Contempt of Congress vs. the Pardon Power

by Kagro X

Today's WaPo runs a piece by Rutgers Univ. law professor (and former Congressional candidate) Frank Askin, on the question of whether contempt of Congress is pardonable.

Given that the Pretzelnit has announced that he's: 1) Basically pardoning spy-outing turncoat Scooter Libby, and; 2) revoking the right of Congress to enforce its subpoena power, it seems this is now a matter for serious consideration. I've speculated on it a bit before, but why not let a law professor tell you?

First, the question of routine, statutory contempt:

It seems that the House Judiciary Committee is considering seeking help from the Justice Department to enforce contempt citations against Bush administration officials such as Joshua Bolten who refuse to respond to congressional inquiries into alleged White House wrongdoing. That would be a mistake.

Such a strategy leaves Congress beholden to hostile executive branch officials to enforce its prerogatives on exactly the type of charges that the administration said this week it would not allow officials to pursue. This strategy also would allow the president to pardon his underlings should they ever be indicted and convicted.

Whoops. Not good. So what do we do?

[U]nder historic and undisturbed law, Congress can enforce its own orders against recalcitrant witnesses without involving the executive branch and without leaving open the possibility of presidential pardon.

But you knew that. Because you read The Next Hurrah.

But did you know this?

[I]n an 1895 case ( United States v. Chapman), the defendant unsuccessfully argued that Congress could not have such cases of contempt prosecuted through the courts but must punish such defiance on its own, without judicial assistance. The U.S. Court of Appeals for the District of Columbia held that judicial enforcement of Congress's inherent power was optional. [Emphasis added.]

Well, that appears to change the game a bit, doesn't it? At least in theory, anyway. In 1895, the Congress hadn't yet passed its statutory contempt provision. And since passing them, only one party has objected outright to its constitutionality. Well, only one party, but twice -- once under the Reagan administration, and once under the George W. Bush "administration." And both times represented by White House counsel Fred Fielding. Imagine that!

But what about those pardons?

The limitation on the president's pardon power was most comprehensively discussed in a 1925 opinion by Chief Justice (and former president) William Howard Taft in the case of Ex Parte Grossman.

Grossman had been accused during Prohibition of the illegal sale of liquor and was enjoined by a federal court from further sale of alcoholic beverages. When he violated the order, he was accused of contempt and sentenced to prison -- and then pardoned by the president.

Despite the pardon, a federal judge in Chicago ordered him to jail on the theory that a charge of criminal contempt was not an "offense against the United States" because it was a judicial act, and a presidential pardon would violate the separation of powers.

In an analysis of the pardon power that Taft traced back through English parliamentary history, the opinion concluded that the power did reach contempts -- but only criminal contempts, the purpose of which is to vindicate offenses against the dignity of public authority.

Thus, the congressional alternative. Instead of referring a contempt citation to the U.S. attorney, a house of Congress can order the sergeant-at-arms to take recalcitrant witnesses into custody and have them held until they agree to cooperate -- i.e., an order of civil contempt. Technically, the witness could be imprisoned somewhere in the bowels of the Capitol, but historically the sergeant-at-arms has turned defendants over to the custody of the warden of the D.C. jail.

So, far from being defenseless against the president's refusal to prosecute or the threat of presidential pardon, Congress could take into its own custody defiant administration officials who refuse to cooperate with legitimate inquiries into executive malfeasance. Those targets would have the right to seek writs of habeas corpus from the federal courts, but as long as Congress could show a legitimate need for the information it was seeking pursuant to its legislative oversight functions, it would be standing on solid legal ground.

Pretty solid, alright. The only wild card here is this: Fred Fielding's chief accomplice in his 1982 gambit claiming that Congress did not have this power, despite all precedent to the contrary?

Now Supreme Court Chief Justice John Roberts. Congress can't afford to wait to settle this. Even if they choose, for whatever reason, to take this to John Roberts' federal courts (against Professor Askin's recommendation and mine), there is no time to wait. Working this out -- or more likely, not working it out -- in court will take months, if not years. And taking the bull by the horns and handling this "in house" requires a deft manipulation of the political momentum game. Don't let the same thing happen to this critical issue as happened to the once "inevitable" resignation/firing of "Attorney General" Alberto Gonzales. We waited and waited for Bush to do the right thing there, and he disappointed us. Which is not by itself a surprise, of course. But think about what has happened to the fever pitch for his ouster since then.

This question absolutely must be en route to a resolution before Congress departs for its August recess. The American people cannot be left guessing how many effective branches of government they actually have while our legislature takes a month-long vacation.

And it should go without saying, but you should call your Representatives about this on Monday. Ten calls is actually about all it takes to raise eyebrows in a Congressional office. Twenty-five is a deluge. A hundred is a damned emergency.

Comments

[Semanticleo]

"criminal contempt was not an "offense against the United States" because it was a judicial act, and a presidential pardon would violate the separation of powers."

Freakin' beuatiful.

Can the SAG be sent to the WH, or do we have to wait until January
to 'cuff em?.

[Semanticleo]

correction; SAG, should be sergeant-at-arms,

[Mimikatz]

Would the DC elite go into as great coniptions about Josh Bolten or one of the DOJ thugs going to a DC jail as they did with Scooter Libby? Hard to scream "criminalizing politics" when it's civil contempt (!)

You are absolutely right that they have to settle on a strategy and begin to execute it befpre they leave. I really think they ought not to go on recess (be role models to the Iraqi Parliament) this August because it is too dangerous to leave Bush/Cheney unsupervised for any length of time and Bush is likely to make recess appointments. There must be a way they can leave a few people in charge and schedule votes every week or so.

[P J Evans]

Sent to Waxman, with the note to consider it my phone call (at least until I get a cell phone that can call out of the building I work in ... mumble #$%^& cellphone provider).

[biggerbox]

Sadly, I fear the movers in Congress are too wrapped up in trying to picture their next chess move, and have yet to fully grasp that Bush has overturned the chessboard. It's time to play by a new, or rather old, set of rules.

Perhaps if someone pointed out the symmetry of having the Sergeant-At-Arms in the Executive Office Building, after having had the FBI in Rep. Jefferson's office?

Ah, to see Josh Bolten spend the August recess cooling his heels in custody.

[JEP]

Investigate NOW, Prosecute in 2009

Don't you suppose there are ten Republican senators who know if they do not support impeachment, they will not get re-elected? And how many more of them already realize their support of Bush's "war" will cost them their chair?

Any Senator still supporting Bush's "war" will become a very threatened species when The People get to vote again. And I would suggest, if you look at the signs, a lot of Senators have already realized it, and are just weighing their bully, Bush era Republican pride against their popular electability.

The longer they take to weigh their obvious and inevitable conclusion against that vain error, the more likely they will bear the weight of Bush's burden at election time.

As for riots in the streets, and all our tinfoil-hats a-tingling lately, I believe, by now, we should have civilized ourselves beyond the need for mob response. We have so little influence on the timelines of this "war", insurrection would never solve that problem.

To be brutally honest, I think we are trapped in the profiteer's calendar, when it comes to the timelines we can demand, and only massive oil concessions from the Iraqis will satiate them.

And, except that we will numbly consume it all, we have no influence over that final oil contract, besides our opinions from afar. It will take another major U.S. election to weigh the balance fully against these lawless rogues, and ironically, that gives them their one way out, and I hope to God they do not even ponder creating any delays to that glorious day, because I do not want to die in the streets, fighting a Revolution my ancestors already won. Those election dates are the only way we can change this mess, and denying us for any reason is tantamount to a declaration of dictatorship.

But I expect that they will take their multi-trillion-dollar redistribution-of-wealth booty off to The Bahamas or Dubai and slobber over it happily. They already got what they wanted, we just have to hope it was enough.

I do hold out hope that some of their more egregious misdeeds (let me count the ways) will be put under the spotlight of unrestricted justice, soon after their Grand Protector, (that High Crimes addict,) has lost his pardon powers, which he fully intends to profane. Andy work we do before then should be purely for the purpose of thorough investigation. And no doubt, a Cheney Impeachment would provide the perfect privilege-free environment for it.

But we must wait until the next president to actually lay charges against the criminals, because by convicting them before Bush is gone, we give them a get-out-of-jail-free card. However, we can use this time, and the Democratic Party gavel, to gather in "The Truth" that has not been deleted or destoryed.

One last note; if something should happen that threatens those election deadlines we have come to trust, then I will rejoin you all in the streets, and we can start the civilized thing up again, immediately after they give us our elections back.

[P J Evans]

sent to Conyers, at his House address, because HJC's e-mail is down this morning. (It's giving a 'to see this error message, you have to do all this other stuff' kind of message, so it's something wrong in their system.)

If this doesn't work, it won't be because we're not trying.

[orionATL]

KX

you have written a substantial number of columns that have given me history and law that i knew nothing about previously.

i can't thanks you enough for taking the time to research and then lay this out this info in the last couple or three months.

on john roberts:

my strong suspicion is that john roberts is a republican political operative first

and a united states supreme court justice second - a distant second.

just as the improperly sainted alan greenspan always appeared to be a wise man with the nation's interest at heart - unless, of course, that interest conflicted with a republican president's or party's needs and well-being.

ditto for roberts' predecessor, rhenquist.

by "operative" i mean just that,

these men worked in, with, and for the republican party in their young careers

i'm not certain of this but i can hope and expect that there will be some major legislative realignment of executive and judicial power vis-vis the legislature beginning in 2009.

at the moment though i think the actions that need to be taken are those you have outlined.

-congress MUST take the initiative.

- it must not expect other branches of govt to do its work for it in this case.

as for the nation having waited waiting for gonzales to resign, i did not spend time waiting. i predicted very early on that that would never happen - who else could bush afford to have in the job at this time?

and now we see just how critical to bush's future gonzales at doj is.

[masaccio]

So, suppose the House seizes John Bolten and locks him up in the DC jail. The White House has to file something to get him out. Who files it? Does the Justice Department take sides in this political fight? Does Bolten have to get his own lawyer to file the Habeas Corpus litigation?

If Justice does it, who exactly is their client? Justice doesn't represent the President, nor does it represent Bolten. They will have to craft some kind of assertion that it is the Executive Branch that is their client, and they are vindicating the assertion of privilege by that Branch. That puts them in the position of defending the Executive against the Legislative. So who represents the Legislature? Do they have to get their own lawyers? How?

As to the Courts, this has to present a political question which is another hurdle for them.

Meanwhile, Bolten sits in the DC jail. No wonder these things usually settle. And my gut tells me that the Congress has the upper hand.

[Neil]

Who could be held in contempt for refusing to respond to a congressional subpeona to testify beside Harriet Miers?

[cboldt]

Statutory contempt is the one less often used -- sometimes referred to as "criminal contempt."

Ordinary contempt is the "inherent" kind that judges use to compel testimony. Bush could not have pardoned Miller out of jail for her refusal to testify before a grand jury, for example.

And as with Miller, if Congress uses its inherent power of contempt, the contemnor holds the keys to his own cell.

But Congress isn't going to use inherent contempt in this case. It will seek a court order.

[orionATL]

i wouldn't go with the d.c. jail.

i's suggest the oubliette be on the grounds of the congress.

let the (house) sergeant-at-arms detain taylor, or meirs, or bolten, or,

most deserved of all, fred feilding

and put them in a congressional dungeon.

then it's the president who is on the defensive.

i would be most interested to see whether police or federal marshall's would invade congressional territory.

i'd like to see the claim made that congressional territory is like an embassy or the vatican.

besides, it's easier to transport a detainee in an elevator than in an suv with armed guards.

i's also like to see the federal judiciary forced into a position of having to respond

by defying the congress and supporting the president.

[green heron]

I vote for Rove. Enforce a subpoena against him, and if he fails to appear, lock him up. He's a decidedly unsympathetic figure. And he's butt ugly.

[celeb]

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[telegu]

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[P.S. Ruckman, Jr.]

Clearly the person consulted was not an expert on pardons. Indeed, one of the more famous pardons in American History (in the minds of those who are literate on the topic) involved contempt of Congress. The individual was one of the most famous persons alive at the time of the pardon. His name was Francis Townsend. Likewise, the logic of the piece is destroyed by the fact that presidents have also granted pardons for contempt of court. Other than those fatal errors, it is fun reading. http://pardonpower.com