More From CRS On Inherent Contempt
More from the CRS Report on Congress’ Contempt Power:
The Position of the Department of Justice on the Use of Inherent and/or Criminal Contempt of Congress Against the Executive Branch
The Department of Justice (DOJ) has taken the position that Congress cannot, as a matter of statutory or constitutional law, invoke either its inherent contempt authority or the criminal contempt of Congress procedures against an executive branch official acting on instructions by the President to assert executive privilege in response to a congressional subpoena. This view is most fully articulated in two opinions by the DOJ’s Office of Legal Counsel (OLC) from the mid-1980s, and has been the basis of several recent claims with respect to pending congressional investigations.
. . . The 1984 opinion focuses almost exclusively on the criminal contempt statute, as that was the authority invoked by Congress in the Superfund dispute. In a brief footnote, however, the opinion contains a discussion of Congress’s inherent contempt power, summarily concluding that the same rationale that makes the criminal contempt statute inapplicable and unconstitutional as applied to executive branch officials apply to the inherent contempt authority:We believe that this same conclusion would apply to any attempt by Congress to utilize its inherent “civil” contempt powers to arrest, bring to trial, and punish an executive official who asserted a Presidential claim of executive privilege. The legislative history of the criminal contempt statute indicates that the reach of the statute was intended to be coextensive with Congress’ inherent civil contempt powers (except with respect to the penalties imposed). Therefore, the same reasoning that suggests that the statute could not constitutionally be applied against a Presidential assertion of privilege applies to Congress’ inherent contempt powers as well.
Okay. Bush has adopted the Ted Olson reasoning. But can the President do anything about it? Let's discuss on the flip.
One thing seems certain, to stop the enforcement of an inherent contempt proceeding the President will have to seek a remedy in court. He clearly has no power over the Congress and the Congress needs nothing in the way of enforcement from the President. In addition, the Congress needs no judicial order to enforce its remedy in an inherent contempt proceeding. It does not require, as it would in a civil or criminal contempt proceeding, cooperation from any other branch of government.
The President must then, in a great piece of irony, seek a remedy from the judicial branch. What would the courts say? It seems to me it it will by necessity examine the President's claim of executive privilege on the merits, interpeting the relevant precedents.
So we will be where we should have been in the first place; allowing the courts to decide the issue.
So what could be Bush's rationale for the long route to the courts? First, it is a dare to the Congress. It is a spoiled brat yelling "make me." Second, it is a time killer. Third, it is a hope that a court resolution will NOT occur for, as I stated in my previous post, it is my view that Bush's claim of privilege is almost laughable.
Will the Congress take this step? They may not have to. Tomorrow th ehouse Judiciary Committee will vote out a criminal contempt citation for referral to the Speaker who will then take the necessary procedural steps to allow her to refer the contempt citation to the US Attorney. Knowing the threat of inherent contempt lies behind this contempt citation, Bush may seek an accomodation with the House. Most such disputes end in this manner.
If Bush does not, he may then follow the path taken in the Burford matter and seek an injunction against the House's attempt to enforce the subpoena. And then negotiate. Or not.
If Bush does not do that, then we could have inherent contempt proceedings at which point Bush will have no choice but to seek court intervention.
The one thing Congress must do is move quickly. Delay is Bush's friend in this matter.
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