A Constitutional Conundrum

by Brian Beutler, The Media Consortium: Wed., Apr 23, 2008
Filed under: Congressional Oversight

With Justice denied and Congress defied by the Bush administration, the House does the civil thing — possibly changing the shape of government power for years to come. Or not.

Overshadowed by a heated presidential election battle and daily news of a sinking economy, a law suit that could change the shape of governmental power is making its way through U.S. District Court in Washington, D.C., challenging the Bush administration’s attempt to flout contempt of Congress charges against one current and one former aide. Its outcome could limit the scope of presidential power by providing Congress the means to investigate the inner workings of the executive branch without relying on the good will of one of the executive’s most powerful agencies, the Department of Justice (DoJ).

As recent events have shown, that good will isn’t always forthcoming. Attorney General Michael Mukasey recently blocked the Justice Department from prosecuting criminal contempt of Congress citations against White House staff, pushing the House of Representatives down a path that, wherever it leads, will set a legal precedent — and could possibly make it more difficult for future presidents to defy the will of Congress. Earlier this month, the House Judiciary Committee filed a >motion (PDF file) against current and former Bush administration figures in civil court, with the limited aims of securing testimony and documents from White House Chief of Staff Josh Bolten and former White House Counsel Harriet Miers regarding the firings of nine U.S. attorneys by the Justice Department under the watch of then-Attorney General Alberto Gonzales. Both Bolten and Miers, acting on White House orders, have refused to comply with the committee’s subpoenas.

Generally speaking, when the full House votes to issue statutory contempt citations against individuals who impede congressional investigations, the criminal charges are referred to, and prosecuted by, the Justice Department. But the DoJ, like all executive branch agencies, is ultimately controlled by the president and his appointees, and this time around, with current and former federal officials under the microscope, the White House is refusing to abide by the game’s traditional rules. The attempt by the House Judiciary Committee to have its case heard in civil court — which does not require action by DoJ — marks a departure from past practice, but one that, if decided by Judge John D. Bates of the U.S. District Court, would provide Congress with a new recourse in any future attempt by the executive branch to stymie congressional oversight prerogatives.

Many administration critics, particularly in the blogosphere, have grown frustrated with Democrats on Capitol Hill for not resurrecting a practice known as “inherent contempt” — an arcane authority that allows Congress to prosecute contempt internally and that could, in theory, result in the arrest and incarceration of both Miers and Bolten by the House Sergeant at Arms.

“There is something of a sense that it is not productive for Congress to use its inherent contempt power,” explained Mark Agrast, a constitutional law expert and senior fellow at the Center for American Progress. “It’s just too unwieldy and too untried to be used in the modern era.”

In fact, in the motion currently before the district court, the Judiciary Committee dispensed with that option, contending that if it invoked its inherent power, the House would ultimately find itself arguing the contempt issue before the same court, but at a much later date, after the expected petitioning of the court by the defendants for habeas corpus.

The well-publicized, and apparently political, firings of nine federal prosecutors set off a firestorm of controversy in early 2007, and prompted months-long investigations by both congressional bodies — investigations the White House has done its best to thwart. In June, when the House Judiciary Committee issued subpoenas for documents and testimony from Bolten and Miers, the White House claimed a sweeping executive privilege over the information and barred the two from complying. The House responded in kind, voting on February 14 of this year to pursue criminal contempt charges against the aides — a move that White House spokesperson Dana Perino termed “a partisan, futile act”, and one, she said, that the Justice Department would not enforce.

In this, at least, the administration was true to its word: Jeffrey Taylor, U.S. Attorney for the District of Columbia, acted on the orders of the very White House that appointed him and refused to take up the case.

“This is a surprising obstruction of the process by [the administration],” said Jonathan Turley, an authority on constitutional criminal procedure and a law professor at George Washington University. “Many constitutional experts, including myself, have concluded that the Congress clearly has the better position. The White House has clearly overextended the scope of executive privilege.”

The Judiciary Committee is seeking a fairly narrow ruling from Judge Bates — one that would compel Miers to attend hearings before the committee, and order both Miers and Bolten to divulge the nature (though perhaps not the contents) of a bundle of undisclosed documents over which the White House is claiming executive privilege. But the civil filing is a legal maneuver without precedent, and therein lies the possibility exists that the White House could prevail despite experts’ view of its weak legal standing. Last year, as the contempt proceedings were just kicking off, the nonpartisan Congressional Research Service (CRS) released a report that assessed the legal landscape on which a civil suit by a congressional committee would play. “[T]here is a likelihood that a reviewing court will find no legal impediment to seeking civil enforcement of subpoenas or other committee orders,” the CRS found.

“The problem with going to court is that you risk a negative precedent,” explained Turley. And it’s a risk for both sides: On one level, Bates could simply decide that Congress has no standing to pursue the enforcement of contempt citations in a civil court, setting a precedent that could close the civil court avenue to Congress permanently. But if he doesn’t throw the case out altogether, and instead issues a ruling on the merits of the case, his decision will almost certainly be appealed by the losing side to the Circuit Court for the District of Columbia by the losing side, a process that could take the case to the Supreme Court.

Were the Judiciary Committee to be rebuffed, it would likely pursue as fast-moving an appeal as possible. The White House, by contrast, would be inclined to slow things down. “If the court agrees [with Congress], I suspect the White House will file an appeal…[based] on the calendar — not the issue,” said Turley. “I doubt Mukasey and the DoJ believe they have a case, but [the administration will be] simply trying to run out the clock.” Judge Bates has scheduled arguments to begin in the case on June 23.

If appeals have not been exhausted when this session of Congress ends in December, the defendants could plausibly contend that the subpoenas have expired, and that the matter should be closed, or at least readdressed from the start when the new Congress is seated (and a new White House has been staffed) in January, 2009. Not only would that let the Bush administration largely off the hook; it would leave the question of the legitimate scope of executive privilege unresolved.