Here's the situation: Harriet Miers has bugged out on her subpoena and will refuse, at the president's order, to even appear before the House Judiciary Committee as required tomorrow.
The response from Conyers and subcommittee chair Linda Sanchez:
A refusal to appear before the Subcommittee tomorrow could subject Ms. Miers to contempt proceedings, including but not limited to proceedings under 2 U.S.C. § 194 and under the inherent contempt authority of the House of Representatives.
Good to see inherent contempt being contemplated. To this point, it has been a mystery whether the relevant authorities at the committees have been aware of that option. We've always assumed they were at least aware, but they've played their cards close enough to the vest that nobody was ever 100% sure.
Well, now we know. And we probably owe a debt of gratitude for it to Congressman Brad Miller, for passing on to Rep. Sanchez his discoveries about and knowledge of the precedents for inherent contempt back in March, after encountering his own difficulties with "administration" stonewalling of his investigative subcommittee of the Science and Technology panel.
Our previous discussions of contempt of Congress procedures have allowed us to hash out the shortcomings of statutory contempt and the high-stakes game of inherent contempt. Chief among the statutory procedure's shortcomings: it depends for its enforcement on the non-partisan cooperation of the U.S. Attorney. And if we were guaranteed that, we wouldn't be here subpoenaing everybody, now would we?
Now, in light of the Scooter Libby pardon (and that's what it is, or at least what it will be), we have to consider another possible shortcoming: that statutory contempt of Congress may be pardonable by the president.
There was a time, of course, where such a pardon would have been considered so outrageous, and so utterly beyond the pale, that raising the concern would have gotten you laughed off The Hill. But no longer. After all, we just saw Bush issue exactly the type of pardon that James Madison himself once said:
[I]f the President be connected, in any suspicious manner, with any person, and there be grounds [to] believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty...
That, in turn, has led many to wonder whether inherent contempt is pardonable. The answer is: I don't know.
But here's my thinking on it.
The presidential pardon power extends to all "offences against the United States." I don't know what you'd call inherent contempt, but if there's any argument to be made that it isn't a federal crime, you might have an argument that the presidential pardon power is ineffective against it.
The Congressional Research Service says (PDF) the purpose of the imprisonment (or other sanction) under inherent contempt may be either punitive or coercive -- i.e, a non-compliant witness can be sentenced to a specific term as punishment for non-compliance, or he may be held indefinitely (or at least until the adjournment sine die of the house that sentences him) in order to coerce compliance.
That sets up a rough parallel to ordinary, judicial contempt of court sentences. There's criminal contempt, which is a specific punishment for bad behavior, and there's civil contempt, which is designed to enforce compliance with specific court orders. Criminal contempt carries a sentence for a set term, but civil contempt can be indefinite, and lasts until the contemnor agrees to comply with the judicial order in question.
If you draw a parallel between the two types of judicially ordered contempt of court and the two different reasons and sentences that can be passed under inherent contempt of Congress, it becomes pretty easy to argue that someone sentenced under inherent contempt and imprisoned in order to coerce compliance is being held on charges analogous to a civil charge -- and therefore arguably not subject to pardon.
