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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.

By Paul Kane  |  July 26, 2007; 5:00 AM ET
Categories:  Branch vs. Branch  
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Where is the Bush Administration getting legal advice from? Is it (is anything) beyond the thinkable that the Executive Branch already knows how the Courts will fall on the issue of Privilege, because some members of the Court are hinting/nudging/cluing them in as which way to go?

Given the apparent (lack of)legal horsepower actually working in the admin., now and in the past 6 years, as well as the consistency of their legal positions and public statements by some Supreme Court members on issues like torture and the Geneva Conventions, it is reasonable to ask if the 3 Branches of Government are actually divided.

Clearly the Executive Branch and elements of the Judicial Branch are ideologically aligned. It would be no big suprise in the current environment to see political alignment (coordination) as well.

Posted by: Big Al | July 26, 2007 8:13 AM | Report abuse

good morning!!! where have you been the last 6 yrs?

more interesting question: is that even unconstitutional? congress and executive communicate all the time ... why not the court?

Posted by: Legal Beagle | July 26, 2007 8:17 AM | Report abuse

Spectre is such a weenie. He will go crawling back to Bushco in a few days, just watch.

Posted by: Mike | July 26, 2007 8:43 AM | Report abuse

If you want to know what has actually transpired in these proceedings, you can read about them for yourselves. Mr. Kane has done a great job explaining the history and conext of this process, but the intricacies are just as important. The transcripts are "Google-able" or you could read an extremely condensed version of the proceedings from Condenser sites like:

Either way, we owe it to ourselves, as the American public, to keep our elected officials accountable. That means those on both sides of these proceedings.

Posted by: Publius | July 26, 2007 10:47 AM | Report abuse

This whole affair, the lies, obfuscations,stupidity,criminality,has me wondering if the congress, the democrats and even the republicans will ever get the cajones to do their job. And going after underlings is not enough. It is time for the repubs to wake up and see that their boy is dragging them into the manure pit with no way out. Wake up for god's sake.

Posted by: Irv | July 26, 2007 1:52 PM | Report abuse

Doesn't Congress have two "ultimate nuclear bomb" powers? Power of the purse, and the power to set Federal Court jurisdiction. What prevents Congress from simply zeroing out the White House or DOJ budget? Let them go without a salary, electricity, support staff, etc., and see how long that contemptuous behavior stays around. Then gut the Federal Court's jurisdiction, and appropriation. See how long Roberts and Scalia stick around when their offices have no electricity or running water, and they have no clerks or support staff.

Posted by: Gasmonkey | July 26, 2007 2:22 PM | Report abuse

It would be pleasing to see that the United States had to focus less on issues like these and actually deal with problems like Global Poverty. Every 3.6 seconds, another person dies of starvation [Borgen Project]. I wish we could have some hand in changing this startling situation.

Posted by: Erica | July 26, 2007 3:53 PM | Report abuse

Congress, please put IMPEACHMENT back on the table!

Posted by: J Yoo | July 26, 2007 8:30 PM | Report abuse

Senator Spector canot be trusted to support any action against this administration. His talk is to appease voters in his home state who are disgusted with this administration, his actions are to appease this administration that could make it difficult for him to get reelected in 2008.

Posted by: oscar2mayer | July 26, 2007 9:31 PM | Report abuse

I can't see how this administration could make it difficult for Arlen Spector to get reelected in 2008. While the suburban areas within his district are still republican dominated although not nearly so much as in the past, Philadelphia is almost a GOP-free zone.
But, to be honest, I think that is beside the point. You can denigrate Spector all you want, but unlike many politicians on both sides of the aisle, and unlike you suggest oscar2mayer, he is a reasonable man who will do what he thinks is right. As one of his constituents, I do trust that he will support any action to protect the constitution, whether that means taking on our kindergarten administration, or not. He will also continue to be the only Republican I have ever voted for.

Posted by: Patrick Huss | July 27, 2007 10:27 AM | Report abuse

These clowns are all incompetent. Let's give them permanent sabbaticals. They could try working for a living instead. This would save billions.

Posted by: Katharine | July 27, 2007 12:19 PM | Report abuse

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Posted by: Robert | July 27, 2007 3:11 PM | Report abuse

The GOP, RNC, subordinate brown shirt organizatiuons, and the Bush misadministration should be cited with contempt of Congress, The Constitution. and The Bill of Rights.

Posted by: ghostcommander | July 27, 2007 5:29 PM | Report abuse


Is there anyone out there that BELIEVES anyone in BOD BUSH'S administration will be held accountable for mis-use of power while he is in POWER. Heaven forbid that a Republican be elected president... because the cover-ups would continue.

The Republicans have to win IF THEY WANT TO MAINTAIN there power base... Otherwise, all of Bush's cronies will be out of a job... UNLESS they are 'placed' into jobs that they CAN NOT BE REMOVED FROM.

This is another case of SPIN and SMOKE AND MIRRORS by those wanting to be re-elected for doing something.

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