Use of the inherent contempt power dates back to 1795, when Congress had three men arrested for offering bribes to lawmakers. The procedure fell into disuse because it is “cumbersome, time consuming and relatively ineffective,” according to the Congressional Research Service. Instead, cases are turned over to the courts. But the MacCracken case, which went all the way to the U.S. Supreme Court, could provide a precedent for the current standoff.
In 1933, Sen. Hugo Black (D-Ala.) began an investigation into allegedly noncompetitive awards of airmail contracts in the previous administration of Republican President Herbert Hoover. Black charged that in 1930, mail operators met secretly in a room next to the office of the postmaster general to discuss “the dividing up” of federal airmail routes. Running the meeting was MacCracken, then the nation’s first assistant secretary of commerce for aeronautics. Afterward, Black said, the postmaster general awarded routes “unjustly, unfairly and illegally.”
After Franklin D. Roosevelt was elected president in 1932, MacCracken became the airmail industry’s Washington lawyer and lobbyist. When Black’s Special Committee to Investigate Air Mail and Ocean Mail Contracts sought to seize his records, MacCracken resisted, claiming lawyer-client privilege. Black, a future Supreme Court justice, replied, “Even when a man is employed as a lawyer, his activities must be legal and in conformance with sound public policy to warrant the privilege of secrecy regarding them.”
The tug of war exploded at a Senate hearing when MacCracken revealed he had allowed officials of two companies to remove some documents from his office in the National Press Building. Even one of the lawyer’s defenders on the committee, Sen. Wallace White (R-Maine), declared that was a “fool thing to do.”
Northwest Airways executive L.H. Brittin took personal letters from the files, tore them up and threw them in a wastebasket. The secretary of the president of Western Air Express also removed some papers. One of Western’s vice presidents was Herbert Hoover Jr., son of the former president.
The committee unanimously voted to seize the records and instructed Senate Sergeant-at-Arms Chesley Jurney to arrest MacCracken. Jurney held the lawyer in his Senate office for an hour before turning him over to MacCracken’s private attorney. The Senate then charged MacCracken and the three air company officials with contempt and scheduled a trial before the entire Senate of 96 members. Vice President John Nance Garner would preside as judge. Meanwhile, Roosevelt canceled all airmail contracts and temporarily turned delivery over to the U.S. Army.
The day of the trial MacCracken failed to show up.