Inviting Inherent Contempt
Posted on Fri Jul 20, 2007 at 11:09:55 AM EST
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Via KagroX, WaPo reports:
Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.
The essence of the Bush position is that the federal statute that calls for US Attorneys to enforce congressional subpoenas through contempt proceedings is an unconstitutional violation of the separation of powers. Rather than testing this proposition in court, it appears that Bush will rely on his bald assertion. In such circumstances, the Congress appears to have two options - file a lawsuit through a special counsel (not a special counsel appointed by Justice) to enforce the subpoena or proceed with inherent contempt, a proceeding solely judged by the House or Senate, as opposed to the more traditional contempt proceedings through judicial process.
With Fred Fielding as White House counsel, this postion from the Bush Administration is less surprising, though still shocking, than one imagines, as he asserted the same position in 1982 in the Gorsuch matter, though he filed suit that time:
On December 2, the Administration withheld 64 documents from the subcommittee. . . . By a vote of 9 to 2, a subcommittee of the House Public Works Committeedecided to cite Gorsuch for contempt. The full committee did likewise, after it rejected a Justice Department proposal to give briefings on the contents of the documents. The House of Representatives voted 259 to 105 to support the contempt citation. . . Pursuant to the statutory procedures for contempt citations, the Speaker certified the facts and referred them to the U.S. Attorney for presentation to a grand jury. The Justice Department, anticipating the House vote, moved quickly: “Immediately after the House vote and prior to the delivery of the contempt citation,” the department chose not to prosecute the case. Instead, it asked a district court to declare the House action an unconstitutional intrusion into the President’s authority to withhold information from Congress.
More. And see Marty Lederman, who links to Reagan era Ted Olson opinion that is the basis for the claim today.
In Gorsuch, the Reagan Administration and Fielding relented and turned over the subpoenaed documents after strong admonitions from the court that the matter be settled. In this case, one has to wonder if the Bush Administration would defy a court order. Given that, I have changed my view on this matter and now believe that inherent contempt is likely the preferable form of enforcing the Congressional subpoenas that Bush is defying.
For both political and practical reasons it seems to me that the Bush statement is so sweeping that inherent contempt will be a very viable and effective road for the House to take. (The Senate is another matter, because of the filibuster and the Godot Republicans issue).
The Bush view is extreme and will be portrayed so by the Media. It also signals an obstinance that may render court proceedings moot. The case law also provides clear support for inherent contempt power for the Congress.
Finally, it will be a wonderful opportunity to highlight the lawlessness of the Bush Administration. In effect, Bush has invited inherent contempt proceedings.
I am now a believer in inherent contempt as a remedy for Bush Administration obstructionism.
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