Why Inherent Contempt II

In line with this. Frank Askin explains:

[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. And a Supreme Court majority would find it hard to object in the face of . . . entrenched legal principles.


And the President can not pardon:

. . . This power of Congress to punish contemptuous behavior itself was reinforced in 1934. In Jurney v. McCracken, the Supreme Court denied a writ of habeas corpus to a petitioner who had been taken into custody by the Senate sergeant- at-arms for allegedly destroying documents requested in a Senate subpoena.

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.

The opinion distinguished civil contempt, whose purpose is to enforce a third party's rights by coercing compliance with a court order.

The distinction between criminal and civil contempt is well recognized. The punishment for criminal contempt is a set fine or jail term. A civil contempt punishment is framed in terms of either/or: either the defendant does X or suffers daily consequences until X is done. That concept is often explained by the aphorism that the defendant has the keys to the jail in his own pocket. He can free himself by obeying the court order. (The jailing of New York Times reporter Judith Miller for refusing to answer questions during the Scooter Libby investigation is a recent example.)

Thus, Askin recommends:

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. . . . 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.

I am now a committed inherent contemptnik because, as I wrote in the previous post, the Bush Administration has said the courts have no power to enforce Congressional subpoenas. Bush forces this drastic remedy.

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  • Display: Sort:
    "inherent contemptnik" (5.00 / 2) (#1)
    by andgarden on Sat Jul 21, 2007 at 06:44:46 PM EST
    doesn't exactly flow off the tongue.

    No (5.00 / 1) (#2)
    by Big Tent Democrat on Sat Jul 21, 2007 at 06:49:47 PM EST
    But I want to demonstrate that I am for radical solutions based on the exercise of Congressional power.

    If I wanted to play Kagro, I could argue that what if Bush sends over gthe FBI and arrests the Sargeant at Arms?

    But I believe in honest discourse and honest efforts to exercise those Congressional powers that CAN be effective against the Bushco abuses.

    Kagro seems to only like things he thinks he thought of.


    The prospect of having (5.00 / 1) (#4)
    by andgarden on Sat Jul 21, 2007 at 07:00:00 PM EST
    a physical battle between officers of two branches of government is at the same time hilarious and terrifying.

    But you see my point (5.00 / 1) (#5)
    by Big Tent Democrat on Sat Jul 21, 2007 at 07:06:51 PM EST
    If I wanted to slyly and disingenuously argue against inherent contempt, I could raise that specter and ask, what has Bush done that makes you think he WON'T do that?

    It is that type of device that makes KagroX the number 1 impeachnik and makes his stuff ineleigible for the FP of daily kos. He is violating the FAQ on speculative conspiracy theories.

    On the FP. It is a disgrace.


    Nor (5.00 / 1) (#3)
    by squeaky on Sat Jul 21, 2007 at 06:55:19 PM EST
    Does the shoe fit. BTD is making fun of himself, not a bad characteristic to have.

    I must admit of a very shallow reason (5.00 / 1) (#6)
    by jerry on Sat Jul 21, 2007 at 07:09:51 PM EST
    I just think it would be a very interesting thing to see.  I would love to see Republicans and Pundits cry out against it.  I think this show of force by Democrats would win massive approval across the country.

    And it would sure be nice to see a Harriet Miers perp walk up the steps of the Capitol.

    And I think they will have a hard time (5.00 / 2) (#7)
    by Big Tent Democrat on Sat Jul 21, 2007 at 07:12:27 PM EST
    arguing against it since Bush has said the courts can't get involved.

    Inconsistency is their middle name. (none / 0) (#16)
    by aztrias on Sat Jul 21, 2007 at 09:28:56 PM EST
    They'll flip and argue against Court involvement the moment it suits them to change the rules.

    I expect our "elites" will side with the status quo, a run a muck Executive, since they signed up with him and his awesome narrative about unlimited Executive power.

    Reid has begun to learn that The People are behind him and want Congressional checks on anunpopolar GWB.  

    Its important for Congress to push back hard and force the issue with all their powers while they have The People behind them.  

    Let El President barricade the White House.  Reid and Pelosi can stand outside and call him out.


    See the latest post (none / 0) (#18)
    by Big Tent Democrat on Sat Jul 21, 2007 at 09:31:57 PM EST
    on the Times editorial on the subject.

    As I say (none / 0) (#9)
    by andgarden on Sat Jul 21, 2007 at 07:29:08 PM EST
    I've given up on that. People who argue conspiracy get an amazing amount of support.

    The FP forwards one today (none / 0) (#10)
    by Big Tent Democrat on Sat Jul 21, 2007 at 07:32:09 PM EST
    the fraudster is KagroX.

    Prof. Frank Askin of Rutgers Law School (none / 0) (#11)
    by Peter G on Sat Jul 21, 2007 at 07:43:04 PM EST
    who has a long and praiseworthy record of tenacious devotion to constitutional principles, does not have an "S" at the end of his last name, Armando.

    Thanks (none / 0) (#12)
    by Big Tent Democrat on Sat Jul 21, 2007 at 07:51:07 PM EST
    I'll fix it.

    You're welcome, but (none / 0) (#13)
    by Peter G on Sat Jul 21, 2007 at 08:08:07 PM EST
    you only got the first of two.

    got it (none / 0) (#14)
    by Big Tent Democrat on Sat Jul 21, 2007 at 08:13:19 PM EST
    Thanks again.

    Use it or lose it (none / 0) (#15)
    by aztrias on Sat Jul 21, 2007 at 09:17:03 PM EST
    We have 3 co-equal branches of government aligned in an adversarial roles.

    Congress has to exercise their power against the Executive or they'll lose it.

    If not now, when?

    Now it is necessary (none / 0) (#17)
    by Big Tent Democrat on Sat Jul 21, 2007 at 09:31:21 PM EST
    and must be used.

    Inherent Contempt (none / 0) (#19)
    by disgusted on Sun Jul 22, 2007 at 05:42:47 AM EST
    My concern is does the Congress have the opposing parties permission to do this (being sarcatic), with everything alse they have done why aren't they fighting back throught he blogs, you tube my space. Instead the roll over and die.

    Why aren't they just doing it rather then talking about it. Use the shock and awe rtactics from the other side. Here is a example do not tell anyone you are issueing a contempt citation do it then have the media there and blow the BIMBO out of the water the same with the other quit telling them just do it.

    Oh one very important thing make sure it is BINDING. Put all your POWERS back on the TABLE.