CLOSE The House Judiciary Committee voted to hold Attorney General William Barr in contempt of Congress, escalating the Democrats' extraordinary legal battle with the Trump administration over access to special counsel Robert Mueller's Russia report. (May 8) AP, AP

WASHINGTON – When House Speaker Nancy Pelosi was asked recently whether Congress will hold administration officials in contempt for refusing Democratic demands for documents and testimony, she dropped this nugget.

“We do have a little jail down in the basement of the Capitol,” Pelosi said to laughter last Wednesday at a Washington Post Live event.

Wait. What? There's a jail in the Capitol?

No. No, there’s not.

There’s something that looks like a jail cell. Except it’s really a tomb. Without the intended body. Which was George Washington’s.

There was a structure known as the Old Capitol Prison. But that building, located across First Street where the Supreme Court now stands, never housed prisoners and lawmakers at the same time.

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Various rooms around the Capitol, including one described in 1868 to have smelled “like the den of some foul reptile,” have been used to hold offenders.

A journalist, who was arrested in 1848 for refusing to divulge who gave him a secret treaty ending the war with Mexico, was imprisoned in a presumably better-smelling Capitol committee room during the day and slept at the sergeant-at-arms’ home at night.

But the last time Congress detained a member of the administration – in 1934 – he was “imprisoned” overnight in a hotel room near the White House before being transferred to a Washington, D.C., jail.

Cold shoulder and cheese

“William P. MacCracken Jr., was a prisoner in a hotel room last night, held on charges of contempt of the Senate, after a day of legal merry-go-round probably unprecedented in court history,” the Washington Post reported at the time. The paper later noted that MacCracken’s first meal at the jail included “cold shoulder, cheese, fried pineapple, creamed potatoes, fruit, jello and coffee.”

A gated vault below the Capitol rotunda has led to a myth that there's a jail in the basement. Built to serve as George Washington's tomb, the vault instead houses a catafalque. (Photo: Maureen Groppe, USA TODAY)

If the Democrat-controlled House votes to hold Attorney General William Barr in contempt – as the House Judiciary Committee did Wednesday – for refusing to turn over an unredacted version of the Russia report, he could legally be taken into custody by the House sergeant-at-arms. Other options include asking the U.S. attorney – who works for Barr – to prosecute. Or, the House can file a civil lawsuit in federal court to compel Barr’s testimony.

It’s unclear if things will get that far, as lawmakers try to negotiate with the White House to unwind what Pelosi has called a “constitutional crisis.”

But the pending showdown has renewed the chatter over whether there is – or ever was – a “Capitol jail,” a question that comes up when lawmakers discuss their enforcement powers.

"I have to say, congresswoman, that what used to be the Capitol jail was the cafeteria now in the basement," Charles Tiefer, a law professor and former House general counsel, said at a 2016 congressional hearing.

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Lawmakers were debating whether Congress can force state attorneys general to comply with congressional subpoenas, a move some Republicans sought to take to try to block state investigations into whether Exxon Mobil Corp. committed fraud by hiding evidence about global warming.

Now, it’s the Democrats who potentially want to exercise Congress’ power to hold people in contempt and imprison them if necessary – a right upheld by the Supreme Court in 1821.

In addition to seeking various documents that the administration doesn’t want to turn over, House Democrats have issued a subpoena for former White House counsel Don McGahn to testify. They’ve also prepared subpoenas for four other former Trump aides. The Senate Intelligence Committee has subpoenaed Donald Trump Jr. to appear before the Republican-led panel.

“In the past, they had a House jail,” Rep. Ted Lieu, D-Calif., a member of the Judiciary Committee, said after Barr refused to appear before the panel this month. “I don't think we're going to go that far, but courts have upheld that as well.”

Katherine Scott, associate historian in the U.S. Senate Historical Office, said the story of a jail in the basement of the Capitol probably persists because of a vault under the Capitol Crypt. The vault was to serve as the tomb for the first president. But by the time the crypt was completed, Washington’s descendants wanted him to remain in his Mount Vernon tomb.

The vault is gated to secure a catafalque, the platform used to support coffins for officials who lie in state.

“I think that some people are assuming, that because of those bars, that was a place where they `imprisoned people,’” Scott said. “That’s just not true.”

Den of 'foul reptile'

But several rooms in the Capitol have been used at various time as detention cells, according to the Architect of the Capitol.

An entry in the 1877 Congressional Record describes the confinement of two Louisiana election officials in “a little room in the basement of the Capitol, with but two windows, opening upon no sunlight, but upon a narrow confined court into which no gleam of sunshine can ever enter.” Used to keep “thieves arrested around the Capitol,” the room was described as smelling “like the den of some foul reptile.”

A Capitol police car is seen on Capitol Hill in Washington. (Photo: Luis Alvarez, AP)

Today, the Capitol Police have a holding cell three blocks from the Capitol. But if House Democrats direct the sergeant-at-arms to arrest Barr – or another member of the administration – it’s more likely that Congress would use its power over the District of Columbia to commandeer a space in the city jail.

Margaret L. Taylor, a senior editor and counsel at the Lawfare blog, wrote in January that such a scenario “would likely not sit well with a public that does not favor physical confrontation in U.S. politics.”

And Vice President Mike Pence last weekpushed back on Pelosi’s description of the confrontation as a constitutional crisis.

“This can be resolved,” Pence told Fox & Friends. “We’ll leave it to the attorney general to work out arrangements. But it’s time to dial down the rhetoric on Capitol Hill.”

Contributing: Bart Jansen

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