John A. Boehner, R-Ohio, asked about using his power as speaker of the House to order the arrest of Lois Lerner, told Fox News he doesn't think invoking the "inherent contempt" clause is appropriate.
The speaker, in an interview with Maria Baritomo that aired on "Sunday Morning Futures," said it's up to Attorney General Eric H. Holder Jr. to arrest Lois Lerner, the former Internal Revenue Service official the House voted to hold in contempt last week .
"Will he do it? We don't know. But the ball is in his court," Boehner said.
But, as CQ Roll Call's Katy O'Donnell reported April 29, the speaker has the power, upheld by the Supreme Court, to order the Capitol Police to arrest Lerner and hold her for trial .
Congress' "inherent contempt" power hasn't been used since 1935, but it has been upheld twice by the Supreme Court, in 1821 and 1927, according to O'Donnell's article.
The House first pursued inherent contempt proceedings in 1795 against two men accused of offering bribes to lawmakers, and more than a dozen inherent contempt cases were tried in Congress over the course of the next six decades.
According to O'Donnell:
"The people rounded up by the sergeant-at-arms ranged from would-be bribers to an attorney general’s brother who was imprisoned in 1927 for refusing to comply with a subpoena in a Senate investigation of the lack of prosecution of allegations of antitrust violations. The offending witness is supposed to be locked up in the Capitol, but Congress also has turned them over to the city jail." Boehner, who acknowledged during the Fox interview that "I'm not the historian here," said the use of the "inherent contempt" clause would be unprecedented.
"There's a provision in the Constitution that has never been used. I'm not quite sure that we want to go down that path," he said.
"It's up to the Attorney General Eric Holder to do his job."