Cheney’s absurd notion of unlimited executive power – which is what the so-called “Unitary Executive Theory” amounts to, as Bush’s latest power grab makes inarguable – is forcing a Constitutional crisis. The central notion of what I will call the “Cheney Doctrine” that executive privilege, as Scott Horton put it, “trumps” the Constitution seems to have left the Congress with no alternatives to forcing accountability from the Administration except for criminal contempt citations.
We know what will happen if Miers & Rove et al are served with them: they’ll be ignored on the grounds of executive privilege and the Congress will have to go to court in a system packed with irresponsible Republican judges to enforce both the citations and the original subpoenas Bush has declared invalid. Either that or he’ll pardon them, making the issue moot. Meanwhile, the witnesses whose testimony is crucial to discovering the truth about this Administration hide safely behind the walls of presidential protection like Mafia hitters hiding behind the Code of Omerta.
It looks like a Mexican standoff, but Rutgers law professor Frank Askin says in a WaPo op-ed today that there’s another option to the contempt dance that at once asserts Congressional power and puts the Administration into a PR bind it won’t be easy for them to get out of: either branch of the Congress can have its sergeant-at-arms arrest those who refuse to answer a Congressional subpoena and throw them in the DC jail.
It seems that the House Judiciary Committee is considering seeking help from the Justice Department to enforce contempt citations against Bush administration officials such as Joshua Bolten who refuse to respond to congressional inquiries into alleged White House wrongdoing. That would be a mistake.
Such a strategy leaves Congress beholden to hostile executive branch officials to enforce its prerogatives on exactly the type of charges that the administration said this week it would not allow officials to pursue. This strategy also would allow the president to pardon his underlings should they ever be indicted and convicted.
Yet under 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 two entrenched legal principles.
So long as Congress is investigating issues over which it has the power to legislate, it can compel witnesses to appear and respond to questions. That power has been affirmed over and over in prosecutions for contempt.
In modern times, this congressional power has been enforced by referring contempt cases to the U.S. attorney for the District of Columbia for indictment and prosecution. That, of course, is the rub. It allows the president to exercise his plenary power under the Constitution to issue pardons “for offenses against the United States.”
But no law says that indictment and prosecution by the Justice Department is the exclusive means to enforce congressional prerogative.
The key to Askin’s strategy lies in using a civil contempt citation rather than a criminal one.
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, the congressional alternative. 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. Technically, the witness could be imprisoned somewhere in the bowels of the Capitol, but historically the sergeant-at-arms has turned defendants over to the custody of the warden of the D.C. jail.
(all emphasis added)
Bush couldn’t “pardon” them out of the hoosegow because the charge would be civil rather than criminal. In fact, the only way he could get them out would be to either convince the House to rescind its order or send military units to storm the jail and break them out.
This is a brilliant strategy on a lot of different levels, not least because it restores Congressional power vis-a-vis the executive in a single dramatic stroke perfect for TV (a Rove-Miers perp-walk, anyone?) and announces their determination to resist the Cheney Doctrine in no uncertain terms.
Askin explains in his piece that not only is this not a particularly innovative approach (it has been done before in our history – successfully) but that there is ample legal precedent for it. It is settled law, unlike the executive privilege issue which has never been finally defined and decided by the Court. It would take the ball firmly OUT of Cheney Doctrine/Bush Pardon territory and place it squarely back into settled Constitutional law while at the same time forcing individual accountability. If Libby was pardoned because the Administration was frightened of what he might reveal to stay out of jail, how much more might Miers or even Rove reveal to get out once they’re in? The DC jail is a lot less comfortable than the country club prison Libby was going to.
FWIW, I urge Rep Conyers to consider replacing criminal contempt citations with civil ones, and to arrest Rove and Miers and anyone else who has ignored Congressional subpoenas as soon as possible.
Sir, if you and the Democrats don’t have the guts to do this much to short-circuit Cheney/Bush’s blatantly unConstitutional appropriation of power and so return to Americans our Constitutional government with its Balance of Powers Doctrine, then you are worthless, the whole bunch of you, and you are leaving us no choice but to take it back ourselves. In the streets.
(Via Frank Pasquale at the lawblog Concurring Opinions)