Sunday, July 29, 2007

Congress's inherent contempt power needs to be revived

McClatchy has a nice analysis today on Congress's options for moving forward to enforce its prerogatives in multiple confrontations with the executive branch: action on Gonzales's lies and perjury and Miers and Bolten's contempt, and Rove's subpoena. Basically, their list of options includes:

1. filing a lawsuit for criminal contempt;
2. filing a lawsuit for declaratory judgment;
3. filing a lawsuit for civil contempt;
4. conduct their own trial in the House under Congress's inherent contempt power;
5. pass new legislation.

Obviously, new legislation is a non-starter since it would require veto-proof majorities in both houses. Each of the three court options has different degrees of pros and cons. I like what Senator Sheldon Whitehouse has to say about these - he's against the common idea to keep pussyfooting around:

"My personal feeling is that we should take it as far as it goes and get the question answered so we’re not guessing... If the answer isn’t satisfactory to us, we can change the laws, change the rules and figure out what the best way to address it is. The posturing back and forth has not proven effective or helpful to the American people who want to know what the heck is happening in the Department of Justice."

They also quote a law professor, Steve Vladeck, who is perfectly right, that the option of inaction would debase Congress and erode its powers:
"For Congress to do nothing strikes me as a dangerous precedent itself, because it would suggest in future cases that the executive branch can basically forestall serious oversight through coercion... I don’t like the idea that one branch can basically scare the other one off."

They also quote a former House counsel on the conventional wisdom on Congress's inherent contempt power: that it would be unseemly and cumbersome.

However, what is unseemly, and unnecessarily weak, is for Congress to feel the need to take this to court. Miers and Bolten have committed contempt of Congress; Rove will too if he fails to show up. Gonzales has committed contempt of Congress with his lies and perjury. Congress has the authority, and the compelling need, to enforce its own prerogatives and dignity, on its own. Establishing the offices of Sergeant at Arms (initially under other names) was one of the very earliest acts of both the House and the Senate in 1789. "The Sergeant at Arms is authorized to arrest and detain any person violating Senate [or House] rules, including the President of the United States." The House could and should look no further than their own inherent power to enforce their own rules, and have the Sergeant at Arms arrest and detain Harriet Miers and Josh Bolten, and anyone else who thumbs their noses at a subpoena from the Congress of the United States, until they feel like being more cooperative. If the executive branch has a problem with that, let them file a lawsuit, and see where it gets them.

Any action short of that, including running to the courts, would be an unnecessary surrender of Congress's own power. Congress is the closest branch to the People of the United States; they are Article #1 for a good reason.

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