Congress Can Arrest Hunter Biden for Contempt, as Demanded by Rep. Nancy Mace

Congress Can Arrest Hunter Biden for Contempt, as Demanded by Rep. Nancy Mace

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It has been 88 years since an individual was detained by Congress for refusing to comply with a subpoena to provide testimony or information.

News Analysis

Hunter Biden could have been arrested when he appeared on Jan. 10 during the House Oversight and Accountability Committee’s markup session on a Contempt Resolution citing him for refusing to comply with a congressional subpoena.

However, a majority would have to approve such an event, according to a Congressional Research Service report.
Rep. Nancy Mace (R-S.C.) told members of the House Oversight and Accountability Committee during the tumultuous proceeding marked by President Joe Biden’s son’s unexpected appearance in the audience that he should be taken into custody by the Capitol Police.

“I think Hunter Biden should be arrested right here right now and go straight to jail,” Mace declared. “This nation is founded on the rule of law and the premise that the law applies equally to everyone no matter what your last name is.”

The meeting is devoted to marking up and voting on whether to refer the Resolution of Contempt against Mr. Biden after he refused to appear on December 13, 2023, for a closed-door on-the-record examination by committee members and lawyers for the majority and minority.

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Mr. Biden instead held an outdoor news conference hosted by Rep. Eric Swalwell (D-Calif.)  on the Capitol grounds in which he said he should be allowed to appear in a public hearing rather than the closed-door proceeding specified in the subpoena.

During the Jan. 10 session, Mr. Biden and Abbe Lowell, his lead attorney, were seen frequently whispering and laughing as Rep. James Comer (R-Ky.), the committee chairman, and Ranking Member Jamie Raskin (D-Md.) and other panel members exchanged barbs, challenges, and interruptions.

According to the Congressional Research Service (CRS), Mr. Biden, or any other individual who refuses to comply with a lawfully issued congressional subpoena, can be arrested and detained under the inherent contempt power.

“In comparison with the other types of contempt proceedings, inherent contempt has the distinction of not requiring the cooperation or assistance of either the executive or judicial branches. The House or Senate can, on its own, conduct summary proceedings and cite the offender for contempt,” according to a 2012 CRS report updated in 2017.

In addition to “the long dormant inherent contempt power [that] permits Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands,” the report said, there are two other means at the legislature’s disposal to enforce its subpoenas:

“Second, the criminal contempt statute permits Congress to certify a contempt citation to the executive branch for the criminal prosecution of the contemnor.

“Finally, Congress may rely on the judicial branch to enforce a congressional subpoena. Under this procedure, Congress may seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena.”

The report also explained that the inherent contempt power is quite broad, noting that “the power of Congress to punish for contempt is inextricably related to the power of Congress to investigate. Generally speaking, Congress’s authority to investigate and obtain information, including but not limited to confidential information, is extremely broad.

“While there is no express provision of the Constitution or specific statute authorizing the conduct of congressional oversight or investigations, the Supreme Court has firmly established that such power is essential to the legislative function as to be implied from the general vesting of legislative powers in Congress.”

The inherent contempt power is not unlimited, however, according to the report. Before an individual can be arrested and detained, for example, a majority of the House would be required.

In that case, Mr. Biden could not have been arrested “right here right now,” as stated by Ms. Mace.

U.S. Rep. Nancy Mace (R-S.C.) departs the U.S. Capitol in Washington on May 31, 2023. (Stefani Reynolds/AFP via Getty Images)
U.S. Rep. Nancy Mace (R-S.C.) departs the U.S. Capitol in Washington on May 31, 2023. (Stefani Reynolds/AFP via Getty Images)

Also, the length of detention cannot exceed the session of Congress in which the subpoena was issued.

“Although the [individual found in contempt] can be incarcerated until he agrees to comply with the subpoena, imprisonment may not extend beyond the end of the current session of Congress,” the report said.

“Moreover, inherent contempt has been described as ‘unseemly,’ cumbersome, time-consuming, and relatively ineffective, especially for a modern Congress with a heavy legislative workload that would be interrupted by a trial at the bar.

“Because of these drawbacks, the inherent contempt process has not been used by either body since 1935,” according to the report.

The inherent contempt power was previously at issue in 2019, when then-Attorney General William Barr refused to appear before the House Judiciary Committee regarding allegations about then-President Donald Trump.

Spokesmen for Mr. Comer and Ms. Mace did not respond to The Epoch Times’ request for comment.

Both of Mr. Trump’s sons, Donald, Jr. and Eric, appeared multiple times before Congress in response to subpoenas issued by the House under then-Speaker Nancy Pelosi (D-Calif.).

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