Editor’s Note: This story was first published on October 14, 2021. It has been updated to reflect the House select committee’s pursuit of an additional criminal contempt referral.
Members of the House select committee investigating the January 6 attack on the US Capitol have shown they’re willing to pursue criminal contempt referrals against witnesses who refuse to comply with the panel’s subpoenas.
But what does that mean?
Criminal contempt is one of the three options the congressional panel can pursue to enforce its subpoenas, along with civil and inherent contempt.
Former President Donald Trump’s former chief of staff Mark Meadows is the latest official to face the possibility of such a referral from the panel. Committee Chairman Bennie Thompson said that Meadows left the committee with “no choice but to advance contempt proceedings” after he stopped cooperating with the panel.
The committee approved a criminal contempt report against Trump ally Steve Bannon in October after he refused to comply with a subpoena deadline.
Here’s what criminal contempt is and how it compares with civil and inherent contempt:
Once a criminal contempt referral clears the House select committee, it heads to the full House for a vote. If that vote succeeds, House Speaker Nancy Pelosi certifies the report to the United States attorney for the District of Columbia.
Under law, this certification then requires the United States 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 could take years, and historic criminal contempt cases have been derailed by appeals and acquittals.
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 Donald 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. Some, like a House subpoena for Trump’s IRS returns, still linger before a trial judge.
The third option the panel 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.
CNN’s Zachary Cohen, Ryan Nobles, Annie Grayer, Whitney Wild and Kristen Holmes contributed to this report.