There is one benefit, and probably only one benefit, to laboring under the Bush administration. We are forced to learn all kinds of things about how the government actually works…or is supposed to work. We have to do this to understand what the hell is going on and what can be done about it. It involves a lot of homework.
For example, we all know that congress has the power to compel witnesses and documents under the threat of a charge of Contempt of Congress. But what about the enforcement of a Contempt of Congress charge? If someone refuses to comply with a subpoena, who does something about it?
Under ordinary circumstances, Congress refers the matter to a U.S. attorney who, according to prior court rulings, is duty bound to refer the matter to a grand jury. However, as Kagro X has recently pointed out, there is at least one precedent for the Department of Justice refusing to refer such an incident to a grand jury. It happened in 1982 and, while the witness [an EPA official] did eventually reach an accommodation with Congress, the Justice Department declared, “a U.S. Attorney is not required to bring a congressional contempt citation to a grand jury when the citation is directed against an executive official who is carrying out the President’s decision to invoke executive privilege.”
So, for example, even though the House Oversight Committee authorized a subpoena last week to compel the testimony of Condoleeza Rice, it’s possible that she will refuse to testify, be charged with Contempt of Congress, the matter will be referred to a U.S. attorney, and the U.S. attorney will simply refuse to do anything about it. There are other subpoenas floating out there that bear directly on the activities of the Justice Department that may provide even richer possibilities for a showdown between Congress and the DOJ.
So, what could Congress do if faced with such intransigence?
It hasn’t been used since approximately 1935, but there is a provision called inherent contempt which Congress could use to overcome administrative stonewalling. But it would get ugly.
Under this process, the procedure for holding a person in contempt involves only the chamber concerned. Following a contempt citation, the person cited for contempt is arrested by the Sergeant-at-Arms for the House or Senate, brought to the floor of the chamber, held to answer charges by the presiding officer, and then subject to punishment that the House may dictate (usually imprisonment for punishment reasons, imprisonment for coercive effect, or release from the contempt citation.)
Concerned with the time-consuming nature of a contempt proceeding and the inability to extend punishment further than the session of the Congress concerned (under Supreme Court rulings), Congress created a statutory process in 1857. While Congress retains its “inherent contempt” authority and may exercise it at any time, this inherent contempt process has not been exercised by either House in over 70 years.
Using the example of Condi Rice, under the inherent contempt provision she would be arrested by the Capitol police (acting under the authority of the Sergeant of Arms) and brought before the floor of the House of Representatives to answer charges (a trial) of contempt. She would then be imprisoned for not longer than the remainder of the session (in this case, December 2007) unless or until she agreed to satisfy the dictates of the original subpoena.
Seems like a pretty extreme measure to take against a sitting Secretary of State. It would make for some interesting theater, but it would also demonstrate an almost unprecedented level of dysfunction in our government. This procedure seems more likely to occur to compel the testimony of less luminous personalities in the Justice Department or the Republican National Committee than it does for Condoleeza Rice. However, things could, at least in theory, come to that.
There is also a civil procedure available to Congress, but it seems to have limited applicability to members of the executive branch.
If the administration continues to defy subpoenas for witnesses and documents, we may see the ‘inherent contempt’ provision make a comeback after a 72 year hiatus.
Rep. Brad Miller of North Carolina, in his capacity as chairman of the Science committee’s Investigations and Oversight panel, has encountered the same sort of intransigence from the Bush “administration” that is threatened over the investigation into the U.S. Attorney firings…
So as Rep. Miller has become increasingly pessimistic about the chances that the “administration” will relent in his case, he’s been consulting the same Congressional Oversight Manual, and was dismayed to learn that the enforcement options are indeed quite limited. Inherent contempt, he’s discovered, is perhaps the only way Congress will be able to enforce its subpoena power with this “administration,” and he’s been talking with CRS experts to explore how a modern inherent contempt procedure might be established. Even better, he’s been sharing that information with Rep. Linda Sanchez, chair of the Judiciary committee’s Commercial and Administrative Law panel that’s handling the subpoenas in the U.S. Attorneys matter.
Yep. Things could get interesting. Especially in light of this and this.
