Superheroes and Contempt

A few dozen issues into Iron Man’s original Tales of Suspense run, Senator Harrington Byrd (presumably R-NY, weird as that now sounds) made Tony Stark’s life a living hell. Byrd didn’t approve of Stark’s “playboy” lifestyle and was uncomfortable having so many defense contracts going to Stark Industries. His main threat to get what he wanted out of Stark was threatening him with contempt of Congress.

This, as it turns out, is a real thing, associated with Congress’s ability to compel people to appear before congressional committees and subcommittees to answer questions and provide documentation. The Supreme Court first recognized this as an inherent power of Congress in 1821 with Anderson v. Dunn, 19 U.S. 204 (1821). The common law form was replaced by statute in the middle of the nineteenth century, and the current statute is 2 U.S.C. § 192, which provides that a person who refuses to cooperate can be fined up to $1,000 and spend up to a year in jail.

Note that judicial proceedings are unnecessary here: Congress merely needs to issue a finding that a person is in contempt. A person who disputes Congress’s finding may presumably pursue a habeas corpus petition, but as long as a court finds that Congress is acting within its authority, no court will stand in Congress’ way. This is an inherent power, i.e. a power which a particular office may exercise in its own right, on its own behalf, and without needing any particular statutory authorization for it. Inherent powers are conceived to be powers without which a particular office cannot really exist. If Congress lacked the ability to compel people to appear before it, there’s a lot of really important business that couldn’t get done. Congress relies on the testimony and input of outside parties as it attempts to make the best decisions, including constitutionally mandated decisions like giving its advice and consent regarding presidential appointees. Granted, a lot of congressional committee hearings are as much showmanship as they are actual fact finding—believe me, I’ve seen ’em—and a lot of the real information gathering and sharing happens through informal channels, but that is largely because Congress has the power to demand the information it needs if people don’t cooperate informally.

Contempt of court is the most obvious analog among the other branches. Courts do not need statutory authorization to find someone in contempt, nor do those accused of contempt necessarily get a trial. If a person disobeys a court order, a judge can theoretically order them jailed indefinitely, i.e. so long as they continue to disobey. If a judge or civil party wants to actually punish a “contemnor,” i.e. impose some penalty designed not to coerce cooperation but as an actual sanction, there needs to be a trial, but as long as the detention remains coercive, no due process is necessary. Again, contempt of court is an inherent power: it does not derive from a statutory grant, nor can Congress limit the judiciary’s power to find people in contempt. The Supreme Court would strike down such a law before the ink had dried.

The President has inherent powers too. Prosecutorial discretion is one of the big ones. Neither Congress nor the courts may direct the President or his agents to bring charges or maintain a case against anyone, nor can they require that charges be dropped. The ability to choose which cases to prosecute and which not to remains entirely at the discretion of the President. Granted, the President has sworn an oath to uphold the law, but even staying within the bounds of good-faith attempts to do so, there can be wild differences in emphasis. The Department of Justice has a finite budget, but there is an effectively infinite number of potential cases to pursue. An obvious criterion observed by almost all Attorneys General is to only pursue cases where there’s a reasonable chance of winning. Hard to argue with that one. But if, for example, President Obama decided that he wasn’t going to prosecute possession of narcotics charges… there isn’t a lot anyone could do about it. I mean, Congress could defund the entire Department of Justice in retaliation, but that’s a rather ham-fisted approach. Other political compromises are obviously on the table, but when it comes to actually forcing the President to do something, that’s about all there is. Other inherent executive powers include the commander-in-chief power (i.e. only the President can give orders to the military) and the pardon power.

So, back to Tony. Senator Byrd threatens him with two main things: contempt of Congress and revoking his defense contracts. The contempt threat is real. But the latter? Not quite as much. Congress can theoretically exclude a particular contractor from getting any government money—they did the same thing to ACORN in 2009—but though Congress does retain the ability to control Pentagon spending to a significant degree, getting a defense contract revoked within twenty-four hours just isn’t going to happen. It would require a bill passing both houses of Congress and being signed by the President. Now the Secretary of Defense could probably do it that quickly, so pissing off the President is probably a bad idea, but not a Senator. Then again, if a judge ordered Tony Stark to reveal the identity of Iron Man—which could happen for a number of reasons—refusal to do so would likely get him jailed for contempt.

But what about superheroes whose mundane identities aren’t the heads of major national and multinational corporations? Senator Byrd could cause a huge problem for Iron Man without knowing it because he had a beef with Stark, who was associated with Iron Man even before Tony went public as Iron Man. But a politician who wanted to expose Spider-Man or Superman would have a much harder time of it as neither was really associated with a well-known figure. It’s hard to force someone you can’t identify or locate to do much of anything, particularly within the bounds of the law.

6 responses to “Superheroes and Contempt

  1. You mentioned that contempt of court in a coercive action can be effectively indefinite, and there has been at least one case where that held true in Chadwick v. Janecka, 312 F. 3d 597, (3d Cir. 2002) where Chadwick was held for contempt for 14 years with courts stating it could be indefinite until he complied.

  2. Is there any recourse for somebody who is being held in contempt of court or congress by a judge or congressman who is trying to coerce the impossible? For a ludicrous instance, if a judge was convinced that Perry White is Superman and ordered him to fly (assuming Supes isn’t being charged with anything; the judge is just being a jerk, so there’s no 5th Amendment self-incrimination if Perry turns out to be Superman) while Perry was testifying on some matter relating to Lex Luthor’s latest crimes against the Daily Planet, does Perry have any recourse if the Judge holds him in contempt “until such time as [Perry] flies in my courtroom?”

    In a slightly less ludicrous example, if Congress, headed by Senator Kelly, decided that Professor X was in Contempt of Congress for refusing to admit that mutants are a menace to society by their very existence, would the good Professor have any (legal) recourse to their finding of his contempt?

    • In general, the answer is probably that the alleged contemnor could file a habeas petition. That’s the basic recourse for people who believe they are being detained unjustly, and there’s no reason such a petition couldn’t be filed in a contempt case.

      As to the latter, that would clearly be an abuse of power because while Congress can compel you to testify, they can’t compel you to testify a certain way. If Professor X genuinely doesn’t believe that mutants are dangerous, there isn’t any legal way of punishing him for saying so.

      • But doesn’t the same argument apply to the Perry White example? The judge’s belief that Perry can fly is merely a personal belief, just like Kelly’s belief that mutants are a menace. So Perry actually flying would essentially be “testifying a certain way,” i.e. confirming the judge’s preconception. If it’s not known or proven that Perry is capable of flight, then a judge holding him in contempt until he flies is surely just as much an abuse of power, because it’s contingent on the witness conforming to the judge’s desired response whether or not that’s even possible. It’s begging the question in the worst possible way.

        Now, if the judge held Perry in contempt until he submitted to a physical examination to show whether he was human or Kryptonian, that could be valid, because it’s only compelling the witness’s cooperation with the court, not trying to compel a specific desired outcome of that cooperation. (Although really that would be as simple as pricking his finger with a pin. Could Perry refuse to allow even that? Could he be physically coerced to submit to a pinprick, or would that be unethical?)

  3. Could Professor X be required to “name names” of all the mutants that he was personally aware of? Or was that particular Congressional coercion discredited by the McCarthy era?

  4. What exactly would Sen. Byrd be officially using contempt of Congress for? That sounds like a fairly good way to get the Pentagon (the biggest lobby in D.C) angry at him.

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