A Contempt Explainer
At 12:14 p.m. ET Wednesday, House Judiciary Committee Chairman John Conyers (D-Mich.) called out that the report was "agreed to," announcing the panel's formal approval a contempt-of-Congress citation against two senior White House officials.
Thus began a complicated process that now requires House Speaker Nancy Pelosi (D-Calif.) to make the next call -- scheduling a floor vote for the full House to approve the move, which cite the White House for refusing to turn over documents relating to the ongoing investigation of the U.S. attorney firings last year. In addition, former White House counsel Harriet Miers was held in contempt for refusing to testify about her role in the firings.
The Congressional Research Service on Tuesday published a 68-page report illustrating more than 200 years of contempt efforts on Capitol Hill. (The document comes to us via the Federation of American Scientists's Secrecy News blog.)
Capitol Briefing will, in the next few hundred words, try to sum up those 68 pages.
As the CRS report notes, there are three ways Congress can to hold someone in contempt:
The first avenue, being pursued by the Judiciary Committee, is criminal contempt. If the full House votes to approve the committee's contempt citation, the next key decision would fall to the U.S. Attorney for the District of Columbia, Jeffrey A. Taylor -- "whose duty it shall be to bring the matter before the grand jury for its action," according to federal law. (That's 2 USC, 192 and 194, for those examining criminal law statutes.)
This language seems to make a grand jury a done deal if the full House approves the contempt citation (which, by the way, is punishable by up to a year in prison and a $100,000 fine). But some legal observers believe there's nothing that compels Taylor to actually bring an indictment; the law states merely that he "shall" convene a grand jury, not necessarily bring indictments or even consider evidence.
Citing a Justice Department ruling dating back to the early 1980s, the White House has said no U.S. attorney would open a grand jury investigation because the Justice Department has determined that, under a claim of executive privilege, no contempt charges will be filed against anyone in the White House. Essentially, since Justice has determined that the privilege claim is legitimate, any U.S. attorney who pursued such a claim would be violating departmental policy.
If the House passes the contempt charges, some Democrats and liberal activists may call for Taylor to recuse himself from the case, since he is a tangential player in this scandal. He was considered in early 2006 as a replacement for an about-to-fired U.S. attorney (Carol Lam of San Diego) under a provision that gave Attorney General Alberto Gonzales the power to appoint indefinite interim federal prosecutors without Senate confirmation. (That power was revoked this year once the scandal blew up, and Taylor was never put up for the San Diego prosecutor's job.)
Sen. Arlen Specter (R-Pa.), without mentioning Taylor or any conflict of interest, floated the idea Tuesday of asking for a special prosecutor to be appointed to examine the contempt proceeding.
Another option for Congress is to pursue civil contempt charges, something that only the Senate has the power to enforce under the Ethics in Government Act of 1978. But this avenue has limitations for Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.). The law gave the Senate and its committees the ability to appeal to federal courts to enforce a subpoena, "whether or not to aid Congress in enforcing the subpoena," according to the House-Senate conference report that created civil contempt. If the court upholds the subpoena, the person refusing to honor its request must do so or face sanctions from the court. Of course, under this procedure, the federal judge would technically be holding the potential witness in contempt "of court," not Congress.
Leahy faces still more problems with civil contempt. When the law was being drafted in the mid-1970s, a Justice Department official named Antonin Scalia (yes, THAT Scalia) argued that such a power should not apply to federal employees caught in a showdown between the executive and legislative branches. Congress yielded to Scalia's thinking and exempted executive branch employees who had been instructed by the president not to testify before Congress -- precisely the situation involving Miers and former White House political director Sara M. Taylor. Civil contempt has been sought a half dozen times since its inception in 1979, but never against a federal employee.
That brings in a third option -- inherent contempt. Between 1795 and 1857, this technique was used in the House and Senate 14 different times, successfully compelling compliance on at least eight occasions.
Either chamber can act as its own judicial system, calling for its sergeant-at-arms to arrest a witness and bring the person before the body. "Inherent contempt has the distinction of not requiring the cooperation or assistance of either the executive or judicial branches," write Morton Rosenberg and Todd B. Tatleman of CRS.
In 1836, back when reporters were allowed on the House floor, reporter Henry Wheeler beat up another reporter inside the chamber, prompting the House to convene a special committee to consider the Wheeler assault. He was found guilty by the whole House and forbidden from setting foot on the House floor for the remainder of the year.
Such a proceeding could be used against Miers and White House Chief of Staff Joshua Bolten, with both being tried either by the full House or, possibly, by a committee (more than likely Judiciary in this case, though the CRS experts note that a select committee could be appointed). Miers and Bolten would be allowed legal representation in a setting similar to impeachment hearings. Ultimately, the whole House could vote to mete out punishment, such as imprisonment in the Capitol or fines. (Imprisonment, however, cannot last longer than the current congressional session.)
Democrats have shown no appetite for considering such a process. As Rosenberg and Tatleman noted about earlier inherent contempt battles, "It became too cumbersome and time consuming to try contemptuous behavior on the floor."
To date, the only person who has openly talked about convening such a proceeding is a Republican -- Sen. Specter. "We also have the alternative of convening the Senate and having a contempt citation and trying it in the Senate. That might be productive," Specter said Tuesday.
But citing obscure legal rules is nothing new for Specter, who voted "not proven" in the 1999 Clinton impeachment trial, refusing to vote guilty or not guilty and citing Scottish law to back up his unique vote.
Posted by: Big Al | July 26, 2007 8:13 AM | Report abuse
Posted by: Legal Beagle | July 26, 2007 8:17 AM | Report abuse
Posted by: Mike | July 26, 2007 8:43 AM | Report abuse
Posted by: Publius | July 26, 2007 10:47 AM | Report abuse
Posted by: Irv | July 26, 2007 1:52 PM | Report abuse
Posted by: Gasmonkey | July 26, 2007 2:22 PM | Report abuse
Posted by: Erica | July 26, 2007 3:53 PM | Report abuse
Posted by: J Yoo | July 26, 2007 8:30 PM | Report abuse
Posted by: oscar2mayer | July 26, 2007 9:31 PM | Report abuse
Posted by: Patrick Huss | July 27, 2007 10:27 AM | Report abuse
Posted by: Katharine | July 27, 2007 12:19 PM | Report abuse
Posted by: Robert | July 27, 2007 3:11 PM | Report abuse
Posted by: ghostcommander | July 27, 2007 5:29 PM | Report abuse
Posted by: Bob | July 30, 2007 9:59 AM | Report abuse
Posted by: ydhzieijdc | August 26, 2007 12:59 PM | Report abuse
The comments to this entry are closed.