In re Chapman, supra, 'the same act may be an offense against one jurisdiction and also an offense against another; and indictable statutory offenses may be punished as such, while the offenders may likewise be sub- [294 U.S. 125, 152] jected to punishment for the same acts as contempts, the two being diverso intuitu, and capable of standing together.'

Third. MacCracken contends that he is not punishable for contempt, because the obstruction, if any, which he caused to legislative processes, had been entirely removed and its evil effects undone before the contempt proceedings were instituted. He points to the allegations in the petition for habeas corpus that he had surrendered all papers in his possession; that he was ready and willing to give any additional testimony which the committee might require; that he had secured the return of the papers taken from the files by Givven, with his permission; and that he was in no way responsible for the removal and destruction of the papers by Brittin. This contention goes to the question of guilt, not to that of the jurisdiction of the Senate. The contempt with which MacCracken is charged is 'the destruction and removal of certain papers.' Whether he is guilty, and whether he has so far purged himself of contempt that he does not now deserve punishment, are the questions which the Senate proposes to try. The respondent to the petition did not, by demurring, transfer to the court the decision of those questions. The sole function of the writ of habeas corpus is to have the court decide whether the Senate has jurisdiction to make the determination which it proposes. Compare Barry v. United States ex rel. Cunningham, 279 U.S. 597 , 49 S.Ct. 452; Henry v. Henkel, 235 U.S. 219 , 35 S.Ct. 54; In re Gregory, 219 U.S. 210 , 31 S.Ct. 143.

Also of note I thought in the area of contempt powers are Kilbourn v Thompson, Anderson v Dunn (and perhaps Groppi v Leslie.)

However, there is also the issue of obstruction of justice under 18 USC 1505:

§ 1505. Obstruction of proceedings before departments, agencies, and committees

Whoever, with intent to avoid, evade, prevent, or obstruct compliance, in whole or in part, with any civil investigative demand duly and properly made under the Antitrust Civil Process Act, willfully withholds, misrepresents, removes from any place, conceals, covers up, destroys, mutilates, alters, or by other means falsifies any documentary material, answers to written interrogatories, or oral testimony, which is the subject of such demand; or attempts to do so or solicits another to do so; or Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress— Shall be fined under this title or imprisoned not more than five years, or both.

I think that would also be applicable. I imagine that there are more mopery and dopery statutes out there that could be applicable, but none really come to mind.

The Wikipedia lays out the process here.

There is a long page from the House of Representatives on the general powers of investigation of the Congress, which talks a bit about both civil and criminal contempt.

C-SPAN had a small summary here.

There is a PDF document at the Senate about the contempt power, but it focuses mostly on the natural tension between the federal executive and the federal legislative branches.

There are also numerous cases from the 1950s and early 1960s that focus more on congressional hearings arising around HUAC, civil rights, and protest activities that hold forth on the power of Congress under contempt laws, but they are more focussed on limiting Congress's powers due to a lack of legislative purpose. That's an area that I am sure will come up -- whatever committee goes forward with contempt must be sure that its brief covers the area that Judge Greer is in danger of being cited: if not, then any case will fall apart.

2,121 posted on 03/18/2005 8:26:29 PM PST by snowsislander
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To: snowsislander
Ooops. My House link is broken; it should be here: http://www.house.gov/rules/95-464.htm#4a1
2,125 posted on 03/18/2005 8:31:04 PM PST by snowsislander
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To: snowsislander

Well, thank you for all that work and research. Did you come away with any feeling that there could be repercussions for the judge who ruled in direct contradicition to the subpoena? (Of course, I have seen the language of the subpoena anywhere .. I sure would like to.) Many thanks, again. PRAYERS FOR TERRI!


2,130 posted on 03/18/2005 8:46:01 PM PST by STARWISE (RIGHT HAS BECOME WRONG -- WRONG HAS BECOME A RIGHT .. PRAY PRAY PRAY FOR TERRI SCHIAVO!)
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