House Republicans could use an arcane legal tool to arrest and hold Hunter Biden in custody should the Justice Department fail to prosecute him for being in contempt of Congress.

Following his refusal to comply with a subpoena from the House Oversight Committee last week, GOP lawmakers say they intend to hold Mr. Biden in contempt of Congress, likely as soon as they return from Christmas vacation in early January. Whether President Biden’s Justice Department will prosecute Mr. Biden fils, however, remains unclear. Should the department decline to prosecute, Republicans could use their own legal powers to arrest and detain the president’s son until he answers their questions.  

The process is known as inherent contempt, and it “permits Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands,” according to the Congressional Research Service.

Usually, when individuals defy congressional subpoenas that demand appearances for testimony or deposition or require the production of documents, the House may put a contempt resolution on the floor that would then allow the United States Attorney for the District of Columbia, who reports to the Attorney General, to impanel a grand jury to consider an indictment. The process of inherent contempt, though, allows the House to circumnavigate the executive branch and use its own branch of law enforcement. 

While Mr. Biden made a dramatic showing on the Senate side of Capitol Hill on December 13 to tell congressional Republicans that he was prepared to testify publicly — but only publicly — the GOP points out that they did not issue a subpoena for his public testimony. Rather, they subpoenaed Mr. Biden for a sworn deposition, which would be conducted for several hours behind closed doors, conducted by staff lawyers. 

These depositions lack the speechifying and grandstanding by elected representatives that tends to dominate public hearings and were used to great effect by the members of the Select January 6 Committee.

The last time the inherent contempt power was invoked was during the 1930s when a lobbyist for the airline industry failed to comply with a Senate investigation. The lobbyist, William MacCracken, was charged by the Senate with defiance of congressional subpoenas, and after a trial in the upper chamber was held and presided over by Vice President Garner, the Senate voted to imprison MacCracken for ten days. 

He was held at the District of Columbia’s Willard Hotel, which, incidentally, is where President Trump’s allies such as Mayor Giuliani and Steve Bannon set up a “command center” in January 2021 to help him stay in office.

MacCracken later issued a petition of habeas corpus, arguing that he had been illegally detained. The Supreme Court, however, in Jurney v. MacCracken, said that MacCracken had been treated fairly under federal law. 

“Here, we are concerned not with an extension of congressional privilege, but with vindication of the established and essential privilege of requiring the production of evidence,” Justice Louis Brandeis wrote for the court in 1935. “For this purpose, the power to punish for a past contempt is an appropriate means.”

Should Congress use its inherent contempt powers, it would dispatch the House’s Sergeant-at-Arms and his officers to arrest Mr. Biden. It is unclear where he could be held, as the old Capitol prison was demolished in the 19th century, and there are no prison cells on Capitol Hill. The Capitol Police do have a holding facility at their headquarters behind the Hart Senate Office Building.

The idea of deploying the process of inherent contempt isn’t some idle fantasy. In fact, just two years ago, one House Democrat, Congressman Ted Lieu, tried to use the inherent contempt power to “find” and put into “confinement” the former White House chief of staff, Mark Meadows. Mr. Meadows had refused to cooperate with the Select January 6 Committee after he — like Mr. Biden — was issued a lawful subpoena. 

“I have legislation that will allow the House of Representatives to execute our inherent contempt power,” Mr. Lieu told MSNBC in December 2021 after the House held both Messrs. Meadows and Bannon in contempt of Congress and referred the matter to the Department of Justice. 

“It’s a power that the Supreme Court has upheld,” he continued. “We can use it to find witnesses or to put them into confinement. It’s time we use that because right now, the trial for Steve Bannon for example, is not set until August. For Mark Meadows, it will probably be even further, and when you can delay subpoenas that long, it effectively renders subpoenas meaningless. … congressional subpoenas have been rendered largely meaningless by the people who want to evade them.”

Mr. Bannon, whom the Justice Department had charged after he was held in contempt of Congress, was later convicted and sentenced to four months in prison, which he is now appealing. The DOJ decided not to prosecute Mr. Meadows.

The top Democrat on the Oversight Committee, Congressman Jamie Raskin, who has defended Mr. Biden strenuously amid the Republican-led investigation, also called on the House to use the power of inherent contempt to compel testimony. 

It came amid the Judiciary Committee’s probe into alleged DOJ interference during the Trump era into Special Counsel Robert Mueller’s Russia investigation. The committee had subpoenaed a former White House Counsel, Don McGhan, for testimony, which a court later said was unenforceable. Mr. Raskin said that the decision was unacceptable. 

“The Supreme Court has always emphasized that the two chambers of Congress have the same power to enforce their orders against defiant witnesses as courts have to enforce theirs,” Mr. Raskin said in 2020. “We need to restore and reinvigorate our inherent powers of legislative contempt to address the incorrigible lawlessness of the Trump administration.”