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Those who read dailykos.com regularly have doubtless noted that it serves as NPR radio news used to in the 1980s: with a greater or lesser lead time, its content forecasts the narratives that will later appear in the corporate media. Numerous examples will readily spring to the minds of the attentive, but the one focused on here is the story of Congress’ inherent power to enforce its judgment of a witness’ state of contempt without reference to either the Executive or the Judicial branches of government.

This site has been in the forefront of debunking the notion that Congressional subpoena power does not extend to the Executive branch. With a plethora of strong lead stories and diaries too numerous to cite here, Kossacks have disputed Administration assertions that Justice Department refusal to enforce any citations for contempt of Congress summarily ends the matter.

As it does not appear (after cursory examination) that any diarist has extensively analyzed the July 24 Congressional Research Service (CRS) report, Congress’s Contempt Power, such a lamentable absence will be remedied here. The underlying thesis of this diary is that House Judiciary Chairman John Conyers and Senate Judiciary Chairman Patrick Leahy will both be influenced, if not actually guided, by the extensive findings of the CRS research. CRS is nothing if not thorough, and there is not likely to be any precedent they overlooked, interpretation that they failed to include, or conclusion that they omitted to indicate.

Thus Kossacks should end up with a roadmap of how the Congressional contempt issue is likely to play out long before most of the moves on the board occur. We may then advance to accompanying the later stages of MSM breathless immediacy with the yawns they will deserve, saying to ourselves, "Well, we sure saw that one coming."

It may be protested that the analyst is not a constitutional lawyer (nor even a lawyer at all); and nor does he play one on the radio. He does, however, have forty years’ academic and employment experience at analyzing various kinds of texts and deriving estimates of present or future behavior from them. Even in anticipation of subsequent, fuller scrutiny of the contempt issue by legal experts and journalistic bigfeet, it could properly be hazarded that not all the inferences drawn by the present writer will be found erroneous. In any case, they will do to be getting along with.

The procedure followed will be to cite an abridgement of the full text in blockquotes and then append a brief commentary following each citation. Note that the original is some 96 pages long and we’re down to about 19 here, using M$ Word’s despicable methodologies. Almost all of the nearly 400 footnotes are omitted, and much of the close reasoning from case law and precedent. However, the overall thrust has been retained and, the author trusts, clarified. In the interest of ease of reading, use of ellipses and brackets to indicate omissions is not up to academic standards.

The report is entitled Congress’s Contempt Power: Law, History, Practice, and Procedure and was authored by Morton Rosenberg, Specialist in American Public Law, American Law Division, CRS, and Todd B. Tatelman, Legislative Attorney, American Law Division, CRS. The full text is here.

Summary
In the last seventy years the contempt power has generally been employed only in instances of refusals of witnesses to appear before committees, to respond to questions, or to produce documents.

For Rethugs on drugs, that means that the modern Congressional contempt power is used under exactly the circumstances we face today in the matters of getting straight stories on the firings of US Attorneys from Attorney General Alberto Gonzales and current and former White House staffers Karl Rove, Josh Bolten, Harriet Miers, Monica Goodling and others.

Introduction
Congress's contempt power is the means by which Congress responds to certain acts that in its view obstruct the legislative process. Contempt may be used either to coerce compliance, punish the contemnor, and/or to remove the obstruction.

This report examines the source of the contempt power, reviews the historical development of the early case law, outlines the statutory, common law, and constitutional limitations on the contempt power, and analyzes the procedures associated with each of the three different types of contempt proceedings (inherent contempt, statutory criminal contempt, and statutory civil contempt).

Certain Republican advisory opinions from the White House Office of Legal Counsel slant the issue in favor of unchecked Presidential power to order his subordinates to refuse Congressional subpoenas. In contrast, the CRS report fully and fairly explores both sides of each assertion of Congressional contempt power going back to 1795 and forward to 1996. CRS is not trying to argue a thesis but to substantiate the record of what has gone before in every historical instance of Congressional contempt.

Congress’s Power to Investigate
The power of Congress to punish for contempt is inextricably related to the power of Congress to investigate. While there is no express provision of the Constitution or specific statute authorizing the conduct of congressional oversight or investigations, the Supreme Court has firmly established that such power is essential to the legislative function as to be implied from the general vesting of legislative powers in Congress.

In McGrain v. Daugherty, which arose out of the exercise of the Senate’s inherent contempt power, the Supreme Court described the power of inquiry, with the accompanying process to enforce it, as "an essential and appropriate auxiliary to the legislative function."

In Sinclair v. United States, a different witness at the [Teapot Dome] congressional hearings refused to provide answers, and was prosecuted for contempt of Congress. The Supreme Court upheld the witness’s conviction for contempt of Congress. The Court further explained that: "[i]t may be conceded that Congress is without authority to compel disclosure for the purpose of aiding the prosecution of pending suits; but the authority of that body, directly or through its committees to require pertinent disclosures in aid of its own constitutional power is not abridged because the information sought to be elicited may also be of use in such suits."

Subsequent Supreme Court rulings have consistently reiterated and reinforced the breadth of Congress’s investigative authority. For example, in Eastland v. United States Servicemen’s Fund, the Court explained that "[t]he scope of [Congress’s] power of inquiry ... is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution."

  1. 421 U.S. 491, 504, n. 15 (1975) (quoting Barenblatt v. United States, 360 U.S. 109, 111 (1960)).

Congress’s investigative power is at its peak when the subject is alleged waste, fraud, abuse, or maladministration within a government department. "[T]he Court recognized the danger to effective and honest conduct of the Government if the legislative power to probe corruption in the Executive Branch were unduly hampered."

The inherent contempt power is not specified in a statute or constitutional provision, but has been deemed implicit in the Constitution's grant to Congress of all legislative powers. In an inherent contempt proceeding, the offender is tried at the bar of the House or Senate and can be held in custody until such time as the contemnor provides the testimony or documents sought.

In the above section, specific grounding of contempt as an enforcement proper to the Legislature against the Executive is shown to be indisputable. The Supreme Court decision cited by footnote number 13 is lots of fun. It indicates in direct words only a Scalia or Roberts could twist – though they are unlikely to have an effective opportunity to do so – that inquiry is as central to Congress as making laws or appropriations.

Early History of Congressional Contempt
[R]ecords indicate that almost no question was raised with respect to the power of Congress to punish a non-Member for contempt. According to one commentator, who noted that many of the Members of the early Congress were also members of the Constitutional Convention and, thus, fully aware of the legislative practices of the time, it was "substantially agreed that the grant of the legislative power to Congress carried with it by implication the power to punish for contempt."

The Court noted that while the Constitution does not explicitly grant either House of Congress the authority to punish for contempt, except in situations involving its own Members, such a power is necessary for Congress to protect itself. The Court asserted that if the House of Representatives did not possess the power of contempt it would "be exposed to every indignity and interruption, that rudeness, caprice, or even conspiracy, may meditate against it."

The Court’s decision in Anderson does not define the specific actions that would constitute contempt; rather, it adopted a deferential posture, noting that: "it is only necessary to observe that there is nothing on the facts of the record from which it can appear on what evidence the warrant was issued and we do not presume that the House of Representatives would have issued it without fully establishing the facts charged on the individual."

The Anderson decision indicates that Congress’s contempt power is centered on those actions committed in its presence that obstruct its deliberative proceedings.

[I]n McGrain v. Daugherty, which involved a Senate investigation into the claimed failure of the Attorney General to prosecute certain antitrust violations, a subpoena was issued to the brother of the Attorney General, Mallie Daugherty, the president of an Ohio bank. When Daugherty refused to comply, the Senate exercised its inherent contempt power and ordered its Sergeant-at-Arms to take him into custody.

The grant of a writ of habeas corpus was appealed to the Supreme Court. The Court’s opinion in the case considered the investigatory and contempt powers of Congress to be implicit in the grant of legislative power. The Court distinguished Kilbourn, which was an investigation into purely personal affairs, from the instant case, which was a probe of the operation of the Department of Justice. According to the Court, the subject was plainly "one on which legislation could be had and would be materially aided by information the investigation was calculated to elicit."

In this section the researchers show further evidence that Congressional power to compel witnesses to testify with the sanction of contempt proceedings if they do not do so is indistinguishable from the power to investigate. What they are doing is stripping away every vestige of possible argument that Congress would be overstepping its bounds if it cited non-cooperating (or, in my favorite 18th century word from this document, "contumacious") Administration officials for contempt; it has done so in the past and may, by inference, do so again.

Inherent Contempt
Congress’s inherent contempt power is not specifically granted by the Constitution, but is considered necessary to investigate and legislate effectively. The validity of the inherent contempt power was upheld in the early Supreme Court decision in Anderson v. Dunn and reiterated in McGrain v. Daugherty. 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 in the Capitol jail. The purpose of the imprisonment or other sanction may be either punitive or coercive.

When a witness is cited for contempt under the inherent contempt process, prompt judicial review appears to be available by means of a petition for a writ of habeas corpus. In such a habeas proceeding, the issues decided by the court might be limited to (a) whether the House or Senate acted in a manner within its jurisdiction, and (b) whether the contempt proceedings complied with minimum due process standards.

In comparison with the other types of contempt proceedings, inherent contempt has the distinction of not requiring the cooperation or assistance of either the executive or judicial branches. The House or Senate can, on its own, conduct summary proceedings and cite the offender for contempt. Furthermore, although the contemnor can seek judicial review by means of a petition for a writ of habeas corpus, the scope of such review may be relatively limited, compared to the plenary review accorded by the courts in cases of conviction under the criminal contempt statute.

[I]nherent contempt has been described as "unseemly," cumbersome, time-consuming, and relatively ineffective, especially for a modern Congress with a heavy legislative workload that would be interrupted by a trial at the bar. Because of these drawbacks, the inherent contempt process has not been used by either body since 1935. Proceedings under the inherent contempt power might be facilitated, however, if the initial fact-finding and examination of witnesses were to be held before a special committee – which could be directed to submit findings and recommendations to the full body – with only the final decision as to guilt being made by the full House or Senate. Although generally the proceedings in inherent contempt cases appear to have been conducted at the bar of the House of Congress involved, in at least a few instances proceedings were conducted initially or primarily before a committee, but with the final decision as to whether to hold the person in contempt being made by the full body.

We see here that 18th, 19th and 20th century Supreme Court decisions have substantiated the inherent contempt powers of Congress and that neither Executive nor Judicial Branches are involved in its operation. This one is going to be very hard to swallow over at the Faux News outlet for Karl Rove’s talking points, but swallow it they ultimately will. The Preznit’s head is simply going to explode when they finally explain it to him.

Inherent Contempt Proceedings By Committees of Congress
[H]istory, when combined with a 1993 Supreme Court decision addressing the power of Congress to make its own rules for the conduct of impeachment trials, strongly suggests that the inherent contempt process can be supported and facilitated by the conduct of evidentiary proceedings and the development of recommendations at the committee level.

Actually, the consideration of the use of committees to develop the more intricate details of an inquiry into charges of contempt of Congress date back to the very first inherent contempt proceedings of Messrs. Randall and Whitney in 1795.

[D]uring the very first exercise of Congress’s power of inherent contempt, the House allowed for the possibility that at least some of the proceedings could occur before a committee, rather than at the bar of the House.

[I]n 1865, the House adopted the following resolution authorizing a select committee to conduct an examination of the charges: "Be it Resolved, That a select committee of five members be appointed by the Speaker to inquire into the said alleged breach of privilege; that the said committee have power to send for persons and papers, and to examine witnesses; and that the committee report as soon as possible all the facts and circumstances of the affair, and what order, if any, it is proper for this House to take for the vindication of its privilege, and right, and duty of free legislation and judgment."

During the debate on the resolution it was observed that proceeding in this manner would avoid a trial by the full House, which, in the words of one Member, "would consume a great amount of the public time which there is a pressing need to apply to the business of the Government, it is better that the course should be adopted which is contemplated by the resolution ...."

The predictive power of this excerpted segment is extraordinary. What is probably going to happen is that both House and Senate special committees will be authorized by the majorities of the full House and Senate to determine whether contempt of Congress has occurred in previous Judiciary Committee testimony, and then refer the determination to the full House and Senate for an up or down majority vote on the question. Thus, a committee (rather than the full House or Senate) will indict and the full House or Senate will convict, or not. Watch and see if it be not so.

Nixon v. United States. In 1993 the Supreme Court decided United States v. Nixon.

[This was an unfortunately-named, impeached federal judge, not the ex-President who should have been impeached.]

The Court’s affirmation of the Senate’s procedures with respect to the appointment of select committees for impeachment trials clearly indicates that the use of committees for contempt proceedings – whether they be standing legislative committees, or select committees created by resolution for a specific purpose – is a permissible exercise of each House’s Article I, section 5 rulemaking power. As such, it would appear that one of the suggested reasons for the apparent abandonment of the use of Congress’s inherent contempt power, namely, that it became to cumbersome and time consuming to try contemptuous behavior on the floor of the body, is no longer compelling. The ability to utilize the committee structure for trials, evidentiary hearings, and other procedural determinations appears to be supported not only by the historical records of previous contempt proceedings, but also by the Court’s decision in Nixon.

[D]eference to Congress in establishing its own rules and procedures is consistent with the more recent decision in Nixon. Thus, it would appear that while there is no definitive answer to the question of what rights the committee hearing a contempt proceeding would be required to afford, so long as the minimum protections of notice and opportunity to be heard are provided, the courts, it seems, will not interfere with Congress’s decisions regarding proper procedure.

A review of early exercises of inherent contempt indicates that the following procedures have been established: attachment by the Sergeant-at-Arms; appearance before the bar; provision for specification of charges; identification of the accuser; compulsory process; provision of counsel; a hearing; determination of guilt; and imposition of a penalty. [I]t would seem reasonable to conclude that any inherent contempt proceeding that conforms with these traditions would likely satisfy judicial review.

So there you have it. Tomorrow’s news today. Well, this fall’s news this summer. No matter how they try to wiggle, protest and evade it, the haling before Congress of reluctant Administration witnesses will follow the script outlined above. In summary, there will be arrest by direct Congressional authority through one of its functionaries; trial; and, upon conviction, coercion until the contempt is purged by testimony. False testimony would, of course, open the official to perjury charges. The careful preparation by Chairmen Leahy and Conyers indicates that no procedural omission is going to stand in the way of the thorough and inevitable operation of the law, not as administered by the executive nor interpreted by the judiciary, but as established by and for Congress itself, with appropriate Supreme Court reviews over the span of two centuries. You can take it to the bank.

Statutory Criminal Contempt
Between 1795 and 1857, 14 inherent contempt actions were initiated by the House and Senate, eight of which can be considered successful in that the contemnor was meted out punishment, agreed to testify or produce documents. Such inherent contempt proceedings, however, involved a trial at the bar of the chamber concerned and, therefore, were seen by some as time-consuming, cumbersome, and in some instances ineffective.

In 1857, a statutory criminal contempt procedure was enacted, largely as a result of a particular proceeding brought in the House of Representatives that year. The statute provides for judicial trial of the contemnor by a United States Attorney rather than a trial at the bar of the House or Senate. It is clear from the floor debates and the subsequent practice of both Houses that the legislation was intended as an alternative to the inherent contempt procedure, not as a substitute for it.

With only minor amendments, those statutory provisions are codified today as 2 U.S.C. §§ 192 and 194, which state: "Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than [$100,000] nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months."

"Whenever a statement of fact constituting such failure is reported to and filed with the President of the Senate or the Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of the House, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action."

The legislative debate over the criminal contempt statute reveals that it was prompted by the obstruction of a House select committee’s investigation into allegations of misconduct that had been made against several Members of the House of Representatives.

It remains unclear whether the "duty" of the U.S. Attorney to present the contempt to the grand jury is mandatory or discretionary. The case law that is most relevant to the question provides conflicting guidance.

Despite the clarity of the record that statutory criminal contempt was an augmentation to, not a replacement of, inherent contempt, the Roberts Court would doubtless find a way to prevent its use against White House and Justice Department misfeasants (unless they were Democrats.) Therefore, you may take it as read that no criminal contempt charges are going to be brought by those wily birds Conyers and Leahy. This section of the report hints that the criminal contempt option is legally defensible but, under the circumstances of a politicized Court, remains unlikely to be pursued. However, since the inherent contempt power is so strong, the unavailability of the criminal mechanism makes no practical difference. This cannot be stressed too strongly.

The Position of the Department of Justice on the Use of Inherent and/or Criminal Contempt of Congress Against the Executive Branch
The Department of Justice (DOJ) has taken the position that Congress cannot, as a matter of statutory or constitutional law, invoke either its inherent contempt authority or the criminal contempt of Congress procedures against an executive branch official acting on instructions by the President to assert executive privilege in response to a congressional subpoena. This view is most fully articulated in two opinions by the DOJ’s Office of Legal Counsel (OLC) from the mid-1980s, and has been the basis of several recent claims with respect to pending congressional investigations.

The 1984 opinion focuses almost exclusively on the criminal contempt statute, as that was the authority invoked by Congress in the Superfund dispute. In a brief footnote, however, the opinion contains a discussion of Congress’s inherent contempt power, summarily concluding that the same rationale that makes the criminal contempt statute inapplicable and unconstitutional as applied to executive branch officials apply to the inherent contempt authority.

The 1986 OLC opinion reiterates the 1984 reasoning adding the observation that the power had not been used since 1935 (at that time over 50 years), and that "it seems unlikely that Congress would dispatch the Sergeant-at-Arms to arrest and imprison an executive branch official who claimed executive privilege."

Factual, legal, and constitutional aspects of these OLC opinions are open to question and potentially limitations. For example, with respect to the argument that a U.S. Attorney cannot be statutorily required to submit a contempt citation to a grand jury, despite the plain language of the law, such a statement appears to be analogous to a grant of so-called "pocket immunity" by the President to anyone who asserts executive privilege on his behalf.

While it is true that the President can immunize persons from criminal prosecution, it does not appear that he has authority to immunize a witness from a congressional inherent contempt proceeding. Arguably, an inherent contempt proceeding takes place wholly outside the criminal code, is not subject to executive execution of the laws and prosecutorial discretion, and thus, appears completely beyond the reach of the executive branch.

Thus, a finding of inherent contempt against an executive branch officials does not appear to be subject to the President’s Pardon power – as an inherent contempt arguably is not an "offense against the United States," but rather is an offense against a House of Congress.

[T]he contempt statute was not intended to preclude the House’s ability to engage in oversight of the executive branch.

Finally, OLC’s contention that the criminal contempt statute has only been used once, in the Burford/Superfund dispute, appears to be based on the fact that the contempt of Anne Burford was the only contempt voted on by the full House of Representatives. Significantly, prior to the Superfund dispute, committees and subcommittees of the House of Representatives had voted contempt citations against Secretary of State Henry Kissinger (1975); Secretary of Commerce Rogers C. B. Morton (1975); Secretary of Health, Education, and Welfare Joseph A. Califano, Jr. (1978); Secretary of Energy Charles Duncan (1980); Secretary of Energy James B. Edwards (1981); Secretary of the Interior James Watt (1982), and Attorney General William French Smith (1983). Since the Superfund dispute, contempt citations have been voted against White House Counsel John M. Quinn (1996) and Attorney General Janet Reno (1998). In every instance, save for John M. Quinn, a claim of executive privilege was asserted, and in each instance there was either full or substantial compliance with the demands of the committee that had issued the subpoena.

These statements by CRS are deliciously strong, again placing contempt of Congress outside the purview of the executive branch. The Preznit can’t even pardon contempt of Congress. And modern usage has seen many a committee issue contempt citations to Executive officials and withdraw them only when the witness complied. In the present instance there is, of course, no chance of any Bushite witnesses complying with anything other than their master’s will without the exertion of some external force. So far the administration has asserted the right to block all compliance. But this report shows that those assertions are not only shaky in themselves, but are simply beside the point if Congress as a whole votes and follows through on contempt. The possibility of the Senate minority filibustering to prevent a contempt vote, while the House has passed and enforced contempt citations, is one I cannot wait to see televised. I suspect Senate Majority Leader Harry Reid and Leahy’s spines are so stiff they would make the Republicans filibuster until the 2008 elections.

Civil Contempt
Civil Contempt in the Senate. As an alternative to both the inherent contempt power of each House and the criminal contempt statutes, in 1978 Congress enacted a civil contempt procedure, which is applicable only to the Senate.

211 As the statute makes clear, a party refusing to obey the court’s order will be in contempt of the court, not of Congress itself. 28 U.S.C. § 1364(b) (2000); see also S. Rept. No. 95-170, 95th Cong., 1st Sess., 41, 92. It is also worth noting that the Senate has in place a standing order, adopted in 1928, that appears to provide the authority, independent of the civil contempt statute, for a committee to seek a court order to enforce its subpoenas. The standing order states that: "Resolved, That hereafter any committee of the Senate is hereby authorized to bring suit on behalf of and in the name of the United States in any court of competent jurisdiction if the committee is of the opinion that the suit is necessary to the adequate performance of the powers vested in it or the duties imposed upon it by the Constitution, resolution of the Senate, or other law. It is unclear what effect, if any, the passage of the civil contempt procedure in 1978 has had on this Standing Order. The Standing Order appears to have never been invoked and, therefore, its validity remains an open question.

213 Not only do the inherent and criminal contempt procedures remain available as an alternative to the civil contempt mechanism, but the legislative history indicates that the civil and criminal statutes could both be employed in the same case.

Without affecting the right of the Senate to institute criminal contempt proceedings or to try an individual for contempt at the bar of the Senate, this procedure gives the Senate the option of a civil action to enforce a subpoena.  Civil contempt might be employed when the Senate is more concerned with securing compliance with the subpoena or with clarifying legal issues than with punishing the contemnor. Unlike criminal contempt, in a civil contempt sanctions (imprisonment and/or a fine) can be imposed until the subpoenaed party agrees to comply thereby creating an incentive for compliance; namely, the termination of punishment.

Civil Contempt in the House of Representatives. While the House of Representatives cannot pursue actions under the Senate’s civil contempt statute discussed above, there are numerous examples of the House, by resolution, affording special investigatory committees authority not ordinarily available to its standing committees.

The combination of broad subpoena authority that expressly encompassed the White House, and the ability to make "any applications to court," arguably suggests that the House contemplated the possibility that a civil suit seeking enforcement of a subpoena against a White House official was possible.

[W]while the House select committee did not attempt to seek judicial enforcement of any of its subpoenas, the authorization resolution did not preclude the possibility.

[W]hile there is no record to indicate that any of these committees utilized their authority to participate in judicial proceedings to bring a civil subpoena enforcement action, the resolution language appears to indicate that such a suit was authorized by the full House.

It therefore remains unclear whether the existing statutory language for jurisdiction can be definitively said to be inadequate. Rather, the limited Supreme Court and other federal court precedent that exists may be read to suggest that the current statutory basis is sufficient to establish jurisdiction for a civil action of the type contemplated here if the representative of the congressional committee is specifically authorized by a House of Congress to act.

It appears possible to argue that a specifically authorized congressional committee may bring a civil action to enforce a subpoena using 28 U.S.C. § 1331 as a basis for federal question jurisdiction. Such an argument has been suggested by the district court in Waxman v. Thompson.

As neither AT&T, Ashland Oil, nor In Re Beef raised any questions regarding the jurisdiction of the federal courts, it appears possible to argue that all that is legally required for committees, the House General Counsel, or a House-retained private counsel to seek civil enforcement of subpoenas or other orders is that authorization be granted by resolution of the full House.

[I]t may be plausibly argued that if an authorization resolution by the House can be obtained there is a likelihood that a reviewing court will find no legal impediment to seeking civil enforcement of subpoenas or other committee orders.

Footnotes 211 and 213 are tasty morsels, hence their inclusion here. Taken together with the rest of the excerpts in this section, they indicate Congress’ ability to enforce its contempt citations through the civil court mechanism alone, or civil and criminal both, if it chooses. The Senate has a specific, recent civil contempt mechanism (violation of which happens to be unpardonable by the Preznit) and the House has general powers the Supreme Court is likely to uphold. And all this is a separate path from the inherent contempt mechanism.

Non-Constitutional Limitations

Authorization and Jurisdiction. It appears that the clear articulation of committee jurisdiction in both the House and Senate rules combined with the express authorization of special committees by resolution has effectively eliminated the use of jurisdiction as a defense to contempt proceedings.

Legislative Purpose. In McGrain v. Daugherty, the original resolution that authorized the Senate investigation into the Teapot Dome Affair made no mention of a legislative purpose.

A subsequent resolution for the attachment of a contumacious witness declared that his testimony was sought for the purpose of obtaining "information necessary as a basis for such legislative and other action as the Senate may deem necessary and proper." The Court found that the investigation was ordered for a legitimate object.

It wrote: "The only legitimate object the Senate could have in ordering the investigation was to aid it in legislating, and we think the subject matter was such that the presumption should be indulged that this was the real object. An express avowal of the object would have been better; but in view of the particular subject-matter was not indispensable."

In the past, the types of legislative activity which have justified the exercise of the power to investigate have included: the primary functions of legislating and appropriating; the function of deciding whether or not legislation is appropriate; oversight of the administration of the laws by the executive branch; and the essential congressional function of informing itself in matters of national concern. Congress’s power to investigate such diverse matters has been upheld by the Supreme Court.

Despite the Court’s broad interpretation of legislative purpose, Congress’s authority is not unlimited. Courts have held that a committee lacks legislative purpose if it appears to be conducting a legislative trial rather than an investigation to assist in performing its legislative function. Furthermore, although "there is no congressional power to expose for the sake of exposure, so long as Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power."

Pertinency. In determining general questions of the pertinency of inquiries, the courts have required only that the specific inquiries be reasonably related to the subject matter under investigation. Given the breadth of congressional investigations, the courts have long recognized that pertinency in the legislative context is broader than in the judicial contenxt, which relies primarily on the law of evidence’s standard of relevance.

Willfulness. The procedure to be followed in responding to a witness’s objections to questions has been described as follows: "If a witness refuses to answer a question, the committee must ascertain the grounds relied upon by the witness. It must clearly rule on the witness’s objection, and if it overrules the witness’s objection and requires the witness to answer, it must instruct the witness that his continued refusal to answer will make him liable to prosecution for contempt of Congress. By failing adequately to apprise the witness that an answer is required notwithstanding his objection the element of deliberateness necessary for conviction for contempt under 2 U.S.C. § 192 is lacking, and such a conviction cannot stand.

Attorney-Client Privilege. Although there is limited case law with respect to attorney-client privilege claims before congressional committees, appellate court rulings on the privilege in cases involving other investigative contexts (e.g., grand jury) have raised questions as to whether executive branch officials may claim attorney-client, work product, or deliberative process privileges in the face of investigative demands.

340 The Supreme Court has recognized that "only infrequently have witnesses . . . [in congressional hearings] been afforded the procedural rights normally associated with an adjudicative proceeding." Hannah v. Larche, 363 U.S. 420, 425 (1960); see also, United States v. Fort, 443 F. 2d 670 (D.C. Cir. 1970), cert. denied, 403 U.S. 932 (1971) (rejecting the contention that the constitutional right to cross-examine witnesses applied to a congressional investigation); In the Matter of Provident Life and Accident Co., E.D. Tenn., S.D., CIV-1-90-219, June 13, 1990 (noting that the court’s earlier ruling on an attorney-client privilege claim was "not of constitutional dimensions, and is certainly not binding on the Congress of the United States.")

The legal basis for Congress’s practice in this area is based upon its inherent constitutional prerogative to investigate which has been long recognized by the Supreme Court as extremely broad and encompassing, and which is at its peak when the subject is fraud, abuse, or maladministration within a government department.

The attorney-client privilege is, on the other hand, not a constitutionally based privilege, rather it is a judge-made exception to the normal principle of full disclosure in the adversary process which is to be narrowly construed and has been confined to the judicial forum.

In the end, of course, it is the congressional committee alone that determines whether to accept a claim of attorney-client privilege.

Work Product Immunity and Other Common Law Testimonial Privileges. [C]ongressional committees are not legally required to allow a witness to decline to testify on the basis of other similar testimonial privileges. It should be noted, however, that the courts have denied claims by the White House Counsel’s office of attorney work product immunity in the face of grand jury subpoenas that have been grounded on the assertion that the materials sought were prepared in anticipation of possible congressional hearings. In addition, court decisions indicate that various rules of procedure generally applicable to judicial proceedings, such as the right to cross-examine and call other witnesses, need not be accorded to a witness in a congressional hearing. The basis for these determinations is rooted in Congress’s Article I section 5 rulemaking powers, under which each House is the exclusive determiner of the rules of its own proceedings. This rulemaking authority, as well as general separation of powers considerations, suggest that Congress and its committees are not obliged to abide by rules established by the courts to govern their own proceedings.

Though congressional committees may not be legally obligated to recognize the privilege for confidential communications, they may do so at their discretion.

Historical precedent suggests that committees often have recognized such privileges. The decision as to whether or not to allow such claims of privilege turns on a "weighing [of] the legislative need for disclosure against any possible resulting injury."

355 Barenblatt v. United States, 360 U.S. 109, 112 (1959). Not all of the provisions of the Bill of Rights are applicable to congressional hearings. For example, the sixth amendment right of a criminal defendant to cross-examine witnesses and to call witnesses in his behalf has been held not applicable to a congressional hearing. United States v. Fort, 443 F.2d 670 (D.C. Cir. 1970), cert. denied, 403 U.S. 932 (1971).

The usual defenses relied upon by lesser criminals and scared White House lawyers – "You  can’t make me," "You didn’t do it right," and "I have to have a lawyer," being among the most popular – are all shown to be inapplicable to Congress however well established in judicial proceedings. As somebody should have said to Brendan Sullivan when he asserted to the Iran-Contra Committee that he was not a potted plant, "In this room, Sir, you are if we say you are."

Constitutional Limitations
There are constitutional limits not only on Congress’s legislative powers, but also on its investigative powers.

First Amendment. [T]he Court has never relied on the First Amendment as grounds for reversing a criminal contempt of Congress conviction. However, the Court has narrowly construed the scope of a committee’s authority so as to avoid reaching a First Amendment issue.

Fourth Amendment. It appears that there must be probable cause for the issuance of a congressional subpoena.

Where a witness is unable to produce documents he will not be held in contempt "unless he is responsible for their unavailability ... or is impeding justice by not explaining what happened to them."

The application of the exclusionary rule to congressional committee investigation is in some doubt and appears to depend on the precise facts of the situation. It seems that documents which were unlawfully seized at the direction of a congressional investigating committee may not be admitted into evidence in a subsequent unrelated criminal prosecution because of the command of the exclusionary rule. In the absence of a Supreme Court ruling, it remains unclear whether the exclusionary rule bars the admission into evidence in a contempt prosecution of a congressional subpoena which was issued on the basis of documents obtained by the committee following their unlawful seizure by another investigating body (such as a state prosecutor).

Fifth Amendment Privilege Against Self-Incrimination. Although it has never been necessary for the Supreme Court to decide the issue, in dicta it has been indicated that the privilege against self-incrimination afforded by the Fifth Amendment is available to a witness in a congressional investigation. The privilege is personal in nature, and may not be invoked on behalf of a corporation, small partnership, labor union, or other "artificial" organizations. The privilege protects a witness against being compelled to testify but generally not against a subpoena for existing documentary evidence.

Fifth Amendment Due Process Rights. The due process clause of the Fifth Amendment requires that "the pertinency of the interrogation to the topic under the ... committee’s inquiry must be brought home to the witness at the time the questions are put to him."

Short form on this section: yes, there are limits to what Congress can do. No, none of the people in the present case are going to be able to hide behind any of those limits.

This seven-thousand word extract and commentary is long by Kossack standards but it is about one-fifth of the original. That is sufficient to not only give you the essence but some of the integuments of the whole CRS document.

This issue is of such vital importance as to demand this thoroughness. The Bush Administration has asserted since day one that no one, no power on earth, and possibly not even God Almighty, can tell it what to do. This is of course the bloated ego of the perpetually defiant, emotionally adolescent, untreated addict at work. The beauty of the process outlined in the CRS report is that, at last, Congress will be able to proceed, without either the Executive or the Judiciary having a say in the matter, to exert its power against the Preznit’s will and upon the bodies of his subordinates.

"Pride goeth before a fall," is a faith-based assertion not in much favor today even among the Bushite evangelical base so lovingly nurtured by Karl Rove with his disreputable elixir of blood and lies. Yet it foreshadows the titanic clash that will cleanse the American Republic of some of the Constitutional stains imparted by Bush Minor. The course of that encounter between Legislative and Executive is outlined here and its outcome forecast.

As has been pointed out by numerous writers on dailykos.com, it all comes down to simple typography. Congress is described in Article I of the Constitution, the Executive in Article II. This fact, seemingly arbitrary, was on the contrary central to the Founding Fathers’ hierarchy of power. The Revolution showed that the Legislative trumps the Executive, and the Constitution enshrines that view.

The flapping sound you are about to hear is of roosting chickens on Pennsylvania Avenue. And this document shows how they are coming in for landings.

Originally posted to slangist on Thu Jul 26, 2007 at 11:24 PM PDT.

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