Here's my thesis statement:
The President cannot pardon someone who is being held on the basis of inherent contempt of a house of Congress.
That's my considered opinion, at least. I've passed on my opinion on this issue in various diaries on the topic, from Kagro X's must-read story last night addressing the question head on to Hunter's story today on Harriet Miers's refusal, at Bush's insistence and on Fred Fielding's advice, to show up and honor a Congressional subpoena. But I think that this is worth its own diary. It's beginning to look like inherent contempt -- the ability of Congress, not exercised for over 70 years, to imprison someone on its own authority to compel their testimony -- is going to be the only way to oppose the Bush Administration's flouting of the checks and balances system before we end up having to decide whether to impeach on the ground of obstruction of justice.
UPDATE: Please see Elwood Dowd's related diary here and, if you missed it, Patriot Daily's excellent front-paged diary of last weekend here for additional background into inherent contempt, plus too many of Kagro X's stories to link. ADDED: TerribleTom offered a great primer back in March as well.
I'm writing this diary as if I know the above thesis statement to be a fact. I don't. Sometimes, where lawyers are addressing cases of first impression -- ones where no statute or regulation or court has spoken to a given circumstance -- we just have to do our best with the standard tools of the profession to come to a conclusion. There could be case law out there that would convince me that the assertion I'm making is incorrect -- and this diary, if people read it, may flush that information out -- but I don't expect to find it. While the Roberts Court may twist heaven and earth to arrive at the result it wants, I think that the language of the Constitution regarding Presidential pardons is clear.
Here's what Article II, Section 2, Clause 1 of the Constitution has to say about Presidential Pardons:
The President ... shall have power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
I've written previously -- again expressing my own fallible opinion about matters that have never been litigated -- on the possible limitations on the Pardon power imposed by the final five words of this clause, "except in Cases of Impeachment." This diary is about the five words before that: "Offenses against the United States."
Bush can pardon someone for all offenses against the United States. That would include statutory contempt against Congress, which is a criminal offense under federal law and thus an offense against the United States. In almost all imaginable cases, statutory contempt suffices for the purpose of impelling testimony to Congress. The only time is would be insufficient -- assuming the contemnor has not fled to someplace beyond reach -- is if the DOJ will not pursue a valid subpoena or if President will pardon the contemnor. That's a rare, and should be pretty much unheard-of and beyond-the-pale, occurrence. Yet that's the prospect that the pardon-happy President has placed us today.
As Kagro X has explained often and at length (search the "inherent contempt" tag for his stories), inherent contempt is a process that occurs entirely within the legislative branch. It doesn't depend on anyone approving the basis for the contempt citation in advance. It would presumably be subject to habeas corpus -- if Bush has left that much of the law in place -- but that would occur after the fact, and during the pendency of such a hearing the contemnor would remain incarcerated. The DOJ can't block it; no judge would have to be convinced of its appropriateness in advance. The only question has been: can the President short-circuit the inherent contempt process with a pardon.
I say he can't, and the reason is in those five words cited above.
The Senate is not "the United States."
The House of Representatives is not "the United States."
In voting for inherent contempt, these bodies are not responding to "offenses against the United States." They are responding to offenses against the bodies themselves. The Senate punishes contempt for the Senate subpoena process, not the nation. Likewise the House of Representatives.
Because the incarceration in question would not be predicated on an "offense against the United States," the President's pardon power cannot reach it, no more than it can reach a state crime that is under the purview of a Governor.
Harriet Miers -- and whoever else -- can stay in jail until they honor the subpoena or convince a court to grant habeas corpus based on the notion that the President's pardon power extends further than the plain language of the Constitution indicates. We actually do hold the winning hand this time.