Recent political events have highlighted questions surrounding both the President’s pardon power and Congress’ contempt power. Two aides to President Donald J. Trump were convicted of criminal contempt of Congress—Steve Bannon in 2021, and Peter Navarro in 2023. This Note argues that a pardon for statutory criminal contempt, like that of Bannon and Navarro, would be permissible because the two were held in contempt under 2 U.S.C. § 192, Congress’ statutory criminal contempt power. However, Congress has another contempt power available: inherent contempt. Inherent contempt is, as it sounds, inherent in Congress’ legislative function and is not enumerated in any statute.

Because of certain critical differences between inherent contempt and statutory contempt, inherent contempt should not be subject to the President’s pardon power. First, inherent contempt is not an “Offence[] against the United States.” Second, allowing the President to pardon inherent contempt of Congress would violate the separation of powers between the executive and the legislature. Finally, Ex parte Grossman, which found that criminal contempt of court was a pardonable offense, is not controlling regarding inherent contempt of Congress. The reasons for finding inherent contempt unreachable by the pardon power do not apply to statutory contempt because with statutory criminal contempt, Congress has voluntarily brought the executive into the lawmaking process, and once Congress chooses to do this, it cannot later cut the executive out.

Continue reading The “Pardonability” of Inherent Contempt and Statutory Criminal Contempt of Congress