A Constitutional Conundrum

News: The House Judiciary Committee has taken its contempt of Congress fight to civil court, setting the stage for a legal battle that could redefine executive and congressional power.

By Brian Beutler / The Media Consortium / April 24, 2008

Overshadowed by a heated presidential-election battle and daily news of a sinking economy, a lawsuit that could change the shape of governmental power is making its way through U.S. District Court in Washington, D.C. The suit challenges the Bush administration’s attempt to flout contempt of Congress charges against one current and one former White House 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 having to rely on the Justice Department, which is part of the executive branch.

Attorney General Michael Mukasey recently blocked the Justice Department from prosecuting criminal contempt of Congress citations approved in February by the House of Representatives against White House chief of staff Josh Bolten and former White House counsel Harriet Miers. The two Bush aides, acting on White House orders, had refused to provide the House Judiciary Committee with testimony and documents regarding the firings of nine U.S. attorneys by the Justice Department under the watch of then-Attorney General Alberto Gonzales.

In Early April, the committee filed a suit in civil court. Many within the progressive 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.

The well-publicized, and apparently political, firings of nine federal prosecutors set off a firestorm of controversy in early 2007, prompting months-long investigations by both congressional bodies-investigations the White House has done its best to thwart. In June, when the House Judiciary Committee subpoenaed Bolten and Miers, the White House claimed a sweeping executive privilege and barred the two from complying. The House responded in kind, voting on February 14 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.

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 that the White House could prevail despite what experts view as a weak legal standing. Last year, however, as the contempt proceedings were just kicking off, the nonpartisan Congressional Research Service released a report that suggested a civil suit could move forward. “[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 to the Circuit Court for the District of Columbia by the losing side, a process that could take the case to the Supreme Court.

“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 the case is not settled by the time 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 must be readdressed from the start when the new Congress is seated (and a new White House has been staffed) in January 2009. In that case, not only will that let the Bush administration largely off the hook; it will also leave the question of the legitimate scope of executive privilege unresolved. [For the original article, go here to Mother Jones.]

Brian Beutler is the Washington correspondent for the Media Consortium, a network of progressive media organizations, including Mother Jones.