Over the past few months Kagro X (and I'm sure others) have been working to increase awareness of the inherent contempt power that Congress possesses. This is one of the few powers Congress has that is not subject to checks by the other branches of government. As such, it is also one of the few weapons we have left to uncover the truth. What follows is a discussion of the use of inherent contempt for Harriet Miers' refusal to testify. This scenario begins after the House has moved on inherent contempt.
And it begins right after the fold ...
So, a witness has refused to answer a subpoena. Rather than come to Congress and invoke executive privilege, or use the "I don't recall" defense, the witness has chosen not to show at all. Note that courts don't normally hear petitions to quash Congressional subpoenas. The committee that subpoenaed the witness will then have the option of invoking contempt charges. If a contempt citation is issued, the witness is the arrested and charged with a crime, and is punished by the House.
The Sergeant at Arms does the arresting. Along with the Capitol Architect, the two Sergeants (one for each chamber) sit on the board that heads the Capitol Police. Thus the Capitol Police would most likely be the agency with custody of the prisoner. The Capitol Police have jurisdiction over the area surrounding the Capitol buildings. However, there have been cases (Kagro mentioned one in Ohio several times) where someone was arrested for contempt outside of the jurisdiction of the Capitol Police. This hasn't been done in a very long time though, so not much relevant precedent exists.
In the most narrow interpretation of the authority of the Sergeant at Arms to enforce the contempt citation, the witness would be unable to travel into parts of DC near the Capitol buildings (the jurisdiction of the Capitol Police) In the most broad interpretation, the witness could be arrested anywhere in the US. Following arrest, the witness would most likely be housed in the Capitol jail. The Capitol jail is run by the municipal government of the District of Columbia. Astute observers might expect the federal government to have control over the Municipal government, since DC is a federal district. They would be right, Congress has Constitutional authority to govern the District (for whatever that's worth nowdays).
So, short of storming the jail (which would provoke a very different Constitutional Congress) the only recourse the witness (or Bush) would have (short of actually telling the truth) would be to go to court. A habeas petition was denied for the last person imprisoned under inherent contempt (the Postmaster General in the 30s) and any sane court would punt the question (declare it political and non-judicable) This leaves the pardon power. A convincing argument can be made (and is made in that diary) that pardons cannot affect the inherent contempt power of Congress when used for coercive reasons (i.e. to convince someone to testify). Basically, since the power given to the President is to be used for federal crimes, if the witness is being held for defying not the law of the land but merely the order of Congress, they are not being held on a criminal charge. I'm oversimplifying, and I suggest reading Kagro's diary on the subject (linked above).
One of the key benefits of inherent contempt is that it makes the judicial branch work for us. Many many times on this site the idea of "running out the clock" has been referenced with respect to Republican attempts to decide everything in the courts. Courts are slow, and delay tactics work to Bush's advantage. The beauty of inherent contempt is that time is on our side then. Unless an emergency injunction can be won (and someone with more law experience than I will have to discuss that) every day that the courts spend on the issue is a day that the witness gets to think about how easy it would be to testify.
It appears that Bush et al have no legitimate authority on which to challenge inherent contempt. So how would this play out publicly? Many have said that "locking up old ladies" will play badly in the court of public opinion. I have a different take. Thanks to television, most Americans are familiar with the basic concepts of law. I would be willing to bet that more Americans can explain what a subpoena is than can find Iraq on a map. The concept of "defy subpoena, go to jail" is pretty simple to understand. I don't think this would be the disaster some are predicting.
Regardless of what happens, moving forward on inherent contempt is dangerous. Nevertheless, myself, and many others here, are convinced that allowing the Unitary Executive™ to go unchecked is a worse alternative. Moving forward may very well provoke a Constitutional Crisis, but not moving forward could mean the end of our Constitution.