Inherent Contempt

After Congress cited former White House aides Harriet Miers and Josh Bolten for contempt, House Speaker Nancy Pelosi sent a letter to Attorney General Michael Mukasey informing him of the letter she sent to D.C. District Attorney Jeffrey Taylor regarding their possible prosecution.

As he previously indicated, Bolten refused to prosecute, insisting there was no crime:

In his letter, received by the House early Friday evening, Mukasey pointed out that not only was Miers directed not to testify, she also was immune from congressional subpoenas and was right to not show up to the hearing to which she had been summoned.

"The contempt of Congress statute was not intended to apply and could not constitutionally be applied to an executive branch official who asserts the president's claim of executive privilege," Mukasey wrote, quoting Justice policy.

"Accordingly," Mukasey concluded, "the department has determined that the noncompliance by Mr. Bolten and Ms. Miers with the Judiciary Committee subpoenas did not constitute a crime."

In other words, IOIYAR*, which of course, is a big heaping crock of bullcrap. So much for Mukasey being a man of the law.

Then again, this is the same man who refused to say waterboarding is torture.

Pelosi anticipated this and said in her letter:

There is no authority by which persons may wholly ignore a subpoena and fail to appear as directed because a President unilaterally instructs them to do so. Even if a subpoenaed witness intends to assert a privilege in response to questions, the witness is not at liberty to disregard the subpoena and fail to appear at the required time and place. Surely, your Department would not tolerate that type of action if the witness were subpoenaed to a federal grand jury. Short of a formal assertion of executive privilege, which cannot be made in this case, there is no authority that permits a President to advise anyone to ignore a duly issued congressional subpoena for documents.

She also issued this statement:

“By ordering the U.S. Attorney to take no action in response to congressional subpoenas, the Bush Administration is continuing to politicize law enforcement, which undermines public confidence in our criminal justice system.

“Anticipating this response from the Administration, the House has already provided authority for the Judiciary Committee to file a civil enforcement action in federal district court and the House shall do so promptly. The American people demand that we uphold the law. As public officials, we take an oath to uphold the Constitution and protect our system of checks and balances and our civil lawsuit seeks to do just that.”

So the House will now file a civil lawsuit in federal court to enforce the subpoenas. Unfortunately, there is a very good chance the courts would ultimately refuse to hear it based on the political question doctrine. If that is the case, what then?

There is still inherent contempt:

Under the inherent contempt power, the individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned. The purpose of the imprisonment or other sanction may be either punitive or coercive. Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least in the case of the House, beyond the adjournment of a session of the Congress) until he agrees to comply. The inherent contempt power has been recognized by the Supreme Court as inextricably related to Congress’s constitutionally-based power to investigate.

The Democrats will likely hesitate to go this far, but if the rule of law and the very relevance of Congress are not reasons enough, they should remember that this is all bloodsport to Bush and the Republicans, who will certainly show them no mercy if the situation was reversed.

* It's Okay If You're A Republican.

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