Is inherent contempt pardonable?

by Kagro X

Here's the situation: Harriet Miers has bugged out on her subpoena and will refuse, at the president's order, to even appear before the House Judiciary Committee as required tomorrow.

The response from Conyers and subcommittee chair Linda Sanchez:

A refusal to appear before the Subcommittee tomorrow could subject Ms. Miers to contempt proceedings, including but not limited to proceedings under 2 U.S.C. § 194 and under the inherent contempt authority of the House of Representatives.

Good to see inherent contempt being contemplated. To this point, it has been a mystery whether the relevant authorities at the committees have been aware of that option. We've always assumed they were at least aware, but they've played their cards close enough to the vest that nobody was ever 100% sure.

Well, now we know. And we probably owe a debt of gratitude for it to Congressman Brad Miller, for passing on to Rep. Sanchez his discoveries about and knowledge of the precedents for inherent contempt back in March, after encountering his own difficulties with "administration" stonewalling of his investigative subcommittee of the Science and Technology panel.

Our previous discussions of contempt of Congress procedures have allowed us to hash out the shortcomings of statutory contempt and the high-stakes game of inherent contempt. Chief among the statutory procedure's shortcomings: it depends for its enforcement on the non-partisan cooperation of the U.S. Attorney. And if we were guaranteed that, we wouldn't be here subpoenaing everybody, now would we?

Now, in light of the Scooter Libby pardon (and that's what it is, or at least what it will be), we have to consider another possible shortcoming: that statutory contempt of Congress is presumably pardonable by the president.

There was a time, of course, where such a pardon would have been considered so outrageous, and so utterly beyond the pale, that raising the concern would have gotten you laughed off The Hill. But no longer. After all, we just saw Bush issue exactly the type of pardon that James Madison himself once said:

[I]f the President be connected, in any suspicious manner, with any person, and there be grounds [to] believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty...

That, in turn, has led many to wonder whether inherent contempt is pardonable. The answer is: I don't know.

But here's my thinking on it.

The presidential pardon power extends to all "offences against the United States." I don't know what you'd call inherent contempt, but if there's any argument to be made that it isn't a federal crime, you might have an argument that the presidential pardon power is ineffective against it.

The Congressional Research Service says (PDF) the purpose of the imprisonment (or other sanction) under inherent contempt may be either punitive or coercive -- i.e, a non-compliant witness can be sentenced to a specific term as punishment for non-compliance, or he may be held indefinitely (or at least until the adjournment sine die of the house that sentences him) in order to coerce compliance.

That sets up a rough parallel to ordinary, judicial contempt of court sentences. There's criminal contempt, which is a specific punishment for bad behavior, and there's civil contempt, which is designed to enforce compliance with specific court orders. Criminal contempt carries a sentence for a set term, but civil contempt can be indefinite, and lasts until the contemnor agrees to comply with the judicial order in question.

If you draw a parallel between the two types of judicially ordered contempt of court and the two different reasons and sentences that can be passed under inherent contempt of Congress, it becomes pretty easy to argue that someone sentenced under inherent contempt and imprisoned in order to coerce compliance is being held on charges analogous to a civil charge -- and therefore arguably not subject to pardon.

Comments

[darclay]

Excellent!!! SARA,NOLO,Bmaz,...comments?

[Other Tom]

Goodness gracious--the portly ambassador was certainly squirming today, and rightly so. The nation was left to wonder: why is this preposterous fraud here? What is the purpose of this hearing? How low can congressional approval ratings go? What is the IQ of John Conyers?

Oh, this was a magnificent day for us on the right. Some folks we have long known to be dishonest dopes have now been exposed as...well, as dishonest dopes. Too bad hardly anyone was watching.

How did the ratings of these hearings compare to the boffo Al Gore embarrassment? I understand he lost out to "Cops" re-runs. But mind you, that's no disgrace: "Cops" is a fine, fine program.

[Kagro X]

I watched. Standard fare from the Republican side. Nothing new was learned by Democrats, or exposed by Republicans.

Zero.

Although Steve Cohen had a good question about what happens if Libby violates the terms of his supervised release, which Bush's commutation left in place.

Most likely answer: nothing. You can't be ordered by to a prison sentence you've had commuted.

[Tony R]

Another pardon from Bush could have the desired effect of forcing the entire country to sit up and take notice of what's going on. Right now most people aren't really sure what all the fuss is about. If he were to pardon another White House official for contempt of Congress, I think your "average Joe" is going to start paying attention to this President's views about the rule of law.

[jazz]

Once again I would like to point out either in addition to what is already discussed by Kargo X there is a secondary remedy which again is civil in nature and would be unpardonable. File a a complaint with the state bar of Texas against Meiers. By not showing up for the hearing and as a fiduciary of the court this could come under the heading of moral turpitude. Take her damm bar card away and then see how fast she will scream. Anyone out there in Texas reading this?

[sid58]

I thought I heard Sara Taylor say "I can't remember what I had for breakfast last week" (and could that be a lie?). Leahy's caution that she may be found in contempt must have convinced the Bush-puppeteers to keep Miers away.

[Looking_for_a_way_Out]

You've got to excuse OT. He likes lies from his government. Lots of them. Big lies. Steaming lies. Lies that make him all tingly, in that special "Bring em on" sort of way. OT believes there really were WMDs in Iraq and all evidence to the contrary is the result of a Democratic Conspiracy to infiltrate our armed forces and undermine President Bush.

Okay, in truth, OT just is upset that Wilson actually got the truth out. He would have preferred to believe that the intelligence really did support the war. It is really an ends justifies the lies sort of position. He will relentlessy pursue Joe Wilson, in spite of the fact that what Joe Wilson did was expose a lie told by powerful people to instigate a war. It has not and probably never will occur to OT that his continual attacks on Wilson do nothing more than expose OT as a willing dupe. He may not be smart he is consistent.

[Marky]

I wonder if someone could explain the "physics" of inherent contempt to me.
If Congress orders the Sergeant at Arms to arrest Miers, the White House will use the SS or some such to prevent arrest, and will claim that Congress is overstepping its Constitutional boundaries. Conceivably Bush could use Congress's "usurpation" to declare martial law.
Does that sound about right to you?

[Marky]

Needless to say, impeachment is forced as soon as Bush brushes of inherent contempt charges.

[Looking_for_a_way_Out]

Crap, I fed the troll. Sorry. I love reading this site. Lots of good info. All the contributors do good things. Keep it up.

I hope the President can't pardon Inherent Contempt. It just seems like it would be directly interfering with Congressional Oversight. But IANAL.

[Dismayed]

Other Tom Troll the blow hard -
Other Tom Troll the blow hard -
Keeps his head stuck in the sand yard -
below his big ass of lard -

Ha, ha, ha - that's it.

[Marky]

i'm not entirely joking about martial law, btw.
If there's any lesson to be learned from Bush's first 6 years, its that he doesn't seem to have any boundaries at all. Whatever it takes to hold on to power is what he will do. Democrats need to be prepared for some of the more spectacular possibilities.

[Kagro X]

Barring an arrest under inherent contempt would probably put you pretty squarely in impeachment territory. If we found ourselves under martial law as a result, well, you'd finally have your answer about whether or not "it" can happen here.

I assume, though, that the Sergeant at Arms would wait for Miers to leave the White House. Having Bush harbor her there while the cops wait outside to arrest her isn't such a bad thing, really.

[P J Evans]

Well, as someone said over at Talking Points, Bush is now in obstruction territory for telling Miers not to appear. Federal felony obstruction. Impeachable. Or would be impeachable, if the Democrats in Congress actually paid attention to what's going on instead of playing by the rules of the GOP.

Conyers should have told Reid that he wasn't up to the job. (Or that the Republicans know where his bodies are buried.)

[earlofhuntingdon]

I can imagine Bush on the way out the door in January '09 pardoning his entire staff. To keep his own backside out of jail, to show that he takes care of his own, and because he can. That would remove, however, their right to take the Fifth, and lying about forgetting, if proveable, is perjury. So even Shrub's doing that might not be the end of the story.

This has been raised before, but I think that Bush's corruption reaches so deeply, that the next administration really needs to set up a Truth and Reconciliation Commission.

The magic in any federal commission, of course, is properly delineating the scope of its work, appointing the right commissioners, and sorting out a proper staff and budget. Frankly, getting Congress to vote the budget is my only worry; there are so many top professionals hounded out of office by these guys that the only hard part about staffing it would be turning down so many qualified people.

Apart from being a clearing house for criminal allegations and select investigations, such a commission might also be used as a clearinghouse for other things, such as a way to identify and reinstate the no doubt thousands of valuable bureaucrats whom this administration has hounded out of their jobs precisely because they wanted to do their jobs.

[gbreez]

Thanks, Kagro X. Really super work. Feather Blessings.

[Marky]

Seems like impeachment is being forced, and rather quickly.
I wonder if the White House thinks Congress won't do it, or if they are confident Bush won't be impeached. Neither seems a correct assessment to me, given the direction of current events.

[jcricket's boy toy]

John Dean brought this up in an interview with Randi Rhoades this evening. There was a case in the 1930's....and yes the sergeant at arms would conceivably place frau blucher under arrest...it probably is a pipedream but Fielding is playing hardball for bigger crooks than nixon and the Dems are going to have play a lot harder.

[Looking_for_a_way_Out]

What is Martial Law and can it simply be declared by the President? I am not a constitutional scholar by any means but I don't remember it as something the President can simply declare. I know he can't Dissolve Congress like other dictators in Banana Republics.

[Marky]

Looking,
Bush thinks this is a Banana republic.
He will assert authority he doesn't have. At some point it may come down to a question of whether the armed forces will accept his orders as "commander in chief".
Remember, he tried to weaken the comme possitatus restrictions a while back.

[P J Evans]

mark @ 00:14
comme possitatus

I do believe that you mean posse comitatus.
Not quite close enough for a cigar, but close enough to figure out.

[Rick B]

Let's assume that Bush does Pardon a Congressional finding of Contempt of Congress. Can he do so prospectively? That is, If Miers refuses to obey a subpoena and is declared in contempt, then Bush pardons her for it, could not the Congress simply issue a new subpoena and again declare her in contempt on the new charge? Surely the President does not have the power to issue a prospective Pardon, in effect immunizing his minions from ever facing charges of Congressional contempt? If he did, he could simply provide a blanket pardon to every White House employee against Congressional contempt charges at the time they are hired.

The court would not involve itself, declaring it a political issue outside their jurisdiction. Any attempt by the court to intervene would certainly open the court members to impeachment proceedings.

That, of course, would be in addition to the impeachment hearings which would certainly have to be started against Bush for his action. Such a pardon would clearly be defined by Congress as a "High Crime or Misdemeanor" and the definition of what is a high crime or misdemeanor is without doubt entirely and solely within the Constitutional power of Congress.

Hmmm. Declaring Miers in contempt could actually be an impeachment trap for Bush, couldn't it? Bush is left with the choice between either letting her testify or pardoning her, in which case the pardon sets up a clear impeachable issue. The third option would be for Miers herself to fall on her sword and do a Susan McDougal, I guess, relieving Bush from acting.

I don't know. I am just a layman trying to work this through in my own mind.

Oh, and if anyone decides to use this set of events to write a best-seller along the Allen Drury or James Patterson style, I want at least a mention in the forward. OK?

[Fisher]

Complete fishing expedition. GOP should continue to tell the drooling Conyers to pound sand. You want contempt of Congress? Start with Val Pal.

[Rick B]

Earlofhuntingdon,

In addition to pardoning his staff, I would expect the White House to be shrouded in the smoke from burning the chaff that the shredders leave. Sort of like the signal for the election of a new Pope, but this would signal the end of the previous reign.

I can see the supervisors going around inside the White House now. "Yes. Shred and burn all that. NO! NOT THAT! That's some of the Pardons!"

[Albert Fall]

Miers goes in roughly a year from being a supreme court nominee to contempt of Congress?

Wow.

And clearly, she has no principles or interity whatever, which is why Bush thought she belonged on his kind of judiciary.