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The Congressional Subpoena Power: How It Is Enforced

As the Congress and the Executive Branch move inexorably towards a clash regarding the Executive Branch's refusal to accede to information requests from the Congress and the resulting subpoenas that have been issued, it is worthwhile to review the powers of the Congress in this regard. Fortunately, in 2003, the Congressional Research Service produced a handy report on the subject:

When conducting investigations of the executive branch, congressional committees and Members of Congress generally receive the information required for legislative needs. If agencies fail to cooperate or the President invokes executive privilege, Congress can turn to a number of legislative powers that are likely to compel compliance. The two techniques described in this report are the issuance of subpoenas and the holding of executive officials in contempt. These techniques usually lead to an accommodation that meets the needs of both branches. Litigation is used at times, but federal judges generally encourage congressional and executive parties to settle their differences out of court.

This post is intended to provide some factual background on this subject as there has been much bad information bandied about on this subject. I will be writing a subsequent post on the question of Congressional oversight powers related to its subpoena and information gathering powers. So for the factual background, please follow to the flip.

Subpoenas:

The Supreme Court has described the congressional power of inquiry as “an essential and appropriate auxiliary to the legislative function.”The issuance of a subpoena pursuant to an authorized investigation is “an indispensable ingredient of lawmaking.”

What is of particular interest now is the prudence of relying on the courts to enforce Congressional subpoenas. The CRS report discusses the very interesting 1975 Ashland case, which involved the Federal Trade Commission's resistance to compliance with a Congressional subpoena:

A dispute between a House subcommittee and the Federal Trade Commission(FTC) began on April 16, 1975, when the commission issued an order requiring Ashland Oil, Inc. to submit information on Ashland’s estimates of natural gasreserves on various leases. Ashland submitted the information on August 27, stating that the information was confidential and of a proprietary nature, and that disclosure to competitors would cause injury to Ashland. On October 6, in his capacity as a Member of Congress, John Moss asked the commission to make available to him data gathered by the commission relating to energy development on federal lands. FTC denied the request . . . After the commission agreed to furnish Moss with the information, Ashland Oil went to court to enjoin the FTC from releasing the data. At that point the subcommittee issued a subpoena on December 2, ordering the FTC chairman to appear the following day with the requested documents. On the deadline day, the commission wrote to Moss, advising him that on November 24 a district judge had issued a temporary restraining order enjoining the commission “from disclosing the documents to any third party, including Congress . . . .” With the matter tied up in court, the House Committee on House Administration reported a resolution on December 17, providing for the appointment of a special counsel to represent the House and the Committee on Interstate and Foreign Commerce in judicial proceedings related to the subpoena.

I want to take a moment and highlight the fact that the House can always retain counsel to act on its behalf to enforce subpoenas. There have been some folks who believe that the Congress is helpless because it depends upon the US Attorney for the District of Columbia in this regard. It seems obvious that this is not a legitimate concern given the House's power to appoint its own counsel in such matters. Now back to Ashland:

A federal district court agreed that the information sought in the subpoena was properly within the subcommittee’s jurisdiction. . . . The court rejected the argument that the transfer of the data from the FTCto the subcommittee would lead “inexorably to either public dissemination or disclosure to Ashland’s competitors.” Courts must assume that congressional committees “will exercise their powers responsibly and with due regard for the rights of affected parties.” That decision was affirmed by the D.C. Circuit.

Another dispute which is discussed in the CRS opinion seems especially interesting and relevant to some of the current Congressonal investigations, specifically the investigation of the firings of US Attorneys. In 1991, the Congress investigated claims that the FBI was arresting suspects in foreign lands without the requisite authorization from these foreign countries. During the Congressional investigation, it arose that William Barr, a Justice Department official, had written an opinion reversing a public Office of Legal Counsel opinion on the matter. The Justice Department refused to turn over Barr's memorandum:

Initially, the Administration decided to withhold the document. Attorney General Dick Thornburgh wrote to the subcommittee on November 28, 1989,explaining why it could not have the 1989 opinion: “Apart from classified information, there is no category of documents in the Department’s possession that I consider more confidential than legal opinions to me from the Office of Legal Counsel.” Subcommittee chair Don Edwards replied that OLC opinions had been made available to Congress in previous years. In a letter on January 24, 1990, Edwards provided Thornburgh with other examples of OLC opinions being released to Congress. On January 31, 1990, the chairman of the House Judiciary Committee, Jack Brooks, wrote to Thornburgh about a number of difficulties that Congress had experienced in receiving executive branch documents. . . . The two sides, however, were unable to reach an acceptable accommodation, resulting in the issuance of a subcommittee subpoena on July 25, 1991. The subcommittee argued that it needed the 1989 memo to determine whether it was necessary for Congress to legislate in this area. Unless Thornburgh turned over the document by 9 a.m. on July 31, the committee would vote to hold him in contempt. The Administration decided not to comply with the subpoena, preferring instead to assert executive privilege. . . Brooks denied this line of reasoning: “This committee’s request will in no way expose sensitive information to the public nor will it in any way deter or slow criminal prosecutions in these matters.” As the interbranch collision neared, the two sides were able to find some common ground. The President decided not to invoke executive privilege, and the Justice Department agreed to allow one or more committee members to review the legal memo if the subcommittee would suspend the subpoena and remove the threat of a contempt vote.

The Executive Branch capitulated. But there were other disputes:

During the same time period as the confrontation over the kidnapping memo, the House and the Justice Department engaged in another showdown. On December 5, 1990, Chairman Brooks convened a hearing of the Judiciary Committee to review the refusal of Attorney General Thornburgh to provide the committee with access to all documents regarding a civil dispute brought by Inslaw, Inc., a computer company. Inslaw charged that high-level officials in the Justice Department conspired to force Inslaw into bankruptcy . . . Federal Bankruptcy Judge George Bason had already ruled thatthe Justice Department “took, converted, and stole” Inslaw’s proprietary software, using “trickery, fraud, and deceit.” The Justice Department denied these charges, claiming that what was at stake was a contract dispute. Brooks said that the controversy reached the highest levels of the department, including at least two Assistant Attorneys General, a Deputy Attorney General, and Attorney General Edwin Meese. Because House and Senate investigating committees had been denied access to documents needed to establish the department’s guilt or innocence, Brooks concluded that he was “even more convinced that the allegations concerning INSLAW must be fully and independently investigated by the committee.” . . . [T]he committee would consider contempt of Congress proceedings against the department. At that point several hundred documents were delivered to the committee, which later released a formal investigative report on the Inslaw affair.

Yet again, the Executive capitulated in the face of a resolute Congress. The CRS report reminds us when a Republican Congress was intent on investigating the Executive, the Executive being Bill Clinton:

On December 8, 1995, the Special Senate Committee to Investigate Whitewater Development Corporation and Related Matters (the Senate Whitewater Committee) issued a subpoena for certain documents. The White House announced that it would withhold material concerning a November 5, 1993, meeting at the law offices of Williams & Connolly, which had been retained by President Clinton and First Lady Hillary Clinton to provide personal counsel for Whitewater-related matters. . . . Within a few days, the White House offered to turn over the . . . notes if the committee agreed that the meeting was privileged. The committee refused because it learned of other meetings attended by White House officials and private attorneys. . . . Unable to reach an acceptable compromise, the committee voted to send the issue to the Senate floor and from there to federal district court. Clinton objected that he should not be “the first president in history” to give up his right to attorney-client confidentiality. By December 15, the White House had indicated its willingness to drop most of the conditions it had established for turning over the Kennedy notes to the committee. The change occurred hours after the committee voted to ask the full Senate to go to court to enforce the subpoena.

Yet another Executive Branch capitulation. It seems les surprising now that there has been such little litigation in this area. It seems that the Executive Branch has well understood the weakness of its claims.

The CRS report then discusses the other power Congress can invoke, the contempt power:

The Contempt Power

When the executive branch refuses to release information or allow officials to testify, Congress may decide to invoke its contempt power. Although the legislative power of contempt is not expressly provided for in the Constitution and exists as an implied power, as early as 1821 the Supreme Court recognized [it.] . . If either Housevotes for a contempt citation, the President of the Senate or the Speaker of the House shall certify the facts to the appropriate U.S. Attorney, “whose duty it shall be to bring the matter before the grand jury for its action.” Individuals who refuse to testify or produce papers are subject to criminal contempt, leading to fines and imprisonment.

. . . This section begins by covering contempt actions, from 1975 to 1981, against six Cabinet officers who refused to surrender documents to Congress: Secretary of Commerce Rogers C. B.Morton, Health, Education, and Welfare Secretary F. David Mathews, Secretary of State Henry Kissinger, HEW Secretary Joseph A. Califano, Jr., Secretary of Energy Charles W. Duncan, Jr., and Secretary of Energy James B. Edwards. With contemptcitations looming,the two branches reached a compromise settlement that gave Congress access to the documents.

In the "old days," the Executive conceded. But what of the Republican Presidents once Reagan came into office? What of the famous Gorsuch matter? Here is what the CRS report says:

The contempt action against Gorsuch revealed a weakness in the procedures that Congress relies on for contempt, especially when the Justice Department has already taken a position on legal and constitutional issues. Citing an executive official for contempt requires the executive branch––through a U.S. Attorney––to bring the action. In the Gorsuch case, which show cased executive privilege doctrines advanced by the Justice Department, that action was slow in coming and required a federal judge to nudge it along to encourage an accommodation between the two branches.

The Gorsuch case is especially interesting because the current White House counsel Fred Fielding, was the White House counsel during the Gorsuch matter. The CRS report discusses it as follows:

EPA Administrator Anne Gorsuch, acting under instructions from President Reagan(meaning the Justice Department), refused to turn over “sensitive documents found in open law enforcement files.” Reagan’s memorandum to her, dated November 30, 1982, claimed that those documents represented “internal deliberative materials containing enforcement strategy and statements of the government’s positions on various legal issues which may be raised in enforcement actions relative to the various hazardous waste sites” by the EPA or the Department of Justice. 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.

This is now cited as the example of why the contempt procedure will not work. Personally, it seems to me the better method was always hiring special counsel to seek enforcement of a subpoena in court. The contempt citation procedure seems rife with potential conflict. But even given this problem, the action filed by the Justice Department could still be the vehicle to decide the issue. Consider the CRS description of what happened:

Stanley S. Harris, responsible for bringing the case to a grand jury, listed his name on the Justice Department complaint and advised Congress that “it would not be appropriate for me to consider bringing this matter before a grand jury until the civil action has been resolved.” The Justice Department occupied an unusual ethical position. First it had advised Gorsuch to withhold the documents, and now it decided not to prosecute her for adhering to the department’s legal analysis. In court, the department argued that the contempt action marked an “unwarranted burden on executive privilege” and an“interference with the executive’s ability to carry out the laws.”

Clearly the Justice Department was in a conflict situation and in an untenable position. The House Counsel, Stan Brand, took, to me, a very curious course. The CRS report describes:

Counsel for the House of Representatives urged the court not to intervene, requesting it to dismiss the case. The court dismissed the government’s suit on the ground that judicial intervention in executive-legislative disputes “should be delayed until all possibilities for settlement have been exhausted.” The court urged both parties to devote their energies to compromise and cooperation, not confrontation. After the court’s decision, which the Justice Department chose not to appeal, the Administration agreed to release “enforcement sensitive” documents to the House Public Works Committees, beginning with briefings and redacted copies and eventually ending with the unredacted documents.

Yet again, despite this legal mismanagement by the House counsel (imo of course), the House prevailed over the Executive.

I wanted to provide this background here as a setup for my post to follow on what this all means for oversight, separation of powers, the need for impeachment and other related matters. There is a lot of disinformation that has been bandied about on this point and it is important to start with the facts.

Part 2 to come shortly.

< Isikoff: Bush Had to Consider Cheney in Libby Commutation | Who Can Assert Executive Privilege? >
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  • Display: Sort:
    So.... (5.00 / 2) (#3)
    by Maryb2004 on Sun Jul 08, 2007 at 04:46:10 PM EST
    ... shorter you:  On subpoenas, usually the executive capitulates because it knows the weakness of its claims.  But if it doesn't capitulate the Congress can retain its own counsel to bring actions to enforce its subpoena and isn't required to rely on the US Attorney to file suit.  

    With regard to contempt citations you agree with Kagro that there is a weakness in relying on the US attorney to enforce it and you recommend that Congress just avoid the whole issue by retaining its own counsel to enforce the subpoena rather than going the contempt route.    

    So Kagro isn't misrepresenting the issue with respect to contempt citations.  And to the extent there is a misrepresentation it is by omission of a discussion of enforcement of subpoenas by means other than contempt?  You, on the other hand, omit discussion of his analysis of inherent contempt.

    Just want to be sure what we're talking about here. You both see a problem with enforcement of a contempt citation.  Kagro gets around the problem by recommending the use of inherent contempt proceedings (which you don't discuss) and you get around the problem by recommending that Congress skip the contempt action and appoint counsel to enforce the subpoena.

    Let's assume this Executive doesn't and never will capitulate (since that's the whole point of this exercise).  Assuming you have no problem with inherent contempt (since you don't raise it) -- which would be a more efficient method to get the necessary information and testimony?  His or yours?


    Ummm (5.00 / 1) (#4)
    by Big Tent Democrat on Sun Jul 08, 2007 at 04:54:13 PM EST
    If subpoenas work, why should we not use them?

    Inherent contempt is clearly driven by a lack of confidence in the courts.

    It is a doppelganger for what the argument really is - IMPEACH!!!

    Can you imagine the Congress arresting people?

    It is a TERRIBLE idea, both politically and otherwise.

    The less said the better but if you insist, I will do a post about why inherent contempt is one of the worst ideas ever.

    HEre's a quick hint, imagine Newt Gingrich arresting people.

    Parent

    It is amazing how often (none / 0) (#5)
    by andgarden on Sun Jul 08, 2007 at 04:57:00 PM EST
    the impeachment argument amounts to "we shouldn't even bother to try anything else because we want our public trial."

    Parent
    Well not exactly here (5.00 / 2) (#7)
    by Big Tent Democrat on Sun Jul 08, 2007 at 05:05:38 PM EST
    The argument here is nothing else will work so we should not try them. The problem here is that the one thing we know won't work, because of the votes situation, is impeachment and removal.

    This is much like the argument for "veto-proof majorities" on Iraq. They sound wonderful unitl you realize they will never work, because of the votes situation.

    But here the issue is what can Congress do to get the info?

    I believe subpoenas, enforced in court, are the way to do it, and history backs me up on this. To date, the Bush Administration has NEVER defied a court order.

    I do not care for criminal contempt proceeding involving the Executive branch because the Justice Department generally states the Executve branch position on the law. It is a situation rife for conflict. It is a bad system.

    As for inherent contempt, the idea of Congressional leaders with the power to issue arrest warrants and ENFORCING arrest warrants chills the spine. It is utterly contrary to the copncept of spearation of powers.

    The idea offends. HEre we are criticizing a "unitary executive" and now we are championing a "unitary Legislature?"

    It boggles the mind.

    Think Gingrich and Delay having a power like that being considered "routine."

    Honestly, I think folks have taken leave of their senses.

    Parent

    I agree with all of what you say here (none / 0) (#12)
    by andgarden on Sun Jul 08, 2007 at 05:17:14 PM EST
    my point is that, for many of the impeachment activists, nothing would be better than to drag various handcuffed administration officials into the well of the House. It's birds of a feather with  what I call the "impeachment show." Results and efficacy never come into consideration with that crowd.

    Parent
    Sure (5.00 / 1) (#15)
    by Big Tent Democrat on Sun Jul 08, 2007 at 05:22:12 PM EST
    But I acquit Kagro of being inspired by that.

    I think he believes the threat is the thing. I believe the threat is the disaster. What a reaction would erupt by a Congress bypassing the courts.

    You would be shocked to see so many Republicans defending the courts.

    Only sort of kidding.

    Parent

    The whole "activist judges" thing (none / 0) (#18)
    by andgarden on Sun Jul 08, 2007 at 05:28:52 PM EST
    is really interesting historically. It goes back at least as far as 1912 and the T. Roosevelt/Taft split.

    Parent
    It seems faster and easier (none / 0) (#6)
    by Maryb2004 on Sun Jul 08, 2007 at 05:01:32 PM EST
    than resorting to courts.  By the time they get through the courts it could be months.  Maybe your next post will tell us why there shouldn't be a lack of confidence in the ultimate rulings of the courts but I can understand a lack of confidence in the timeliness of using the courts.

    Newt Gingrich was dealing with an administration with at least a 60% approval rating.  Different facts.  

    Can I imagine Congress arresting people?  For contempt?  Sure.  Why not?  Especially members of an administration with a less than 30% approval rating.  Especially people related to Dick Cheney who has an even lower approval rating.  

    But since I know next to nothing about inherent contempt I'd love to read your thoughts.  And since inherent contempt has been the remedy Kagro has been overtly pushing for (not impeachment) it seems only fair to address it.

    Parent

    Honestly (5.00 / 2) (#8)
    by Big Tent Democrat on Sun Jul 08, 2007 at 05:08:35 PM EST
    So your confidence comes from approval ratings?

    Consider a future Gingrich and DeLay investigating your private life, you are, let's  say, a rich billionaire backing Democratic causes, and this is a pretty transparent political vendetta.

    It does not scare you that you would allow the Congress to engage in something like that?

    How about if it was used to "question" Terry Schiavo?

    Parent

    Congress is subject (none / 0) (#10)
    by Maryb2004 on Sun Jul 08, 2007 at 05:14:38 PM EST
    to elections.  If they misuse their power they can be voted out.  Unlike federal judges who serve for life and can summarily throw people into jail for contempt based on actions in the courtroom.

    But I'm less interested in the politics of the situation than the law.  (Remember - you wanted legal discussion in the comments.  You can get political blathering from any commentator.)   Kagro says there is precedent for it?  If there is precedent, what is the legal problem with it?


    Parent

    President are subject to elections (5.00 / 1) (#13)
    by Big Tent Democrat on Sun Jul 08, 2007 at 05:19:59 PM EST
    If they misuse their power they can be voted out.  Unlike federal judges who serve for life and can summarily throw people into jail for contempt based on actions in the courtroom.

    So what is the problem with Gitmo again?

    On to the serious legal stuuf, I know of the 1821 precedent discussed in the CRS article. I do not believe there is any modern precedent for inherent contempt.

    Parent

    Do you believe (none / 0) (#14)
    by Maryb2004 on Sun Jul 08, 2007 at 05:21:59 PM EST
    that the 1821 precedent is no longer valid just because it hasn't been used in modern times?

    I'm not responding to your efforts to distract. In case there's any doubt in your mind.

    Parent

    I think it is good precedent (none / 0) (#16)
    by Big Tent Democrat on Sun Jul 08, 2007 at 05:23:17 PM EST
    I think it is political suicide to the cause of checking the power of the President.

    I think it is an awful awful policy idea as well.

    Parent

    So ... (none / 0) (#21)
    by Maryb2004 on Sun Jul 08, 2007 at 05:36:25 PM EST
    here's where we are.  You and Kagro agree there is a problem with contempt.  You both advocate perfectly legal ways to get around it.  You both have avoided writing about the other's solution to the problem.  But when pressed you admit his solution is legal but advise against it on political and policy grounds.

    I'd have to say that, from a legal point of view, I don't think he's misrepresenting anything.  

    Parent

    From a FACTUAL point of view (5.00 / 1) (#26)
    by Big Tent Democrat on Sun Jul 08, 2007 at 06:04:36 PM EST
    he has misrepresented the results of subpoena enforcement AND the statutory contempt process.

    The point is for Congress to get the information.

    Inherent contempt seems intended to PUNISH.

    That is what we have criminal laws for.

    Parent

    I don't see that (none / 0) (#54)
    by Maryb2004 on Sun Jul 08, 2007 at 08:43:51 PM EST
    Doesn't the power of Congress to hold someone for contempt end once the person complies?  How is that different than a court throwing Judy Miller in jail until she complied?  I see it used for the same purpose as judicially imposed contempt - to obtain compliance.

    I agree that there is a risk that it can be used as punishment.  But I think that risk is mitigated to a great extent by the House (or Senate) having to act as a body in exercising their authority.  As you point out the Executive doesn't (and shouldn't) have this power but the President is one person and the Congress is a body.  We've seen how difficult it is to get Congress to act.  We can see, in fact, how seldom Congress has used THIS power.  There is some protection simply in the necessity of going through the burdensome process of getting things done in Congress - in either chamber.

    Parent

    Ahhhhh (none / 0) (#56)
    by Big Tent Democrat on Sun Jul 08, 2007 at 08:52:00 PM EST
    It MIGHT be palatable in such circumstance, but see the 1935 case cited here.

    Parent
    Yeah, you're right (none / 0) (#57)
    by Maryb2004 on Sun Jul 08, 2007 at 08:57:11 PM EST
    I was just reading it. That's extreme power.  But  I still think there is an inherint limitation on Congress using it by virtue of how hard it is to get anything done in Congress.

    But ... back to Kagro, I've never seen Kagro hint that congress should use the power to punish - only to compel.  So I'm still don't see that he has misrepresented anything.  

    Parent

    Have it your way then (none / 0) (#59)
    by Big Tent Democrat on Sun Jul 08, 2007 at 09:11:45 PM EST
    I think he has misrepresented the effectiveness of other means, just as he has with regard to the separation of powers and the Spending Power.

    Watch him these coming weeks denigrate the Spending Power with regard to Iraq.

    But you seem to not want to be persuaded and frankly, does it matter?

    I will write what I write and he will write what he writes and it willbe much ado about nothing.

    There wilol be no impeachment, no inherent contempt, and probably, no not funding of the Iraq Debacle.

    Parent

    Just because I argue (none / 0) (#62)
    by Maryb2004 on Sun Jul 08, 2007 at 09:26:47 PM EST
    with you doesn't mean I don't agree with that ultimate conclusion.

    And I've answered my own question on which would be the more efficient solution to the subpoena enforcement problem (which in the end was the question I wanted answered).  Patrick Leahy citing Maccracken.  

    We'll have to go with your solution.  If the Senate doesn't have the stomach for an impeachment trial they aren't going to hold a full trial for contempt.

    Parent

    Wikipedia says there's a 1945 precedent (none / 0) (#17)
    by andgarden on Sun Jul 08, 2007 at 05:27:19 PM EST
    Jurney v. MacCracken, 294 U.S. 125 (1945). I offer no comment one way or the other.

    Parent
    Let's take a look (5.00 / 1) (#19)
    by Big Tent Democrat on Sun Jul 08, 2007 at 05:28:58 PM EST
    Will report back shortly.

    Parent
    1935 (none / 0) (#20)
    by Big Tent Democrat on Sun Jul 08, 2007 at 05:33:30 PM EST
    The petition alleges that McCracken was, on February 12, 1934, arrested, and is held, under a warrant issued on February 9, 1934, after MacCracken had respectfully declined to appear before the bar of the Senate in response to a citation served upon him pursuant to Resolution 172, adopted by the Senate on February 5, 1934. The resolution provides: [294 U.S. 125, 144]   'Resolved, That the President of the Senate issue a citation directing William P. MacCracken, Jr., L. H. Brittin, Gilbert Givven, and Harris M. Hanshue to show cause why they should not be punished for contempt of the Senate, on account of the destruction and removal of certain papers, files, and memorandums from the files of William P. MacCracken, Jr., after a subpoena had been served upon william P. MacCracken, Jr., as shown by the report of the Special Senate Committee Investigating Ocean and Air Mail Contracts.'

    It is conceded that the Senate was engaged in an inquiry which it had the constitutional power to make; that the committee1 had authority to require the production of papers as a necessary incident of the power of legislation; and that the Senate had the power to coerce their production by means of arrest. McGrain v. Daugherty, 273 U.S. 135 , 47 S.Ct. 319, 50 A.L.R. 1. No. question is raised as to the propriety of the scope of the subpoena duces tecum, or as to the regularity of any of the proceedings which preceded the arrest. The claim of privilege hereinafter referred to is no longer an issue. MacCracken's sole contention is that the Senate was without power to arrest him with a view to punishing him, because the act complained of-the alleged destruction and removal of the papers after service of the subpoena-was 'the past commission of a completed act which prior to the arrest and the proceedings to punish had reached such a stage of finality that it could not longer affect the proceedings of the Senate or any Committee thereof, and which, and the effects of which, had been undone long before the arrest.'

    The petition occupies, with exhibits, 100 pages of the printed record in this Court; but the only additional aver- [294 U.S. 125, 145]   ments essential to the decision of the question presented are, in substance, these: The Senate had appointed the special committee to make 'a full, complete and detailed inquiry into all existing contracts entered into by the Postmaster General for the carriage of air mail and ocean mail.' MacCracken had been served, on January 31, 1934, with a subpoena duces tecum to appear 'instanter' before the committee and to bring all books of account and papers 'relating to air mail and ocean mail contracts.' The witness appeared on that day; stated that he is a lawyer, member of the firm of MacCracken & Lee, with offices in the District; that he was ready to produce all papers which he lawfully could; but that many of those in his possession were privileged communications between himself and corporations or individuals for whom he had acted as attorney; that he could not lawfully produce such papers without the client first having waived the privilege; and that, unless he secured such a waiver, he must exercise his own judgment as to what papers were within the privilege. He gave, however, to the committee the names of these clients; stated the character of services rendered for each; and, at the suggestion of the committee, telegraphed to each asking whether consent to disclose confidential communications would be given. From some of the clients he secured immediately unconditional consent; and on February 1 produced all the papers relating to the business of the clients who had so consented.

    On February 2, before the committee had decided whether the production of all the papers should be compelled despite the claims of privilege, MacCracken again appeared and testified as follows: On February 1 he personally permitted Givven, a representative of Western Air Express, to examine, without supervision, the files containing papers concerning that company; and authorized [294 U.S. 125, 146]   him to take therefrom papers which did not relate to air mail contracts. Givven, in fact, took some papers which did relate to air mail contracts. On the same day, Brittin, vice president of Northwest Airways, Inc., without MacCracken's knowledge, requested and received from his partner Lee permission to examine the files relating to that company's business and to remove therefrom some papers stated by Brittin to have been dictated by him in Lee's office and to be wholly personal and unrelated to matters under investigation by the committee. Brittin removed from the files some papers; took them to his office; and, with a view to destroying them, tore them into pieces and threw the pieces into a waste paper basket.

    Upon the conclusion of MacCracken's testimony on February 2, the committee decided that none of the papers in his possession could be withheld under the claim of privilege. 2 Later that day MacCracken received from the rest of his clients waivers of their privilege; and thereupon promptly made available to the committee all the papers then remaining in the files. On February 3 (after a request therefor by MacCracken), Givven restored to the files what he stated were all the papers taken by him. The petition does not allege that any of the papers taken by [294 U.S. 125, 147]   Brittin were later produced. 3 It avers that, prior to the adoption of the citation for contempt under Resolution 172, MacCracken had produced and delivered to the Senate of the United States, 'to the best of his ability, knowledge and belief, every paper of every kind and description in his possession or under his control, relating in any way to air mail and ocean mail contracts; (and that) on February 5, 1934 ... all of said papers were turned over and delivered to said Senate Committee and since that date they have been, and they now are, in the possession of said Committee.'

    First. The main contention of MacCracken is that the so-called power to punish for contempt may never be exerted, in the case of a private citizen, solely qua punishment. The argument is that the power may by used by the legislative body merely as a means of removing an existing obstruction to the performance of its duties; that the power to punish ceases as soon as the obstruction has been removed, or its removal has become impossible; and hence that there is no power to punish a witness who, having been requested to produce papers, destroys them after service of the supoena. The contention rests upon a misconception of the limitations upon the power of the Houses of Congress to punish for contempt. It is true that the scope of the power is narrow. No act is so punish- [294 U.S. 125, 148]   able unless it is of a nature to obstruct the performance of the duties of the Legislature. There may be lack of power, because, as in Kilbourn v. Thompson, 103 U.S. 168 , there was no legislative duty to be performed, or because, as in Marshall v. Gordon, 243 U.S. 521 , 37 S.Ct. 448, L.R.A. 1917F, 279, Ann. Cas. 1918B, 371, the act complained of is deemed not to be of a character to obstruct the legislative process. But, where the offending act was of a nature to obstruct the legislative process, the fact that the obstruction has since been removed, or that its removal has become impossible, is without legal significance.

    The power to punish a private citizen for a past and completed act was exerted by Congress as early as 1795;4 and since then it has been exercised on several occasions. 5 It was asserted, before the Revolution, by the colonial [294 U.S. 125, 149]   assemblies, in imitation of the British House of Commons; and afterwards by the Continental Congress and by state legislative bodies. 6 In Anderson v. Dunn, 6 Wheat. 204, decided in 1821, it was held that the House had power to punish a private citizen for an attempt to bribe a member. No case has been found in which an exertion of the power to punish for contempt has been successfully challenged on the ground that, before punishment, the offending act had been consummated or that the obstruction suffered was irremediable. The statements in the opinion in Marshall v. Gordon, supra, upon which MacCracken relies, must be read in the light of the particular facts. It was there recognized that the only jurisdictional test to be applied by the court is the character of the offense; and that the continuance of the obstruction, or the likelihood of its repetition, are considerations for the discretion of the legislators in meting out the punishment.

    Here, we are concerned, not with an extension of congressional privilege, but with vindication of the estab- [294 U.S. 125, 150]   lished and essential privilege of requiring the production of evidence. For this purpose, the power to punish for a past contempt is an appropriate means. 7 Compare Ex parte Nugent, Fed. Cas. No. 10,375; Stewart v. Blaine, 1 MacArthur (8 D.C.) 453. The apprehensions expressed from time to time in congressional debates, in opposition to particular exercises of the contempt power, concerned, not the power to punish, as such, but the broad, undefined privileges which it was believed might find sanction in that power. 8 The ground for such fears has since been effectively removed by the decisions of this Court which hold that assertions of congressional privilege are subject to judicial review, Kilbourn v. Thompson, supra; and that the power to punish for contempt may not be extended to slanderous attacks which present no immediate obstruction to legislative processes, Marshall v. Gordon, supra. [294 U.S. 125, 151]   Second. The power of either House of Congress to punish for contempt was not impaired by the enactment in 1857 of the statute, Rev. St. 102 ( 2 USCA 192), making refusal to answer or to produce papers before either House, or one of its committees, a misdemeanor. Compare Sinclair v. United States, 279 U.S. 263 , 49 S.Ct. 268. The statute was enacted, not because the power of the Houses to punish for a past contempt was doubted, but because imprisonment limited to the duration of the session was not considered sufficiently drastic a punishment for contumacious witnesses. 9 That the purpose of the statute was merely to supplement the power of contempt by providing for additional punishment was recognized in In re Chapman, 166 U.S. 661, 671 , 672 S., 17 S.Ct. 677, 681: 'We grant that congress could not devest itself, or either of its houses, of the essential and inherent power to punish for contempt, in cases to which the power of either house properly extended; but because congress, by the act of 1857, sought to aid each of the houses in the discharge of its constitutional functions, it does not follow that any delegation of the power in each to punish for contempt was involved, and the statute is not open to objection on that account.' Punishment, purely as such, through contempt proceedings, legislative or judicial, is not precluded because punishment may also be inflicted for the same act as a statutory offense. Compare Ex parte Hudgings, 249 U.S. 378, 382 , 39 S.Ct. 337, 11 A.L.R. 333.10 As was said in In re Chapman, supra, 'the same act may be an offense against one jurisdiction and also an offense against another; and indictable statutory offenses may be punished as such, while the offenders may likewise be sub- [294 U.S. 125, 152]   jected to punishment for the same acts as contempts, the two being diverso intuitu, and capable of standing together.'

    Third. MacCracken contends that he is not punishable for contempt, because the obstruction, if any, which he caused to legislative processes, had been entirely removed and its evil effects undone before the contempt proceedings were instituted. He points to the allegations in the petition for habeas corpus that he had surrendered all papers in his possession; that he was ready and willing to give any additional testimony which the committee might require; that he had secured the return of the papers taken from the files by Givven, with his permission; and that he was in no way responsible for the removal and destruction of the papers by Brittin. This contention goes to the question of guilt, not to that of the jurisdiction of the Senate. The contempt with which MacCracken is charged is 'the destruction and removal of certain papers.' Whether he is guilty, and whether he has so far purged himself of contempt that he does not now deserve punishment, are the questions which the Senate proposes to try. The respondent to the petition did not, by demurring, transfer to the court the decision of those questions. The sole function of the writ of habeas corpus is to have the court decide whether the Senate has jurisdiction to make the determination which it proposes. Compare Barry v. United States ex rel. Cunningham, 279 U.S. 597 , 49 S.Ct. 452; Henry v. Henkel, 235 U.S. 219 , 35 S.Ct. 54; In re Gregory, 219 U.S. 210 , 31 S.Ct. 143.

    The judgment of the Court of Appeals should be reversed; and that of the Supreme Court of the District should be affirmed.

    REVERSED.

    The modern day precedent.

    It really stinks.

    Parent

    Implications? n/t (none / 0) (#22)
    by andgarden on Sun Jul 08, 2007 at 05:47:27 PM EST
    Contempt of Congress (5.00 / 1) (#25)
    by Big Tent Democrat on Sun Jul 08, 2007 at 06:03:02 PM EST
    can be punished by Congress, not by criminal process.

    I think it stinks to high heaven.

    Parent

    With 218 members of the house (none / 0) (#31)
    by andgarden on Sun Jul 08, 2007 at 06:43:24 PM EST
    allowed to act as a sort of prosecuting jury? Interesting--and not palatable.

    Parent
    Prosecutor, Judge and jury (5.00 / 2) (#37)
    by Big Tent Democrat on Sun Jul 08, 2007 at 07:22:00 PM EST
    No spearation of powers.

    Parent
    Star Chamber? (5.00 / 1) (#43)
    by Edger on Sun Jul 08, 2007 at 07:53:35 PM EST
    BTW (none / 0) (#9)
    by Big Tent Democrat on Sun Jul 08, 2007 at 05:12:53 PM EST
    After 9/11, torture seemed faster and easier to the Bush Administration.

    I do not compare the 2, but I do compare the mindset that embraces things because they are "faster and easier."

    Parent

    Sometimes you really p*ss me off (5.00 / 2) (#11)
    by Edger on Sun Jul 08, 2007 at 05:15:56 PM EST
    when you write posts that stretch the mind, make it hurt, and force it to learn.

    Thanks for this post. :-)

    Thanks, BTD (5.00 / 2) (#38)
    by kovie on Sun Jul 08, 2007 at 07:23:10 PM EST
    For illuminating this topic in ways that has been hard to find over on DKos. I've grown weary of engaging in pointless "debates" over there on impeachment and oversight with people who either don't know, aren't interested in and won't respect the facts, or who have an agenda to promote and will resort to any tactic to advance it, including engaging in malicious smearing and/or outright dishonesty. I won't name names but anyone who's spent much time there will know what and whom I'm talking about.

    My position on impeachment and oversight has been a fairly unpopular one on DKos, seeing as how I'm very much for impeachment in principle, in the sense that members of the Bush administration have clearly committed impeachable actions, and that if the smoking gun evidence and votes were there to convict, congress would be remiss in not doing it, but that at present, that evidence and those votes are not there, and not only would it be pointless for congress to persue impeachment nonetheless in light of that, but politically stupid and dangerous, and professionally negligent.

    It would not only skip over and preclude the use of far more promising and appropriate congressional powers in checking this administration's powers and holding it accountable for their crimes, and thus make it far less likely that this will happen, but in effect negate their legitimacy in their being rejected by congress as appropriate remedies, setting an awful precedent. Not unlike, in a certain broad sense, attacking a country unilaterally and preemptively (on fallatious grounds) for alleged wrongdoing when diplomacy would probably have been far more effective and justified in dealing with that country. Ironic how enemies of this regime are actually engaging in some of its core methods.

    I have been trying to argue in my non-lawyerly way (and thus likely making unintentionally mistaken sub-arguments along the way) that in fact the constitutionally and politically correct and most promising path for congress to take at this point is through the courts--and I didn't even realize that congress could persue this with its own "special counsel" (as opposed to a DoJ-appointed "Special Counsel", which is what Fitz was and is wrt the Plame investigation). It is the correct path because it clearly validates the constitutional process that the administration has been trying to subvert by bypassing and undermining it, it avoids the taint of congress potentially abusing its powers as would happen with impeachment or inherent contempt, and, I believe, is the most promising path, because, contrary to what many have been arguing on DKos, the courts have not been nearly as supportive of this or any other administration on constitutional matters as has been claimed by these people.

    Yes, there is Gorsuch (or, even less relevant, Bush v. Gore, and a number of other rulings), but there are also many rulings against the executive, such as during Watergate (or, perhaps less relevant except that they're recent and constitutional, Hamdan, Rasul and Hamdi). Not being a lawyer I cannot push this argument very far, except to point out that this can be argued either way, and is not nearly as cut and dry as some on DKos have made it out to be.

    Furthermore, S.214 does, I think, somewhat weaken the administration's ability to manipulate the DoJ as it sees fit. However, if congress can enforce subpoenas through the courts independantly of the DoJ, this might not even matter.

    And finally, all the personal smears that I and others have been subject to recently at DKos simply because we not only refuse to go along with the "Impeach now or die!" crowd over there, but have tried to present rational arguments for why this is a bad idea, just reinforce my fears that it is becoming increasingly impossible to have, and pointless to try to have, rational discussions on such matters over there. So I've all but given up trying. Sad, that it should devolve into a purity pissing contest--with the pissing being unidirectional.

    I hope this hasn't been too much of a muddle. Just my attempt to express some pent-up frustrations with this whole "debate" and what's been happening to DKos over this "false messiah" impeachment nonsense.

    Sad to say that (5.00 / 1) (#39)
    by Big Tent Democrat on Sun Jul 08, 2007 at 07:31:34 PM EST
    on impeachment, DKos is the new DU.

    Parent
    Well, I got the words "not funding" (5.00 / 1) (#41)
    by andgarden on Sun Jul 08, 2007 at 07:43:01 PM EST
    onto the front page last night (if tangentially). So, substance creeps back, perhaps.

    Parent
    Nice work dealing with the liars (5.00 / 1) (#47)
    by Edger on Sun Jul 08, 2007 at 08:20:32 PM EST
    that descended on you there, btw.

    Parent
    They lurk in the winds ;-) n/t (none / 0) (#48)
    by andgarden on Sun Jul 08, 2007 at 08:25:11 PM EST
    And flutter with the aspens out west... (5.00 / 1) (#60)
    by kovie on Sun Jul 08, 2007 at 09:13:26 PM EST
    LOL (none / 0) (#61)
    by andgarden on Sun Jul 08, 2007 at 09:22:22 PM EST
    Heh. I noticed that one. (none / 0) (#58)
    by Edger on Sun Jul 08, 2007 at 09:00:29 PM EST
    You just got another rec (5.00 / 1) (#52)
    by kovie on Sun Jul 08, 2007 at 08:35:08 PM EST
    And it's not that there isn't still substance on DKos, on this, impeachment or any other issue. It's just that non-substance appears to have taken over of late, for reasons unknown. Whether it's due to understandable if unfortunate "tulup mania" or certain bad elements taking over or joining in large numbers, I don't know. Perhaps a bit of both. But it's sad nonetheless, and unfortunate.

    Parent
    I agree. n/t (none / 0) (#53)
    by andgarden on Sun Jul 08, 2007 at 08:39:52 PM EST
    You've described the problem (5.00 / 1) (#42)
    by Warren Terrer on Sun Jul 08, 2007 at 07:52:36 PM EST
    with DailyKos and impeachment to a T.

    Parent
    They want (5.00 / 1) (#44)
    by andgarden on Sun Jul 08, 2007 at 07:54:31 PM EST
    their impeachment show.  

    Parent
    Well (5.00 / 1) (#45)
    by kovie on Sun Jul 08, 2007 at 08:13:34 PM EST
    I would actually love it myself. But ONLY if likely to convict and remove, ONLY if all other options (many of which would have to precede a successful impeachment) have been thoroughly exhausted, and ONLY if the smoking gun evidence was rock solid and beyond any reasonable (or even unreasonable) accusation of "politicization". And we are clearly not anywhere near there yet.

    Unlike BTD and some others I am not entirely convinced that we could never get there, or that even if we were close but not necessarily quite there in the senate, that it would be a bad idea to proceed (for political reasons, in the political damage that I believe it would do to the GOP if the house votes to impeach and the senate fails to indict by a handful of Repub votes, while at the same time innoculating Dems due to the near-supermajority nature of such a vote).

    But it's really a moot point what I think about impeachment's ultimate feasibility, because right now, it simply isn't feasibly, wise or necessary, for reasons that BTD and others have amply pointed out, and I have tried to. It's like trying to take down a fortress by nuking it when a sustained seige is far more likely to take it down, and with far less harm to your side. Impatience, unrestrained emotion and a recourse to dubious shortcuts is not the way to go here.

    This is not about revenge. This is about justice--i.e. its restoration, through its aggressive and intelligent application. The best way to restore the constitution and the legal and political traditions that it has inspired is to simply USE the constitution and these traditions, IMO, as wisely and strongly as possible. "Impeachment Now!" is the exact opposite of that, even though many don't quite realize it--or simply refuse to in their understandable but misguided impatience.

    Parent

    Don't get me wrong either (5.00 / 1) (#46)
    by andgarden on Sun Jul 08, 2007 at 08:17:18 PM EST
    I would love to see the whole lot of them removed from office too; it just quite obviously not possible.

    Parent
    If this was DKos (5.00 / 2) (#49)
    by kovie on Sun Jul 08, 2007 at 08:25:42 PM EST
    then this is about the point where some purity troll would be jumping in and accusing us of enabling Bush and his crimes--because they've literally run out of more intelligent and useful things to say in defense of impeachment. I've troll-rated several of them (as if my policy at this point) only to get piled on and TRed in retaliation. To the extent that this behavior is going to be tolerated if not encouraged by its members, DKos will be increasingly irrelevant if not deleterious to our side's cause. Thus my presence here (and at Greenwald, my frequent alternative haunt, and where the trolls are thankfully fairly easily managed).

    Parent
    I agree (5.00 / 1) (#51)
    by Warren Terrer on Sun Jul 08, 2007 at 08:29:34 PM EST
    I'm a big fan of dkos and I don't really enjoy bashing it at all, but the impeachment situation over there is getting ridiculous. Your description of it is right on the money.

    Parent
    I think it's safe to say (5.00 / 1) (#50)
    by Warren Terrer on Sun Jul 08, 2007 at 08:26:56 PM EST
    we would all love to see Bush impeached and removed from office. Probably no president has deserved it more.

    But wanting it, and being sure that Bush deserves it, aren't the same thing as making it come true. The numbers don't add up.

    I didn't always feel this way. In the days after the 2006 election and the early days of the current congress I hoped that enough momentum could be created to get the House to pass articles of impeachment and to get the Senate to convict.

    But I never had any illusions about it, and at some point (not sure when now) I came to the conclusion that impeachment cannot happen, and it's futile to devote the kind of energy to it that so many are doing. And as more time passes, impeachment becomes less likely, and less necessary anyway, even as the 'impeachniks' become more strident about it. I can't help but think that it will reach a crescendo on January 19, 2009, when some they'll all be screaming 'we must impeach NOW because it's our last chance'.

    BTD, meanwhile, gives some of the best arguments for why impeachment cannot succeed and is, basically, a bad idea.

    Parent

    My take on impeachment (none / 0) (#55)
    by kovie on Sun Jul 08, 2007 at 08:46:50 PM EST
    is that while on the merits it's fully justified, not only is it currently not possible or wise, and likely never feasible, it is in any case something to be persued only AFTER a certain extended process is first engaged in, which we are now only in the initial stages of, not PRIOR to or in parallel to it, so it is not only stupid if not dangerous to persue it now, but just plain moot. It's like trying to convict before a grand jury has even been impanelled. Huh?

    I view impeachment as, at best, an unexpected but delightfully welcome cherry on top of the oversight process, that it MIGHT, if we're really, really lucky, lead to, but which we should neither pin our hopes on, nor need to pin our hopes on, nor give much thought about, nor pursue, nor expect, as we pursue that oversight process. And anyone who's truly serious about impeachment is obliged to respect the only process that could possibly EVER lead to it--i.e. this oversight process.

    But to pin our hopes on a premature and hugely unpromising, pointless and quite possibly dangerous impeachment process NOW is just plain silly, and a complete misunderstanding of how oversight and impeachment really work, and are meant to work. You don't respect the constitution and tradition by ignoring them. And that applies to both sides of the aisle. It's sad that this has to be pointed out.

    Parent

    Is this your way of saying (none / 0) (#1)
    by andgarden on Sun Jul 08, 2007 at 04:27:52 PM EST
    that KargoX is, ahem, misrepresenting the options available to Congress?

    I think he is misinformed (none / 0) (#2)
    by Big Tent Democrat on Sun Jul 08, 2007 at 04:38:39 PM EST
    Or perhaps he wants the job to be done (none / 0) (#28)
    by bronte17 on Sun Jul 08, 2007 at 06:30:20 PM EST
    completely this time.

    BTW, not trying to be a spoilsport in your diaries.

    Just pushing the envelope because if anyone gets down to the barebones of this issue, it will be you.

    Parent

    Inherent contempt (none / 0) (#30)
    by Big Tent Democrat on Sun Jul 08, 2007 at 06:38:48 PM EST
    could spark a complete disaster for a Dem Congress.

    In some ways it wopuld be worse than impeachment.

    Parent

    Here's the thing (none / 0) (#23)
    by Maryb2004 on Sun Jul 08, 2007 at 05:54:02 PM EST
    (and I'm moving over here because this is blather) we all want congressional oversight.  The fact that Kagro wants that oversight to ultimately lead to impeachment isn't a secret. I don't think that, even with intense oversight and investigation, the votes for impeachment will ever be there and I don't think it's worth going through the exercise if it is known in advance that there will be no penalty.  It will harm the country just as surely as the pardons for Iran Contra harmed the country.  

    But, in the end, oversight is good and it needs to be done and the subpoenas need to be enforced if necessary.  I can see your point about the political ramifications to resorting to that tactic.  But truthfully I'm tired of the arrogance of this administration and maybe once in a while Congress needs to flex its muscles.  If it has the power maybe this is the time to use it (if necessary).  So I can appreciate Kagro's arguments even if I disagree with his ultimate goal.

    To be completely truthful (5.00 / 1) (#24)
    by Maryb2004 on Sun Jul 08, 2007 at 05:59:39 PM EST
    I don't disagree with his ultimate goal.  I think the b***ds should be impeached and removed.  But I will not advocate for it since I've concluded it isn't possible and bringing an impeachment action without any hope of removal would be more harmful than not doing it. It cheapens the process and will make future administrations even more daring.

    I know others disagree of course.  But I hope we all agree that we need to bring out, by oversight, every single  transgression of this administration.

    I have to go out for a while but I'll be back later.

    Parent

    Question. Your preference is a Special Counsel (none / 0) (#27)
    by bronte17 on Sun Jul 08, 2007 at 06:27:29 PM EST
    As you note:
    ...it seems to me the better method was always hiring special counsel to seek enforcement of a subpoena in court...

    So, Fitz was Special Counsel with the USDOJ. Yet, he served at the discretion of the POTUS, did he not?  Bush could have fired Fitz, could he not?

    So, who would this special counsel be that Congress would utilize?  Not OCS? They don't have the teeth.

    We don't have an Office of Independent Counsel any longer.  It was replaced by USDOJ in 1999.

    So, any special counsel would have to be from the USDOJ.  Even if the counsel were selected from outside Justice, would/could the POTUS have a hand in this?

    You misunderstand (none / 0) (#29)
    by Big Tent Democrat on Sun Jul 08, 2007 at 06:37:12 PM EST
    It is not a Special Counsel in the sense you mean, to investigate crimes. It is a Special Counsel to file and prosecute enforcement of the Congressional subpoena.

    Think of it in terms of a civil case. I represent a party in an action. I issue a subpoena. The subpoena is ignored. I make a motion to compel compliance with the subpoena.

    The Court either issues the order or says I am not entitled.

    At which point it would be failure to comply with a Court Order subject to judicial contempt proceedings.

    Parent

    I keep overreaching to get to the criminal (none / 0) (#34)
    by bronte17 on Sun Jul 08, 2007 at 07:19:44 PM EST
    whereas you are focused on the civil aspect of subpoena power issues.

    It comes down to the distinction that I want criminal charges and you say no. It is not in the best interests of the Democratic Congress to do this.  At this moment in time?

    A court lacking the power to coerce obedience to its orders, or to punish disobedience of them, is a contradiction in terms. Contempt power is what distinguishes a court from an administrative tribunal. A court without contempt power is not a court.16 Judicial contempt power, which is nondelegable17 and exercisable only in open court,18 has two facets criminal or public, and civil or private.19 A criminal contempt of court violates the public's rights generally since the court serves as the public's instrument of justice. Judicial authority, in the form of criminal contempt power, is vindicated through punishment and fines.20 Civil contempt, however, violates the rights of civil litigants in a purely private capacity. Here, coercive imprisonment, fines, or monetary indemnity serve to repair the private damage caused by disobedience to a court's order.21

    So, we start with civil and see how the bush administration wrangles its way through that?


    Parent

    A court (none / 0) (#36)
    by Big Tent Democrat on Sun Jul 08, 2007 at 07:21:06 PM EST
    being the key part of your quoted cite.

    Parent
    Umm, I have a question ... (none / 0) (#32)
    by Sailor on Sun Jul 08, 2007 at 06:51:40 PM EST
    ... and it truly is an honest question:
    Can you imagine the Congress arresting people?
    My understanding is that the Sgt of Arms does have the power to arrest folks who refuse congressional subpoenas.

    It maybe so 19th century, but it was used several times, and I believe that makes for precedent.

    Since the DoJ belongs to the exec, and the exec claims to be above the law, let's balance the powers again.

    I'm just sayin'  ... and I really would appreciate a (non-insulting) answer.

    Regards,

    Sailor

    The executive (5.00 / 1) (#35)
    by Big Tent Democrat on Sun Jul 08, 2007 at 07:19:58 PM EST
    can not arrest without an arrest warrant issued by a federal court. The Padilla case was about this.  

    Parent
    Thanks guys (none / 0) (#40)
    by Sailor on Sun Jul 08, 2007 at 07:36:42 PM EST
    I'm out of my league here. I appreciate your learned opinions.

    It's just that like most of America I think something HAS to be done. Unlike most of America, I thought that from the start. (Unless you count the 51% who voted for Gore;-)

    It was a serious question, and I appreciate the serious answer. Thanks again.

    Parent

    First the subpoena must be effectively (none / 0) (#33)
    by oculus on Sun Jul 08, 2007 at 07:16:29 PM EST
    served.  Then, if the subpoenaed party fails to appear, arrest for failure to appear ay be proper.  

    Parent
    You and your d*mn facts (none / 0) (#63)
    by Alien Abductee on Sun Jul 08, 2007 at 11:06:07 PM EST
    Impeachment now!!

    It would be great to see. (none / 0) (#64)
    by Edger on Sun Jul 08, 2007 at 11:45:19 PM EST
    But it won't happen. It's frustrating, but there are not and will not be the votes for it.

    It would be an empty time wasting exercise, unfortunately.

    Parent

    I'm joking, at least somewhat at this point (5.00 / 1) (#65)
    by Alien Abductee on Sun Jul 08, 2007 at 11:57:35 PM EST
    This is a great piece - very informative. I've been reading around and coming to the conclusion that agitation for impeachment (even with no illusions) is not going to be very beneficial.

    But on the other hand I also have to reconcile that with my view that the netroots serves a kind of public id function, or should - to be expressing on a mass level this is what we want.

    Parent

    Maybe there would be enough support and votes (none / 0) (#66)
    by Edger on Mon Jul 09, 2007 at 12:10:28 AM EST
    for storming the White House with pitchforks and torches and rakes and hoes and forcibly dragging the forkin corksuckers crying like the cowards they are and kicking and begging and whining and pleading for mercy down Pennsylvania Avenue by their lips to a oak tree somewhere near Washington Monument, tossing a rope over a branch and winching them up very slowwwwwwwly.

    On camera?

    Parent

    On second thought (none / 0) (#67)
    by Edger on Mon Jul 09, 2007 at 12:13:30 AM EST
    using these might be more satisfying?

    Parent
    Evil (none / 0) (#68)
    by Alien Abductee on Mon Jul 09, 2007 at 12:18:37 AM EST
    Whatever that is, it just might do.

    Parent
    Yep - it's evil alright. (none / 0) (#69)
    by Edger on Mon Jul 09, 2007 at 12:28:04 AM EST
    Bush to Cheney doing his best Brando (5.00 / 1) (#70)
    by kovie on Mon Jul 09, 2007 at 01:22:47 AM EST
    I coulda been someone! I coulda been...a decider!

    Cheney back to Bush in his best Steiger: You moron, you ARE one!

    Bush to Cheney: Oh yeah, heh heh heh heh!

    Condi to Bush in her best Saint Marie: Don't listen to them, you're a good man!

    Sorry, couldn't resist when I saw that image right out of On the Waterfront.

    Parent

    Toon funny. (none / 0) (#73)
    by Edger on Mon Jul 09, 2007 at 04:45:13 AM EST
    Perfect, kovie!

    Parent
    Conyers (none / 0) (#72)
    by Alien Abductee on Mon Jul 09, 2007 at 03:49:11 AM EST
    I like how Conyers used it today re the Attorney firings: Impeachment? No, no, no, I'm not putting it on the table... but the American people are. Keep that in mind if you think you're going to get away with defying our subpoenas... And the more it's discussed publicly and casually like this, the more real it starts looking as a threat. It creates some leverage in terms of public awareness even if no actual move toward impeachment is ever made. This use actually plays well against Pelosi's off the table.

    Parent
    Public Condemnation? (none / 0) (#74)
    by Edger on Mon Jul 09, 2007 at 05:11:33 AM EST
    If it creates some leverage that way it should also be helpful in pushing the Democrats to defund the occupation....

    They saw last November what can happen to a party that doesn't listen. So far they don't seem to be litsening, except for Reid, belatedly.

    Parent

    I at least admire your faith in the system. (none / 0) (#71)
    by mattd on Mon Jul 09, 2007 at 02:42:27 AM EST
    I wish I had it.  Subpoenas coerce people to provide information because there are severe penalties for defying them.  I don't think the Bush administration believes any of its members will pay any penalty for defying congressional subpoenas, and that their plan is simply not to turn over information they don't want to turn over.

    Yes, it's illegal.  So is the NSA wiretap program, as they have admitted, but they keep doing it and have not yet been made to stop.

    I wish I had your faith.  I know the executive branch has usually caved after SCOTUS rulings.  I even know we've been lied into war before ("Remember the Maine!"), and the republic survived.  It's always worked out in the end, at least so far.

    But I just don't have the faith that it will this time. What PIerce said on Iran-Contra rings true, and after the Libby commutation, I simply don't see any of them paying any price for defying Congress.

    Again, I hope to be proven wrong.

    Excuse me (none / 0) (#75)
    by Big Tent Democrat on Mon Jul 09, 2007 at 07:41:24 AM EST
    This is simply ridiculous. There is no evidence of Bush defying court orders.

    There is no reality that impeachmnet will lead to removal.

    But I am the one operatong on fiath?

    This is is just checking your thinking faculties at the door.

    I give you no respect for this comment.

    I will ignore you until you decide to start thinking again.

    Parent

    VE...VE (none / 0) (#76)
    by Sumner on Mon Jul 09, 2007 at 10:46:24 AM EST
    (L.) - perhaps. . . perhaps.  - Cæsar

    While we can maybe quibble about the importance for a lawyer of not equivocating, "There is no evidence" is perhaps different from "I have seen no evidence" or "I do not recall seeing evidence" or "where is the evidence?". Some of these remarks may be more factual than others.

    There may also be a tendency for some judges to adjust their orders where they recognize that the president is in willful defiance.

    yuj (none / 0) (#77)
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