Today's WaPo runs a piece by Rutgers Univ. law professor (and former Congressional candidate) Frank Askin, on the question of whether contempt of Congress is pardonable.
Given that the Pretzelnit has announced that he's: 1) Basically pardoning spy-outing turncoat Scooter Libby, and; 2) revoking the right of Congress to enforce its subpoena power, it seems this is now a matter for serious consideration. I've speculated on it a bit before, but why not let a law professor tell you?
First, the question of routine, statutory contempt:
It seems that the House Judiciary Committee is considering seeking help from the Justice Department to enforce contempt citations against Bush administration officials such as Joshua Bolten who refuse to respond to congressional inquiries into alleged White House wrongdoing. That would be a mistake.
Such a strategy leaves Congress beholden to hostile executive branch officials to enforce its prerogatives on exactly the type of charges that the administration said this week it would not allow officials to pursue. This strategy also would allow the president to pardon his underlings should they ever be indicted and convicted.
Whoops. Not good. So what do we do?
[U]nder historic and undisturbed law, Congress can enforce its own orders against recalcitrant witnesses without involving the executive branch and without leaving open the possibility of presidential pardon.
But you knew that. Because you read Daily Kos.
But did you know this?
[I]n an 1895 case ( United States v. Chapman), the defendant unsuccessfully argued that Congress could not have such cases of contempt prosecuted through the courts but must punish such defiance on its own, without judicial assistance. The U.S. Court of Appeals for the District of Columbia held that judicial enforcement of Congress's inherent power was optional. [Emphasis added.]
Well, that appears to change the game a bit, doesn't it? At least in theory, anyway. In 1895, the Congress hadn't yet passed its statutory contempt provision. And since passing them, only one party has objected outright to its constitutionality. Well, only one party, but twice -- once under the Reagan administration, and once under the George W. Bush "administration." And both times represented by White House counsel Fred Fielding. Imagine that!
But what about those pardons?
The limitation on the president's pardon power was most comprehensively discussed in a 1925 opinion by Chief Justice (and former president) William Howard Taft in the case of Ex Parte Grossman.
Grossman had been accused during Prohibition of the illegal sale of liquor and was enjoined by a federal court from further sale of alcoholic beverages. When he violated the order, he was accused of contempt and sentenced to prison -- and then pardoned by the president.
Despite the pardon, a federal judge in Chicago ordered him to jail on the theory that a charge of criminal contempt was not an "offense against the United States" because it was a judicial act, and a presidential pardon would violate the separation of powers.
In an analysis of the pardon power that Taft traced back through English parliamentary history, the opinion concluded that the power did reach contempts -- but only criminal contempts, the purpose of which is to vindicate offenses against the dignity of public authority.
Thus, the congressional alternative. Instead of referring a contempt citation to the U.S. attorney, a house of Congress can order the sergeant-at-arms to take recalcitrant witnesses into custody and have them held until they agree to cooperate -- i.e., an order of civil contempt. Technically, the witness could be imprisoned somewhere in the bowels of the Capitol, but historically the sergeant-at-arms has turned defendants over to the custody of the warden of the D.C. jail.
So, far from being defenseless against the president's refusal to prosecute or the threat of presidential pardon, Congress could take into its own custody defiant administration officials who refuse to cooperate with legitimate inquiries into executive malfeasance. Those targets would have the right to seek writs of habeas corpus from the federal courts, but as long as Congress could show a legitimate need for the information it was seeking pursuant to its legislative oversight functions, it would be standing on solid legal ground.
Pretty solid, alright. The only wild card here is this: Fred Fielding's chief accomplice in his 1982 gambit claiming that Congress did not have this power, despite all precedent to the contrary?
Now Supreme Court Chief Justice John Roberts.
Congress can't afford to wait to settle this. Even if they choose, for whatever reason, to take this to John Roberts' federal courts (against Professor Askin's recommendation and mine), there is no time to wait. Working this out -- or more likely, not working it out -- in court will take months, if not years. And taking the bull by the horns and handling this "in house" requires a deft manipulation of the political momentum game. Don't let the same thing happen to this critical issue as happened to the once "inevitable" resignation/firing of "Attorney General" Alberto Gonzales. We waited and waited for Bush to do the right thing there, and he disappointed us. Which is not by itself a surprise, of course. But think about what has happened to the fever pitch for his ouster since then.
This question absolutely must be en route to a resolution before Congress departs for its August recess. The American people cannot be left guessing how many effective branches of government they actually have while our legislature takes a month-long vacation.
UPDATE: It should go without saying, but you should call your Representatives about this on Monday. Ten calls is actually about all it takes to raise eyebrows in a Congressional office. Twenty-five is a deluge. A hundred is a damned emergency.
