How Criminal Contempt of Congress Works—And When It’s Actually Enforced

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On February 3, 2026, something unusual happened: Bill and Hillary Clinton agreed to testify before Congress about what they knew about Jeffrey Epstein. They’d spent months resisting. Their lawyers had proposed alternatives, argued the subpoena didn’t follow proper legal procedures, offered to testify only about certain topics for a limited time. Then House Republicans announced they had the votes to recommend holding both Clintons in contempt—which would mark the first time a former president faced such a congressional action—and set a noon deadline. Within hours, the Clintons gave in completely.

The speed of that reversal tells you something about when Congress’s contempt threat forces compliance instead of making headlines.

Congress votes to hold someone in contempt fairly regularly. But the Department of Justice—which handles the prosecution—has pursued criminal charges in only a small number of those cases, with most citations never resulting in prosecution.

So when does contempt of Congress work? When does it compel compliance instead of becoming another forgotten vote?

The Structural Weakness: DOJ Discretion

The criminal contempt statute dates to 1857. After Congress votes to hold someone in contempt, the contempt vote goes to the U.S. Attorney, who asks a grand jury to decide. Despite language in the law that says the U.S. Attorney’s office “shall” present the matter to a grand jury, a 1984 DOJ memo gave prosecutors the power to decide whether to prosecute. They can decline, and they do regularly, when the contempt citation comes from the opposing political party.

This creates a backwards situation where Congress has the authority to cite people for contempt, but the executive branch controls whether legal consequences follow. When those branches are controlled by opposing parties—or when the witness is a current administration official—contempt votes often become meaningless political moves.

Bill and Hillary faced different circumstances. The Democratic-controlled House was preparing to refer contempt charges to a Democratic administration’s Justice Department. Nine Democrats voted with Republicans on Bill’s contempt resolution, three on Hillary’s. That bipartisan support mattered enormously because it showed this wasn’t partisan politics that DOJ leadership could safely ignore.

The Two People Who Went to Prison

Steve Bannon and Peter Navarro both refused to comply with congressional subpoenas, claiming executive privilege based on their service in the Trump administration. Both were cited for contempt by the House. Both were prosecuted by the Biden Justice Department—because by then, Trump was a former president with no authority over DOJ decisions.

Bannon was convicted in July 2022 and sentenced to four months in prison plus a $6,500 fine. These prosecutions marked a significant break from recent history, representing rare cases where contempt citations led to both conviction and imprisonment.

What made these two different from all the others? They had no institutional shield. Trump couldn’t protect them anymore. They weren’t current administration officials whose prosecution would create conflicts between branches of government. They were former officials claiming a former president had told them to assert privilege—a claim courts said wasn’t good enough for refusing to even appear.

Why the Clintons’ Calculation Changed

Throughout late 2025 and early 2026, their legal team negotiated. They proposed that Bill submit to a four-hour interview limited to matters related to Epstein investigations and prosecutions. They suggested Hillary provide a sworn written statement instead of appearing in person.

Then came the deadline: noon on February 3. Agree to the terms or face contempt votes with apparent bipartisan support.

Their attorneys calculated the risks and costs. A criminal contempt prosecution would mean months of DOJ evaluation, possible charges, court arguments, scheduling the trial, the trial itself, and years of legal costs and media coverage even if they ultimately prevailed. Against that, compliance meant appearing for depositions, testifying under oath, and accepting whatever political damage or legal problems came from what they testified.

They chose compliance. The threat had become credible enough that the costs of defiance exceeded the costs of cooperation.

The Executive Privilege Shield

One defense changes the entire calculation: executive privilege. When a sitting president directs a current administration official to assert executive privilege and refuse congressional demands, that official faces zero risk of contempt prosecution. Multiple legal opinions from the Justice Department have established that sitting officials who follow presidential orders cannot be prosecuted for contempt for keeping information secret.

This means current officials are completely protected. Former officials claiming past presidential directions face much less protection, as Bannon and Navarro discovered.

Bill and Hillary didn’t primarily rely on executive privilege claims. They challenged the subpoena’s validity and proposed alternatives, but they didn’t claim that a sitting or former president had directed them to refuse. That made the contempt threat more credible. No privilege shield. No institutional protection. The question was whether they’d comply or face prosecution.

What Bipartisan Support Means

Nine Democrats voted with Republicans on Bill’s contempt resolution, three on Hillary’s. In our polarized Congress, that’s remarkable.

Partisan contempt votes don’t work because everyone knows the opposing party’s DOJ will decline prosecution. But bipartisan support signals something different: prosecutors might prosecute instead of ignoring it. When members of the witness’s own party vote for contempt, it suggests the underlying issue goes beyond political games.

For Bill and Hillary, the Epstein scandal was so damaging that some Democrats had to support contempt measures rather than appear to be protecting powerful figures from accountability. That bipartisan element made DOJ prosecution more likely, which made the threat more credible, which made compliance rational.

The Enforcement Mechanisms Congress Abandoned

Congress has another option: inherent contempt. Under Congress’s own power to punish people directly, Congress can arrest and hold someone until they testify or Congress adjourns. No DOJ involvement required. No prosecutorial discretion to worry about.

Congress hasn’t used this power since 1934. Why? Partly practical concerns—inherent contempt proceedings take up huge amounts of Congress’s time because Congress would have to hold a trial itself. But there’s another factor: Congress would be directly responsible for enforcement. Congress couldn’t blame someone else if it didn’t work.

Criminal contempt, by contrast, allows members to vote for contempt and then blame DOJ when prosecution doesn’t follow. Some reformers have proposed Congress use inherent contempt to fine people daily rather than detention. Congress could fine the person refusing to comply daily until compliance occurred. Congress hasn’t enacted such reforms, which suggests members might prefer the current system where they can claim to support enforcement while the executive branch gets blamed if prosecution doesn’t happen.

The Timeline Problem

Even when DOJ decides to prosecute, the process moves slowly enough to weaken Congress’s power. After Congress votes for contempt, the contempt vote goes to the U.S. Attorney, who asks a grand jury to decide. That decision-making process can take weeks or months. Then comes possible charges, court arguments, scheduling the trial, and the trial itself.

Peter Navarro was indicted in June 2022 but his trial didn’t begin until September 2023. Fifteen months between indictment and trial. During that time, witnesses can negotiate, file legal motions, and decide if it’s worth refusing.

Bill and Hillary faced a compressed timeline. That compression eliminated the extended negotiation period that might otherwise have stretched for months. Testify now or face prosecution—no compromise, no more talking. When committees set firm deadlines and refuse compromise, witnesses face clearer, harder choices.

Congressional Power Depends on Executive Cooperation

Congressional subpoena power increasingly depends on executive branch cooperation rather than being independent power Congress can use on its own. When the same party controls both Congress and the Justice Department, contempt threats seem more real. When different parties control Congress and the White House, contempt votes don’t do anything. When both parties support contempt, prosecution becomes more likely no matter which party controls DOJ. But none of these conditions give Congress its own way to enforce subpoenas.

Congress’s power to demand information depends on whether the executive branch is willing to prosecute noncompliance. Congress hasn’t adopted direct enforcement mechanisms even though DOJ has repeatedly refused to prosecute contempt. This suggests congressional leaders think direct enforcement is too harsh, or that members like the current system because they can claim they tried while blaming the Justice Department for blocking them.

The Pattern Going Forward

As Congress becomes more divided, expect contempt enforcement to become less reliable. Partisan contempt votes will continue because they help members politically even if they don’t lead to prosecution. Witnesses will increasingly know that partisan contempt votes won’t hurt them.

Bipartisan contempt measures will remain rare, limited to cases where the issue is so damaging or so clearly wrong that members of both parties have to support punishment. The Epstein investigation was one of those cases. Most oversight investigations won’t be that toxic.

Current administration officials will continue to face almost no risk of prosecution when following presidential orders to keep information secret, because DOJ policy protects them. Former officials who don’t have a president protecting them will face higher prosecution risk, but only when the current administration’s DOJ thinks prosecution helps them politically.

The numbers tell the story: ten contempt citations since 2008, including the two Bannon and Navarro prosecutions. Both successful prosecutions involved former Trump officials prosecuted by a Biden Justice Department—hardly a pattern that shows consistent, fair enforcement. Between 1974 and 2022—forty-eight years—only two people were convicted and punished for refusing to testify before Congress.

What the Clintons’ Compliance Reveals

Bill and Hillary’s agreement to testify shows contempt threats can work. But looking at what made it work shows how easily it could have failed. It required bipartisan support that made DOJ prosecution seem likely. It required the witnesses to be former officials without presidential protection. It required a committee chairman willing to set firm deadlines and refuse compromise. It required an issue so damaging that even members of the witness’s own party had to support contempt.

Those conditions all came together in this case. They probably won’t all come together in the next case.

Congressional contempt works inconsistently, is used selectively, and depends on politics rather than on what the law says. Enforcement depends on whether everything works out right—the same party controls Congress and DOJ, or both parties agree so strongly that prosecution becomes necessary, or a witness whose own party won’t defend them.

Congress has the power to cite witnesses for contempt. Whether that power forces people to comply depends more on politics than on law, which party is in power, and whether the witness has a president protecting them. Most witnesses won’t face the circumstances Bill and Hillary faced. Most contempt votes will continue to be political moves that don’t punish anyone—citations that don’t lead to prosecution, subpoenas that witnesses can safely ignore because Congress can’t force them to comply.

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