Congress, Its Inherent Powers, and the Epstein Files

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By Ray Brescia

As Congress returns from the holiday recess, it will face a number of pressing issues, including addressing the use of military force in Venezuela, dealing with a looming budget deadline to keep the government open, and the fact that tens of millions of Americans will see their health insurance premiums skyrocket. But none of these issues is likely to distract Americans from the ongoing scandal involving the U.S. Department of Justice’s failure to abide by the letter and spirit of the Epstein Files Transparency Act. There are still millions of files that it has failed to produce in violation of the law, and those it has released are heavily redacted—without explanation. When someone defies federal law, it is the DOJ that is responsible for holding them to account. So what can be done when it is that same federal agency that appears to be violating the law?

Since the first decade after ratification of the U.S. Constitution, Congress has exercised what has come to be known as its inherent power to hold in contempt those who would frustrate the legislative branch’s constitutional and institutional functions. There’s no reason for Congress to stop doing so now in the face of DOJ intransigence regarding compliance with the Epstein files law.

In the 1790s, when two land speculators Robert Randall and Charles Whitney were accused of attempting to bribe members of Congress, this was seen as an effort to undermine the will of both elected officials and the people. But the legislature in the new nation had yet to pass a criminal statute outlawing bribery so there was as no way to prosecute them under existing law.

Instead, Congress effectively tried Randall and Whitney in the House of Representatives and convicted Randall in a lopsided vote. He was held in confinement by the House Sergeant-at-Arms in the Capitol complex, then in Philadelphia. Whitney, on the other hand, escaped punishment, but received a reprimand from the House.

James Madison, then a member of the House of Representatives from Virginia, believed both men guilty, but he voted against conviction. In a letter to Thomas Jefferson about the exercise of this power he would explain that: “it will be difficult, I believe, to deduce the privilege from the Constitution, or to limit it in practice.”

Nevertheless, roughly twenty years later, another individual, John Anderson, was also charged with attempting to bribe members of Congress. Anderson challenged the effort in court, arguing that his confinement constituted a trespass and false imprisonment. The Supreme Court upheld Congress’s inherent power to “to guard itself from contempts.” Without that authority, the Court noted, this would leave Congress “exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it.”

One of the more recent cases in which this power was exercised—and also challenged unsuccessfully—involved the Congressional investigation into the Teapot Dome Scandal during the administration of President Harding in the 1920s. There, the Senate sought to subpoena Mally Daugherty, the brother of then-Attorney General Harry Daugherty. Mally, the head of an Ohio bank implicated in the scandal, refused to testify before the Senate. He was arrested and held in confinement in the Capitol, and, he, like Anderson, would bring legal action challenging his arrest.

But the Supreme Court once again endorsed the exercise of the inherent Congressional authority to punish those who would frustrate its legitimate ends. As the Court found, where the Senate investigation involved “the administration of the Department of Justice—whether its functions were being properly discharged or were being neglected or misdirected,” supporting those efforts through the contempt power was well within the scope of Congress’s authority.

Moreover, given the fact that one particular question before the Senate was “whether the Attorney General and his assistants were performing or neglecting their duties in respect of the institution and prosecution of proceedings to punish crimes and enforce appropriate remedies against the wrongdoers,” investigating Daugherty was also within Congress’s power. And if the Senate’s ends were legitimate, then the exercise of the inherent power against Daugherty for frustrating them was also legitimate.

Today, both houses of Congress still possess this authority. While Congress has passed, and the DOJ has enforced, a law regarding contempt of Congress, including, most recently, when it obtained convictions of Steve Bannon and Peter Navarro for their failure to provide information to Congress regarding the events of January 6, 2021, again, that law requires the DOJ to prosecute violations of it.

Unlike that statute, Congress does not need the DOJ to enforce its inherent powers. In fact, as the case against Mally Daugherty shows, Congress can wield such powers when the Executive Branch itself is suspected of malfeasance. The exercise of such powers also does not require formal legislation, which would otherwise be subject to the Senate filibuster: either chamber can proceed on its own when its members approve resolutions holding someone in contempt.

Whether the DOJ and FBI are complying with the Epstein files law remains to be seen, but it does not look good. For example, we know that there has been a selective release of certain copies of files and some of the files are so heavily redacted that one cannot glean any information from them. What are the bases for withholding information and these redactions? The law itself says that “No record shall be withheld, delayed, or redacted on the basis of embarrassment, reputational harm, or political sensitivity.” So, why has so much been withheld and/or redacted?

In addition, the law also says that “All redactions must be accompanied by a written justification published in the Federal Register and submitted to Congress.” Even first-year law students know that “all means all,” and the deadline for coming clean on these redactions has already passed.

Should Congress pursue inherent contempt against DOJ officials, their arrest and/or confinement is unlikely and constitutionally suspect as a violation of the principle of separation of powers. An argument can also be made that where the executive branch is withholding information based on “executive privilege,” the contempt power is unavailable, though it is hard to argue such privilege exists in this instance involving the private documents and other records of a private individual.

At the same time, either chamber of Congress could vote to hold executive branch officials in contempt and issue daily fines for their failure to respond to requests for information regarding just how the Justice Department and FBI are complying—or failing to comply—with the express obligations set forth in the Epstein files law.

We do not have to look very far in the past to see an example of Congress seeking to fine a DOJ official for failing to comply with a Congressional demand for information. In the summer of 2024, Republicans in the House voted to hold then-Attorney General Merrick Garland in contempt for his refusal to release the audio recording of the interview conducted by special counsel Robert Hur of President Biden as part of the investigation into mishandling of classified documents. Some also sought to fine Garland $10,000 a day for his noncompliance with Congressional demands for the information. That effort only failed by a margin of 204-210 when several Republicans voted with Democrats to oppose the measure.

Even though they did not secure the votes to approve a daily fine for continuing noncompliance, Republicans in the House overwhelmingly believed they had the authority not only to hold Garland in contempt of Congress through the exercise of its inherent powers (which they did), but most also believed that power authorized them to issue a financial penalty to exact compliance.

Unlike in the Garland matter, where the public was not exactly riveted by Congressional efforts to hold him in contempt, Congress now has a political gale at its back in the Epstein matter. Given the nature of the crimes revealed in those files, it is difficult for the cover up here to be worse than those crimes. Regardless, the apparent cover up is bad too. But Congress is not powerless to take action to demand answers for the American people, not just about the files themselves, but the extent to which the Trump Department of Justice may have withheld those answers from all Americans in apparent defiance of the law.

Ray Brescia is a Professor at Albany Law School and author of The Private Is Political: Identity and Democracy in the Age of Surveillance Capitalism.