In the last year, there has been a string of high-profile threats of contempt, including against Donald Trump, Rudy Giuliani, Hunter Biden and Peter Navarro.
In just the last few weeks, we have seen more instances of contempt for attorneys who were duty-bound to patiently and professionally advocate for their clients.
If the contempt power continues to be this widely used — and abused — it has the potential to precipitate tremendous civil unrest in our democratic elections. Something needs to be done quickly to prevent contempt from becoming the reflexive salvo to our disagreements.
Just recently, Georgia defense attorney Brian Steel was arrested in the courtroom for contempt after requesting a mistrial. His oath as an attorney required him to notify the court about an allegedly improper ex-parte communication, where it is claimed that Judge Ural Glanville, the prosecution and a prosecution witness were secretly brought into the judge’s chambers. There, it is alleged that improper “coercion, witness intimidation, and ex-parte communications occurred,” possibly in violation of the defendant’s constitutional rights.
Because Steel refused to disclose where he had learned about the meeting, Glanville sentenced Steel to spend the next 10 weekends in the Fulton County Jail. (Georgia’s Supreme Court has since stayed the ruling on emergency appeal so that Steel will not be confined.)
Elsewhere, on June 12 the House of Representatives held Attorney General Merrick Garland in contempt of Congress for refusing to provide audio tapes of President Biden’s interview with special counsel Robert Hur. Normally that contempt would be brought before a grand jury, and the Justice Department would determine whether to prosecute. Since that referral has now been rejected by the DOJ, the House might now undertake a separate vote for “inherent contempt,” which would allow the physical arrest and incarceration of the attorney general by the House’s own Sergeant-at-Arms.
While some might ask if this is legal, it would not be the first time the House has directly imprisoned people. In a similar case from 1821, the Supreme Court heard Anderson v. Dunn and concluded that either branch of Congress had the inherent authority to arrest, charge and imprison contemnors.
Historically, contempt was a holdover from English common law, intended to allow judges to prevent activities that they believed would obstruct proceedings or interfere with the dignity of the court. The English judicial system took this power seriously, allowing judges wide discretion to impose contempt with harsh remedies, which could include hand amputation or even execution.
The American founders adopted the contempt power and initially codified it in the Judiciary Act of 1789. For hundreds of years, American courts have grappled with the power to maintain order, and they have mostly echoed the justifications from English common law.
Recent cases against attorneys illustrate the breadth of the contempt power. While contempt is intended to ensure decorum for the courtroom or the halls of Congress, the power’s ambiguous nature has been utilized in such expansive ways that it could apply to nearly any situation or person.
The cornerstone of American jurisprudence is that our crimes are written down and codified by statute, thus providing adequate notice to the population of what conduct is disfavored and what the potential penalty might be. Contempt, on the other hand, has often been used as a catchall for anything else.
Overall, what is difficult for current American judges is determining how the contempt power should be balanced with other constitutional rights — most notably, those protections codified in America’s Bill of Rights.
Unfortunately, there are still many unsettled constitutional questions regarding contempt power. Many federal and Supreme Court justices have highlighted issues with the use of contempt — from the lack of meaningful notice or due process rights for the accused, to the absence of firm guidelines on incarceration limits, to larger concerns about appropriate separation of power.
Until these questions regarding contempt power limits are more clearly addressed by the Supreme Court, many judges and defendants will have far more questions than helpful guidance. It is my hope that Congress and the judiciary revisit this legal area with a fresh look, create some clearly defined rules, and provide a comprehensive oversight process for accused contemnors.
Ryan Scott, a staff attorney and legal fellow at the University of Florida’s Levin College of Law, has spent two years researching the constitutional implications of judicial contempt power. His piece, “Contempt: The Original Judicial Cheatcode,” is set to be published in October 2024.