Yesterday, we discussed the fact that the standard, statutory contempt of Congress procedure was probably inadequate to the task of enforcing the Democratic Congress' hard-won subpoena power:
The last time the Congress actually voted to hold an executive branch official in contempt of Congress was in the 1982 case of EPA Administrator Anne Gorsuch Burford. Gorsuch (who was later remarried, to Bureau of Land Management head Robert Burford) was found in contempt by a House vote of 259-105 (with 55 Republicans voting in favor). The charges were, in keeping with practice in statutory contempt cases, referred to the U.S. Attorney for the District of Columbia for prosecution.
And a lightbulb switches on! The actual prosecution of contempt of Congress charges is the responsibility of a U.S. Attorney.
What an extraordinary piece of bad luck, given the current situation!
A few astute commenters observed that Congress has another weapon in its arsenal for backing up the subpoena power: the long-dormant "inherent contempt" process, described below in the Congressional Research Service's "Congressional Oversight Manual" (PDF):
Under the inherent contempt power, the individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned. The purpose of the imprisonment or other sanction may be either punitive or coercive. Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least in the case of the House, beyond the adjournment of a session of the Congress) until he agrees to comply. The inherent contempt power has been recognized by the Supreme Court as inextricably related to Congress’s constitutionally-based power to investigate.
The most obvious benefit of inherent contempt is that it's conducted entirely "in-house," that is, entirely on the authority of the legislative branch. The most obvious drawback? Spending time on a trial. Well, that and the scene of having the Sergeant at Arms and the Capitol Police physically barred from entering the White House to arrest those who've defied subpoenas.
But is there another choice? What other power, besides impeachment, does the Congress have in its arsenal to enforce the "subpoena power" we were all told this election was about? There are no other direct options, only oblique approaches to using indirect leverage.
The next question, then, is whether or not anybody in Congress has bothered to think things through to this point, and begin preparing for this possibility. And here, I finally have some good news.
Rep. Brad Miller of North Carolina, in his capacity as chairman of the Science committee's Investigations and Oversight panel, has encountered the same sort of intransigence from the Bush "administration" that is threatened over the investigation into the U.S. Attorney firings. Only in the case of his investigation, involving the Department of Education, the "administration" hasn't even really done him the courtesy of making up an excuse for why they're not providing the requested documents. They're just not doing it.
So as Rep. Miller has become increasingly pessimistic about the chances that the "administration" will relent in his case, he's been consulting the same Congressional Oversight Manual, and was dismayed to learn that the enforcement options are indeed quite limited. Inherent contempt, he's discovered, is perhaps the only way Congress will be able to enforce its subpoena power with this "administration," and he's been talking with CRS experts to explore how a modern inherent contempt procedure might be established. Even better, he's been sharing that information with Rep. Linda Sanchez, chair of the Judiciary committee's Commercial and Administrative Law panel that's handling the subpoenas in the U.S. Attorneys matter.
Unfortunately, the current thinking among most Members of Congress is that the subpoena showdown will be settled in court. But as we discussed yesterday, that's highly unlikely. Rather, it seems most probably that the courts will dismiss such a case under the "political question doctrine," as they did in the Burford case in 1982.
Is there a stronger and more direct signal to send to the White House that the Congress is serious about its oversight authority than the one that would come from the House taking the time to dust off the inherent contempt concept, and establish a modern procedure for it? If so, I can't think of it.
At the very least, it's going to pay to be prepared sooner rather than later. Once those subpoenas are issued, it won't be long before we know precisely what the White House plans to do when the chips are down. And if we're sitting around looking at one another when the White House signals its final defiance, we're likely to lose a lot of momentum.
Let's face it: if the "administration" simply refuses to budge, the Congress either has to fold its tent and go home, or enforce on its own authority the subpoena power the American people voted for. Given that we've reached this impasse -- and we knew it was coming -- over an investigation into the hyper-partisan and hyper-politicized nature of the U.S. Attorneys, inherent contempt proceedings would appear to be the first and most direct resort of Congress in enforcing its mandate.
It would also appear to be the last stop short of impeachment. And with that remedy currently "off the table," Congress needs to speak -- and speak soon -- about how it intends to protect its prerogatives.