Are we heading for a constitutional showdown?
Sadly, and as many of us feared, Attorney General Mukasey seems to be following in his predecessor’s less than impressive footsteps when it comes to weakening an independent judiciary and bolstering the notion of a “unitary executive.”
Last week, Mukasey stated during a Congressional hearing that he would not enforce any contempt citations against members of the administration if the President had directed them not to appear before Congress. In this exchange with Rep. Robert Wexler (D-FL), Mukasey claims that there is “precedent” for his position, but is seemingly unable to cite any specific precedent:
Somewhat curious about the whole issue of Congress’s authority to issue subpoenas and contempt citations and what happens when a contempt citation is issued, I found two interesting reviews of the history of Congress’s authority and use of contempt citations:
- A Congressional Research Service (CRS) report entitled Congressional Investigations: Subpoenas and Contempt Power [pdf] from April 2003 prepared by Louis Fisher, Senior Specialist in Separation of Powers, Government and Finance Division, and
- A subsequent CRS report entitled Congress’s Contempt Power: Law, History, Practice, and Procedure [pdf] prepared in July 2007 and co-authored by Morton Rosenberg, Specialist in American Public Law, American Law Division and Todd B. Tatelman, Legislative Attorney, American Law Division. This report was prepared during the time when Bush had directed then-White House chief of staff Joshua B. Bolten and then-White House counsel Harriet E. Miers not to appear before Congress despite being subpoenaed as part of the House’s investigation into the dismissal of nine U.S. attorneys.
I’m still working my way through the two reports, but Jonathan Turley offered his take on the situation earlier today:
The U.S. attorney for the District of Columbia, Jeffrey Taylor, has been ordered not to enforce the contempt citations if approved by Congress. This would set up an interesting fight. Congress is most likely to go to court to try to get an order compelling prosecution. However, there remains an older option. Congress can take matters into its own hands and use the power of “inherent contempt.†Under this approach, it could hold its own trial of these individuals. Historically, it would not only try such individuals but arrest them.
Individuals were once arrested by the Sergeant-at-Arms for the House or Senate. They were dragged to one of the house floors (it is purely a matter for each individual house) and made to answer for the charges. This became too time-consuming so Congress created that statutory process of referral in 1857. Congress last used inherent contempt in a 1934 Senate action involving a one-week trial on the Senate floor. William P. MacCracken, a lawyer and former Assistant Secretary of Commerce for Aeronautics, was found guilty and sentenced to 10 days imprisonment. The trial was notably upheld by the Supreme Court in Jurney v. MacCracken.
Later in the day, the House — sans numerous Republicans who walked out before the vote in protest — voted to hold Bolten and Miers in contempt of Congress (see Roll Call No. 60 to see how your Representative voted; there were two resolutions being voted on as a single item). The measure (H.Res.980) calls for House officials to seek enforcement of the contempt citation by the courts if the Justice Department declines to act on the resolution:
Resolved, That the Chairman of the Committee on the Judiciary is authorized to initiate or intervene in judicial proceedings in any Federal court of competent jurisdiction, on behalf of the Committee on the Judiciary, to seek declaratory judgments affirming the duty of any individual to comply with any subpoena that is a subject of House Resolution 979 issued to such individual by the Committee as part of its investigation into the firing of certain United States Attorneys and related matters, and to seek appropriate ancillary relief, including injunctive relief.
Sec. 2. The Committee on the Judiciary shall report as soon as practicable to the House with respect to any judicial proceedings which it initiates or in which it intervenes pursuant to this resolution.
Sec. 3. The Office of General Counsel of the House of Representatives shall, at the authorization of the Speaker, represent the Committee on the Judiciary in any litigation pursuant to this resolution. In giving that authorization, the Speaker shall consult with the Bipartisan Legal Advisory Group established pursuant to clause 8 of Rule II.
In light of Mukasey’s statements last week, that appears to be the route they will have to pursue.
