Dusting off "Inherent Contempt"

by Kagro X Yesterday, we discussed the fact that the standard, statutory contempt of Congress procedure was probably inadequate to the task of enforcing the Democratic Congress' hard-won subpoena power:

The last time the Congress actually voted to hold an executive branch official in contempt of Congress was in the 1982 case of EPA Administrator Anne Gorsuch Burford. Gorsuch (who was later remarried, to Bureau of Land Management head Robert Burford) was found in contempt by a House vote of 259-105 (with 55 Republicans voting in favor). The charges were, in keeping with practice in statutory contempt cases, referred to the U.S. Attorney for the District of Columbia for prosecution.

And a lightbulb switches on! The actual prosecution of contempt of Congress charges is the responsibility of a U.S. Attorney.

What an extraordinary piece of bad luck, given the current situation!

A few astute commenters observed that Congress has another weapon in its arsenal for backing up the subpoena power: the long-dormant "inherent contempt" process, described below in the Congressional Research Service's "Congressional Oversight Manual" (PDF):

Under the inherent contempt power, the individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned. The purpose of the imprisonment or other sanction may be either punitive or coercive. Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least in the case of the House, beyond the adjournment of a session of the Congress) until he agrees to comply. The inherent contempt power has been recognized by the Supreme Court as inextricably related to Congress’s constitutionally-based power to investigate.

The most obvious benefit of inherent contempt is that it's conducted entirely "in-house," that is, entirely on the authority of the legislative branch. The most obvious drawback? Spending time on a trial. Well, that and the scene of having the Sergeant at Arms and the Capitol Police physically barred from entering the White House to arrest those who've defied subpoenas.

But is there another choice? What other power, besides impeachment, does the Congress have in its arsenal to enforce the "subpoena power" we were all told this election was about? There are no other direct options, only oblique approaches to using indirect leverage.

The next question, then, is whether or not anybody in Congress has bothered to think things through to this point, and begin preparing for this possibility. And here, I finally have some good news.

Rep. Brad Miller of North Carolina, in his capacity as chairman of the Science committee's Investigations and Oversight panel, has encountered the same sort of intransigence from the Bush "administration" that is threatened over the investigation into the U.S. Attorney firings. Only in the case of his investigation, involving the Department of Education, the "administration" hasn't even really done him the courtesy of making up an excuse for why they're not providing the requested documents. They're just not doing it.

So as Rep. Miller has become increasingly pessimistic about the chances that the "administration" will relent in his case, he's been consulting the same Congressional Oversight Manual, and was dismayed to learn that the enforcement options are indeed quite limited. Inherent contempt, he's discovered, is perhaps the only way Congress will be able to enforce its subpoena power with this "administration," and he's been talking with CRS experts to explore how a modern inherent contempt procedure might be established. Even better, he's been sharing that information with Rep. Linda Sanchez, chair of the Judiciary committee's Commercial and Administrative Law panel that's handling the subpoenas in the U.S. Attorneys matter.

Unfortunately, the current thinking among most Members of Congress is that the subpoena showdown will be settled in court. But as we discussed yesterday, that's highly unlikely. Rather, it seems most probably that the courts will dismiss such a case under the "political question doctrine," as they did in the Burford case in 1982.

Is there a stronger and more direct signal to send to the White House that the Congress is serious about its oversight authority than the one that would come from the House taking the time to dust off the inherent contempt concept, and establish a modern procedure for it? If so, I can't think of it.

At the very least, it's going to pay to be prepared sooner rather than later. Once those subpoenas are issued, it won't be long before we know precisely what the White House plans to do when the chips are down. And if we're sitting around looking at one another when the White House signals its final defiance, we're likely to lose a lot of momentum.

Let's face it: if the "administration" simply refuses to budge, the Congress either has to fold its tent and go home, or enforce on its own authority the subpoena power the American people voted for. Given that we've reached this impasse -- and we knew it was coming -- over an investigation into the hyper-partisan and hyper-politicized nature of the U.S. Attorneys, inherent contempt proceedings would appear to be the first and most direct resort of Congress in enforcing its mandate.

It would also appear to be the last stop short of impeachment. And with that remedy currently "off the table," Congress needs to speak -- and speak soon -- about how it intends to protect its prerogatives.

Comments

[OrionATL]

kx

thanks for two very informative posts.

damn! i didn't realize congress was so handicapped in it's enforcement options, or the sanctions it has available to it so weak.

two remote possibilities come to mind:

- that the courts side strongly with the congress because they perceive this a special instance in which a presidency has acted with contempt both toward a legitimate congressional role and toward the "rule of law".

- at some point people take to the streets in nationwide protests of the administration's actions on iraq, spying, corrupt practices, false public assurances (aka persistent public lying), etc.

i doubt either of these is likely, but who knows.

at some point there certainly will have to be a political decision about any stalemate between congress and the president,

but that does not mean we have to wait until the 2008 election.

marches and demonstrations are political action too.

and were these to take place, you can bet the bush admin would overplay it's hand in its treatment of demonstrators, thereby self-illustrating its authoritarianism to a watching public.

[Mickey]

"Under the inherent contempt power, the individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned. The purpose of the imprisonment or other sanction may be either punitive or coercive... The inherent contempt power has been recognized by the Supreme Court as inextricably related to Congress’s constitutionally-based power to investigate."

Perfect! ...and perfect timing. Can they fit it in next week?

[Dismayed]

So the jail under the house has not toilets? Just crock pots? I think having a construction crew show up to install plumbing down there would send a great message. Just makes me squirm in evil laughter to think about it.

[Dismayed]

And lets add a few cells while we're at it!

[Sara]

Yes, the ones I saw had Chamber Pots that could be removed from the cell through a little flip door. It was quite dainty actually. They also had a small table for eating and outside shelves held wash bowls and pitchers for wash-up. There were two cells, each with a narrow iron cot. When I saw them in the early 1960's, they were a kind of artifact of the past, and I was told by the guide they were Civil War era stuff.

So yep, I believe if Speaker Nancy allowed for a little contract for running water and flush toilets, it might have an impact. She might even ask the House Historian to look up a list of former inmates, and design a little plaque memorializing the reasons for past use. She might even ask Halliburton, that among other things constructs cells, for a catalogue of their various models and some cost estimates. She probably needs to ask the Capitol Architect for the specifications of the closest sewer connections. The place was very dungeon like -- so perhaps some fencing for an emergency exercise yard, with emphasis on appropriate privacy. And she might price and put in an order for Orange Jumpsuits.

Perhaps some DC based blogger could connect up with a House Staffer and see if we could acquire some pictures of the House Jail as it exists today. It could be that in various renovations since the early 1960's have eliminated these, or changed their use -- but tracking it down would be useful information. The fact that Congress once had its own jail for those found in contempt of congress just might be useful information as we debate these things.

[J-Ro]

I for one am all for impeachment. Though this isn't the battle I might choose, I'd love to see Gonzales go down instead of resign. What are the chances, you think?

[hauksdottir]

Ms Pelosi doesn't have to ask Halliburton for a catalogue... I'd bet that Cheney and Rove both have spies assigned to watch her staff, read her mail, and copy her appointment book. If she meets with the Capitol Architect and s/he is carrying the plans for the basement, word will get out. An unsolicited bid will be prepared... any opportunity for profit, you know.

The provisions of those cells make Judy Miller's thin mattress seem luxurious, don't they? :)

If this was an investigation into the detention, rendition, torture, etc., issues promoted by this Administration, I'd suggest leaving the cells the way they are... possibly adding bright lights, cold water from the ceiling, and a sound system playing Turkey in the Straw or one of those jingles that you can never get out of your mind. However appropriate for Yoo, Addington and Gonzales, that would be cruel to whomever has to watch the prisoners.

There may not be time to fully modernize the facilities, but it may not matter. A week of having to ask permission to use the bathroom, getting escorted to the shower, and eating cold MREs ought to convince anybody (except delusional druggies such as Bush) that Congress is serious. Once a couple of key staffers disappear into the oubliette, the others may be more than willing to provide testimony.

The biggest pity is that the only rats in the dungeon will be the prisoners themselves. sigh

[the golux]

I am not a lawyer, but the inherent contempt power might be one of the only recourses the Congress has with this administration. But let's not forget that the sergeant-at-arms can enforce subpoenas, too: he can go arrest people and bring them in to testify. Once people start getting rounded up and brought to the capitol, it may be that more will choose to testify voluntarily.

They could start small. Bring in a few secret service agents and ask them about Jeff Gannon and his comings (ahem) and goings. Bring in Abramoff and Ney and Cunningham and ask them some questions under oath that you can bet the Justice Department doesn't want answered. They don't have much to lose at this point. Bring in Scooter Libby--he's probably going to be a little shy about lying under oath again. Ask him what he knows about Cheney's influence in getting Mitchell Wade the contract to screen White House mail, among other things. Bring in Cathie Martin. Ask her about email addresses and RNC email accounts and whether she destroyed email for Karl.

Once you have the information from the little fish, the big fish are easier to hook.

There is also the power of the purse. They can cut off funding for the EOP and the EOVP until they get cooperation. That would take some time, because they have already budgeted monies for those offices, but in time the EOP will run out of money. Or cut off funding for the DOJ.

And they can sit tight after Bush vetos the emergency supplemental. Let him explain why he cut off funding to the troops. Don't begin debating another supplemental until they get cooperation.

The executive branch is in the business of spending money. And the Bush Administration uses its spending to reward its friends in ways that are unprecedented. Many of these friends--crooks and thugs, actually--would be less friendly if they didn't have the income from the kleptocrats in the White House. The Congress has the power to turn off the spigot.

[Sara]

Watch out what you ask for. Congress is strictly limited in using the subpoena or contempt power to get testimony to information that will inform their legislative deliberations. If the target is information necessary to oversight of DOJ, or legislation about the operations of DOJ -- you are on safe ground. When you spin off into Gannon or other such critters or issues, you step out of the realm of what Congress can affirmatively legislate. So Rove, Goodling and Harriet Meirs -- probably OK, but things not about DOJ, out of line.

Environmental matters -- for Music a strict limitation to Patriotic Music. Souza Marches, various arrangements of the National Anthem -- I would particularly recommend some of the wierd versions offered up at ball parks, The National Archives has some nice collections --tapes of Union and Confederate vets (most of them were in their 80's) singing their own military songs when they were collected in the 1930's, And up till recent years, the party campaign songs were important -- essentially the platform set to music. Since FDR ran four times, the mix would include a "Happy Days are Hear Again" in rotation about every 4 songs. As to reading material -- they ought to be restricted to a copy of the constitution and all and any majority and minority Supreme Court Decisions related to their contempt. It ought to be run more or less along the lines of a re-education camp. Bibles probably OK, but somewhat limited availability. TV? probably not.

[the golux]

Okay. I see that the scope must be limited. But it's all one big scandal. All the moving parts are connected.

In the past, we've seen administrations which enriched their friends and punished their enemies. But we've never seen an administration in which THE ONLY things they did were enrich their friends and punish their enemies. We have never before seen an administration that had no actual interest in governance and made no concessions to the rule of law.

Wherever investigators start chipping away at the edifice of lies, they will find this corruption and rot. If a Republican Congress can investigate the White House travel office with a straight face, then a Democratic Congress can investigate gay hookers posing as reporters gaining entrance to the White House at all hours of the day and night. Can Congress legislate against gay hookers in the White House? I don't know. Can they legislate against firing the people in the travel office?

[orionATL]

commenters:

this is a fun post to read.

remodeling the old oubliette

and advertising the fact -

not a bad strategy.

[Jodi]

Hi folks.

I thought I would look in and see how the "I don't recall" refrain the Republicans are singing was going down.

It is a new world, where people are more interested in not making a record of definite statements that someone else might challenge, than speaking frankly and honestly as to the issues, because someone might dispute what they said and they end up in court. Welcome to the post-Libby world Fitzgerald has wrought.

As for your ideas above, I would say that some have been hitting the bong.

I said it before and here it is again. The Democrats need to be making a record of "governing" like DemFromCT likes to say, and passing legistation that the major section of America wants. Not just what the Union Shop Stewards and the Feminists are demanding.

I ask you what would an ERA give us today that we don't already have?

Unisex bathrooms, equal participation in the draft when the next war comes?

And this I heard from a higher up where I work that has the proverbial "in." President Bush may veto the legistation with the time frames, and benchmarks, or he may make another famous "signing statement" OR he may just let it become law without signing it and then at the appointed time utilize the power he has as "Commander in Chief" to do what he wants with the military in Iraq. e.g. "New events have altered the situation, and I must do what I need to do to protect America's future!"

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