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By Frank Askin
Saturday,
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.
First is the inherent power of Congress to require testimony on matters
within its legislative oversight jurisdiction.
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
But no law says that indictment and prosecution by the Justice Department is
the exclusive means to enforce congressional prerogative.
Indeed, in an 1895 case ( United States v. Chapman), the defendant
unsuccessfully argued that Congress could not have such cases of contempt
prosecuted through the courts but must punish such defiance on its own, without
judicial assistance. The U.S.
Court of Appeals for the
This power of Congress to punish contemptuous behavior itself was reinforced
in 1934. In Jurney v. McCracken, the
Supreme Court denied a writ of habeas corpus to a petitioner who had been taken
into custody by the Senate sergeant- at-arms for allegedly destroying documents
requested in a Senate subpoena.
The limitation on the president's pardon power was most comprehensively
discussed in a 1925 opinion by Chief Justice (and former president) William
Howard Taft in the case of Ex Parte Grossman.
Grossman had been accused during Prohibition of the illegal sale of liquor
and was enjoined by a federal court from further sale of alcoholic beverages.
When he violated the order, he was accused of contempt and sentenced to prison
-- and then pardoned by the president.
Despite the pardon, a federal judge in Chicago
ordered him to jail on the theory that a charge of criminal contempt was not an
"offense against the
In an analysis of the pardon power that Taft traced back through English
parliamentary history, the opinion concluded that the power did reach contempts -- but only criminal contempts,
the purpose of which is to vindicate offenses against the dignity of public
authority.
The opinion distinguished civil contempt, whose purpose is to enforce a
third party's rights by coercing compliance with a court order.
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.
That was what was done in the landmark 1876 case Kilbourn
v. Thompson, when the Supreme Court ruled that Congress had overstepped its
bounds by investigating the private activities of the defendant in a matter in
which it had no jurisdiction.
That decision, however, left no doubt of Congress's power to punish for
contempt those who defy lawful investigations.
So, far from being defenseless against the president's refusal to prosecute
or the threat of presidential pardon, Congress could take into its own custody
defiant administration officials who refuse to cooperate with legitimate
inquiries into executive malfeasance. Those targets would have the right to
seek writs of habeas corpus from the federal courts, but as long as Congress
could show a legitimate need for the information it was seeking pursuant to its
legislative oversight functions, it would be standing on solid legal ground.
The writer, a professor at
