Inviting Inherent Contempt

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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    Hmm (none / 0) (#1)
    by andgarden on Fri Jul 20, 2007 at 11:16:40 AM EST
    Inherent contempt is really icky, I still think. Perhaps we ought to bring back the independent counsel.

    Very icky (none / 0) (#2)
    by Big Tent Democrat on Fri Jul 20, 2007 at 11:19:56 AM EST
    But the Bush Administration has invited it and in essence signalled they won;t abide by court decision.

    In Gursuch Fielding went to court. This time he did not.

    That is the justification for inherent contempt.

    I expected a court challenge or, at least waiting till the Congress went to courtbefore this was asserted.

    This premptive strike is a signal that Bush will bend to no branch on this.

    Inherent contempt is now justified.


    I missed the (none / 0) (#3)
    by andgarden on Fri Jul 20, 2007 at 11:35:14 AM EST
    "we won't respect the court" part. My only reaction is "THEY CAN'T DO THAT!" Frankly, I think this ought to go to the SC. Inherent Contempt is Pandora's Box.

    The Box was openend December 11, 2000 (none / 0) (#6)
    by Molly Bloom on Fri Jul 20, 2007 at 12:24:48 PM EST
    Thanks to the felonious five. It was just a matter of time before we got here.


    Welcome to the club (none / 0) (#4)
    by Maryb2004 on Fri Jul 20, 2007 at 12:02:09 PM EST
    It's a congressional power, it should be exercised rarely but when needed.  

    My only concern has been that the lack of shame in this administration will cause the House to have to resort to multiple inherent contempt proceedings because it will potentially have to enforce each and every subpoena it issues using this power.   I think there is political risk in that (although it could also be poltically favorable -- it depends on which party has the better PR on this.)

    But given today's statement I think there is no choice.  If he is going to dare Congress to act, Congress needs to act.  And if they have to act each time, so be it.

    This was key for me (none / 0) (#5)
    by Big Tent Democrat on Fri Jul 20, 2007 at 12:23:43 PM EST
    [G]iven today's statement I think there is no choice.  If he is going to dare Congress to act, Congress needs to act.  And if they have to act each time, so be it.

    This from Olson's opinion:

    The President, through a United States Attorney, need not, indeed may not, prosecute criminally a subordinate for asserting on his behalf a claim of executive privilege. Nor could the Legislative Branch or the courts require or implement the prosecution of such an individual."

    is the clincher. Defying the courts is in the cards.

    So let's cut to the chase. I really do not like the idea of inherent contempt, but in the face of unprecedented contempt, it seems the only way.

    OF course it has the virtue of being imposable by the House. the Senate would face a filibuster.


    Didn't Know (none / 0) (#7)
    by squeaky on Fri Jul 20, 2007 at 12:37:54 PM EST
    That you were against inherent contempt. It is the next logical step for blowing off subpoenas. They have been warned by Waxman and Leahy that if they disregard oversight they would be in contempt of Congress. I don't remember you saying that was foolish. Impeachment yes, but contempt no.

    Am I missing something here?


    Inherent contempt (5.00 / 1) (#9)
    by Big Tent Democrat on Fri Jul 20, 2007 at 12:44:58 PM EST
    is a spoecific proceeding conducted solely by the House or Seante where it is prosecutor judge and enforcer, through the Sargeant at Arms, of the penalty. imprisonment.

    Thanks BTD (none / 0) (#12)
    by squeaky on Fri Jul 20, 2007 at 01:03:37 PM EST
    I read over the links and am a bit clearer now on the distinctions. One question though, if the house rules inherent contempt does the Senate have any say, or is the house decision final and binding?

    My understanding is (none / 0) (#13)
    by Big Tent Democrat on Fri Jul 20, 2007 at 01:07:10 PM EST
    each House manages its own business.

    I was for crimial contempt (none / 0) (#8)
    by Big Tent Democrat on Fri Jul 20, 2007 at 12:42:26 PM EST
    via a special House counsel, not the US Attorney.

    But since Olson and the Bush Admionistration say the court does not bbind them on this, then inherent contempt is merited now.


    Yes, it is necessary (none / 0) (#14)
    by Maryb2004 on Fri Jul 20, 2007 at 01:07:24 PM EST
    The thing is, though, it isn't as if Fred Fielding hasn't known about inherent contempt all along.  It isn't a super secret weapon that Congress is going to pull out of its back pocket and say "Aha!".  He's known about it and imo he's planned for it.  But how?

    Jailing The Seargent at Arms First? (5.00 / 1) (#15)
    by squeaky on Fri Jul 20, 2007 at 01:12:04 PM EST
    He could be named an enemy combatant.

    I've been saying it for years - one cannot be too (none / 0) (#10)
    by scribe on Fri Jul 20, 2007 at 12:48:04 PM EST
    cynical or vile when thinking through the alternatives this Admin will choose.  They inevitably will choose the most egregious one.

    My only concern has been that the lack of shame in this administration will cause the House to have to resort to multiple inherent contempt proceedings because it will potentially have to enforce each and every subpoena it issues using this power.

    The basement of the Capitol is pretty big - plenty of room for lots of cells down there.  They could even take the old Supreme Court courtroom (betch didn't know they used to meet and hear cases in the basement of the Capitol!) and use it to try these twirps.

    IIRC - the Congress is not limited in terms of sentencing for inherent contempt.  Might as well give them 20 years each.


    typing with thumbs again (none / 0) (#11)
    by scribe on Fri Jul 20, 2007 at 12:49:10 PM EST
    (betch didn't know they used to meet and hear cases in the basement of the Capitol!)

    should read

    (betcha you didn't know they used to meet and hear cases in the basement of the Capitol!)


    The question is (none / 0) (#16)
    by Maryb2004 on Fri Jul 20, 2007 at 01:18:44 PM EST
    whether having a basement full of administration and former administration officials eventually leads to that "ick" factor that andgarden feels?  It's a fine line that has to be walked when a legisture starts considering locking people up.  

    What's so "icky" about it? (none / 0) (#33)
    by NealB on Sat Jul 21, 2007 at 08:42:26 AM EST
    Why shouldn't BushCo lawbreakers be locked up? It would be refreshing to see Congress take control. If any branch of government should have an upper hand in a democracy, it should be the legislative branch.

    And it's not like BushCo doesn't have a reasonable, lawful choice in this. All they need to do is comply with the subpoenas and account for their actions in the Congress is investigating. Clinton complied with Congress's requests for documents and tesitimony (to a fault, I believe, but they complied). Reagan complied; so did Nixon. If Bush and Cheney want to keep their crooks out of a jail cell in the basement of the Capitol, all they have to do is obey the law like the rest of us would.


    Icky (none / 0) (#34)
    by squeaky on Sat Jul 21, 2007 at 11:34:43 AM EST
    For the same reason 'enemy combatant' is icky. No trial by one's peers. No checks, just like the exec.  

    Unitary Executive vs. Monarch (none / 0) (#17)
    by swampdog on Fri Jul 20, 2007 at 01:21:38 PM EST
    Could somebody explain if there is any difference between the unitary executive and a monarch?  Is it just taxing authority?

    Comparison with a monarch is weak (none / 0) (#18)
    by chemoelectric on Fri Jul 20, 2007 at 02:45:19 PM EST
    Monarchs have all different kinds and degrees of powers depending on where and when they reign. Bush is claiming and gradually enacting dictatorship.

    I think the House should go straight into inherent contempt proceedings from now on, though I am neither a lawyer nor a legislator and so my opinion may not be worth anything.


    Oh, did you just notice that? (none / 0) (#20)
    by Sumner on Fri Jul 20, 2007 at 03:01:15 PM EST
    Once impeachment becomes impossible, as he controls the troops, he becomes virtually a king, (or, more accurately, a dictator).

    Dictator, (L.) - Dicto, speech, writing + ator, the suffix meaning "one who does". A ruler with absolute power and authority, esp. one who exercises it. A person who orders others about and on whose pronouncements are meant to be taken as the final word.


    Try Caudillo (none / 0) (#23)
    by Molly Bloom on Fri Jul 20, 2007 at 05:43:06 PM EST
    Bush is more of Caudillo hiding behind a thin veneer of democracy.

    Think Papa Doc

    or Rafael Leonidas Trujillo

    or General Batista

    or Augusto Pinochet

    or Somoza


    What's wrong with the court option? (none / 0) (#19)
    by kovie on Fri Jul 20, 2007 at 03:00:09 PM EST
    Is the concern that:

    1 - The courts will rule for Bush (which I find hard to believe on the basis of this ludicrous assertion of unconstitutional power by Bush)?

    2 - They will dismiss and refer the matter back to congress and the admininstration to resolve on their own?

    3 - They will rule for congress but that the administration will defy it? And what is congress's recourse at that point? Isn't defiance of a court order grounds for impeachment?

    4 - That it will drag out in the courts too long to make a difference?

    And what about the option of impeaching Gonzo and any replacement AG (and his likely replacement, Trafficant prosecuter Craig S. Morford, named this week as acting deputy AG, is possibly even worse, because unlike Gonzo he's actually prosecuted cases in federal court and knows what he's doing) if they enforce this rediculous EO?

    Also, as I keep repeating ad nauseum, while the current DC USA, Jeff Taylor, is a Gonzo-appointed Bushie, as per S.214 he is due to be replaced by a DC District Court-appointed replacement this fall. Other than firing that replacement, how can the DoJ stop him or her from enforcing congress's subpoenas and citations, if that's what he or she choses to do?

    Difficult proceedings. (none / 0) (#21)
    by Gabriel Malor on Fri Jul 20, 2007 at 04:22:12 PM EST
    Congress possesses inherent investigatory powers including the authority to issue subpoenas, to grant immunity, to interrogate witnesses, and to enforce these powers by contempt. However, contempt proceedings in Congress are not exempt from judicial review.

    Should Congress hold contempt proceedings and rule that the Administration's assertions of executive privilege will not prevent disclosures, the Administration or the individual witnesses can challenge such rulings in court. In other words, this is going to end up in court, anyway. It'll just take longer and be much more dramatic, especially of the Seargent at Arms is asked to arrest an executive official.

    That will bring us right back to the question of whether executive privilege can be asserted against congressional investigations. Historically, the courts have had little opportunity to rule on executive privilege in the context of congressional investigations. In fact, we have only two cases to guide us: Senate Select Committee on Presidential Campaign Activities v. Nixon and United States v. AT&T.

    In Nixon, the executive was allowed to refuse to honor a subpoena by the Senate. The appellate court held that Congress must present a strong showing of need to overcome the privileges of a coordinate branch of government. However, this is probably not determinative in the present case; there, the Senate lost because the House was already in possession of the subpoena'd information.

    The other case, AT&T, did not result in a clear win for either branch of government. The courts (district and DC circuit) refused to "disturb the balance of power between the two branches."

    In short, we have only these to cases to go on in the context of congressional investigations. We know that the courts expect that a balancing will take place between the needs of each branch. We know that the courts prefer alternative methods of resolution like ordering "negotiation" between the branches. The Supreme Court has never reached the issue, and thus we have no clear indication of what will happen this time.

    This is a very strange comment (none / 0) (#22)
    by Big Tent Democrat on Fri Jul 20, 2007 at 05:11:35 PM EST
    Are you saying that it is being argued that executive privilege can not be asserted in Congressional proceedings? I have never heard such a thing.

    The issue Fielding raises is is it subject to judicial review. He says no.

    The Congress' power to have inherent contempt proceedings has been accepted by the Court. I think it is a terrible procedure.

    I believe the courts should decide exclusively such questions. Fielding says the courts have no power to decide such questions when it is a Congressional subpoena.

    Thus, my title, inviting inherent contempt.

    How caqn Fielding then rush to court asking for them to decide the question?


    My earlier post (none / 0) (#24)
    by Gabriel Malor on Fri Jul 20, 2007 at 06:03:35 PM EST
    Sorry. Didn't mean to be confusing. It's like this:

    If Congress wants to hold someone in contempt, they can do a couple of things:

    (1) Certify a contempt citation and deliver it to the Attorney General. The AG then has a duty to present the contempt citation (and all the facts supporting it) to a grand jury in order to get an indictment for contempt of Congress.

    This is the "modern" method that Congress has used to lay contempt charges on reluctant witnesses. A contempt indictment then goes through the normal judicial process.

    (2) Hold congressional contempt proceedings. These are quasi-judicial proceedings in which the members of Congress themselves act as judges, juries, and prosecutors.  

    It is very important to note that this is not a judicial process. The chamber of Congress in question has the power to direct the Sergeant at Arms to arrest someone, bring them before the chamber, and put them in jail, all without seeing the inside of a courtroom.

    See McGrain v. Daugherty, for an early example of this, upheld by the Supreme Court. The Court held that such powers were "necessary and proper" for Congress to carry out its legislative function.

    This is the "historical" method by which Congress has enforced its subpoenas. The House Committee on UnAmerican Activities used that method. It was during this time that the method fell out of favor. But it still exists. And this is the souce of what you call the "inherent contempt" proceeding.

    What I was talking about earlier is the fact that the courts retain the ability to review such subpoenas and detentions. The subpoenas can be challenged by executive officials seeking injunctions against Congress. The arrests and detentions can be challenged (ironically?) by habeas corpus petitions.

    Either way, the question of executive privilege gets to the courts. And that's what my earlier post was about. It's hard to say what the courts will do because there is almost no precedent in this area.


    You are not paying attention (none / 0) (#25)
    by Big Tent Democrat on Fri Jul 20, 2007 at 06:05:53 PM EST
    Bush has rejected the courts as arbiters of this issue.

    Your comment is, to Bush, a dead letter.


    I don't think so. (none / 0) (#26)
    by Gabriel Malor on Fri Jul 20, 2007 at 06:11:03 PM EST
    You're saying that if Congress starts arresting executive branch officials that those officials won't start challenging their arrests in court?

    That's crazy.

    I see you've got a new post on inherent contempt; I'm moving up there.


    I suggest (none / 0) (#29)
    by Big Tent Democrat on Fri Jul 20, 2007 at 06:22:36 PM EST
    you read the Supreme Court cases on the matter.

    And Olson's OLC opinion.

    They seem quite clear on this point.


    BTD (none / 0) (#30)
    by Gabriel Malor on Fri Jul 20, 2007 at 06:31:30 PM EST
    BTD, I'm not sure what your malfunction is, but I'm going to lay this out step-by-step for you.

    Here is how the courts may be called to rule on the question of executive privilege:

    (1) Congress holds inherent contempt proceedings when Administration Official X refuses to comply with a subpoena.

    (2) Congress finds that AOX has impermissibly refused to testify and sentences AOX to a fine and jail time.

    (3) AOX makes a habeas corpus petition to the federal courts alleging that his imprisonment is unlawful because President Bush asserted executive privilege in AOX's case.

    (4) The federal courts rule on executive privilege.

    This is not that difficult a concept, BTD. Get with it.


    Wil the court (none / 0) (#31)
    by Big Tent Democrat on Fri Jul 20, 2007 at 07:03:13 PM EST
    take up the question? Who raises it?

    The very Administration that says the courts do not have a say on the matter?


    No. (none / 0) (#32)
    by Gabriel Malor on Fri Jul 20, 2007 at 07:11:21 PM EST
    Not the Administration, but rather AOX, who is sitting in jail now and is probably super-pissed off, would raise the question in his petition for release.

    As I wrote way back at the begining of this, there's no telling what the courts will do with the question because we only have two lower-level cases for precedent.


    Inherent contempt... (none / 0) (#27)
    by lespool on Fri Jul 20, 2007 at 06:11:51 PM EST
    If congress finds them guilty of inherent contempt, where would they be incarcerated?

    Presumably some type (none / 0) (#28)
    by Big Tent Democrat on Fri Jul 20, 2007 at 06:21:39 PM EST
    of arrangement can easily be put together.