The showdown is looming. As you know, the House Judiciary Committee votes tomorrow to cite Miers and Bolten for Contempt of Congress. And as much as I'd love to see the Capitol Police frogmarch the two of them right into some asbestos-ridden room in the Capitol sub-basement, the plan seems to be to at least try the statutory contempt route before falling back on the ancient parliamentary prerogative of inherent contempt.
Just one problem, however: as the Post reported last Friday, the White House has already announced that "the Justice Department will never be allowed to pursue contempt charges initated by Congress against White House officials once the president has invoked executive privilege."
So it's game over for statutory contempt, right? Bush tells AGAG to tell the U.S. Atty for DC not to bring the contempt citation before the grand jury; checkmate.
Not so fast -- follow me on the flip. Oh, and bring your ham sandwich -- we may be indicting it before this diary is through.
Thus far, there's been a lot of focus on the following statutory language from 2 U.S.C. §194:
Whenever a witness summoned as mentioned in section 192 of this title fails to appear to testify or fails to produce any books, papers, records, or documents, as required, or whenever any witness so summoned refuses to answer any question pertinent to the subject 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 or subcommittee of either House of Congress, and the fact of such failure or failures is reported to either House while Congress is in session or when Congress is not in session, 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.
Which leads one to ask all sorts of nerdy lawyery questions, like "does duty mean obligation?" "does shall mean must?" -- the unspoken assumption being that a grand jury is just a helpless, hapless, directionless group of 23 followers who can't think for themselves and only act when told to by the prosecutor.
(This certainly comports with the standard view among prosecutors of grand juries. In 1985, Sol Wachtler, former chief judge of New York State's highest court of appeals, famously bragged that prosecutors have so much sway over grand juries they could convince them to "indict a ham sandwich.")
Thus, the inside-the-beltway legal insta-scholars of the mainstream media -- who are just now discovering inherent contempt (i.e., catching up with where Kagro X was four months ago when reasonably intelligent observers could already see where this thing was headed) --will tell you that prosecutors indict defendants, and that since the prosecutors serve "at the pleasure of the president," he can tell them not to indict.
But the truth is, in federal criminal matters, prosecutors don't indict defendants; grand juries do. First, some history, from the sometimes-reliable wikipedia:
In the American common law legal system, a grand jury is a type of a jury which determines if there is enough evidence for a trial. . . .
History
The first grand jury was held in England in 1166. The grand jury was recognized by King John in the Magna Carta in 1215 on demand of the nobility. Its roots stretch back as early as 997 A.D., when an Anglo-Saxon king, Ethelred the Unready, charged an investigative body of his reign that it should go about its duty by accusing no innocent person, and sheltering no guilty one.
OK, so far so good. But what's this about indiciting ham sandwiches again?
In practice, a grand jury rarely acts in a manner contrary to the wishes of the prosecutor. Judge Sol Wachtler, the disbarred former Chief Judge of New York State, was quoted as saying that a prosecutor could persuade a grand jury to "indict a ham sandwich."
. . .
[HOWEVER:] In some rare instances, the grand jury does break with the prosecutor. It can even exclude the prosecutor from its meetings and subpoena witnesses and issue indictments on its own. This is called a "runaway grand jury." Runaway grand juries sometimes happen in government corruption or organized crime cases, if the grand jury comes to believe that the prosecutor himself has been improperly influenced. Such cases were common in the 19th century, but have become infrequent since the 1930s.
Hmmmm. Tell me more. From the University of Dayton School of Law's website, "What is a 'runaway' grand jury?"
A runaway grand jury is one in which the grand jurors have taken control of an investigation and are ignoring a prosecutor's efforts to rein them in. In the nineteenth century, many American grand juries were crotchety and independent and did what they wanted; by the twentieth century, grand juries had pretty much come under the control of prosecutors.
A runaway grand jury is an exception to this rule--the grand jurors ignore the prosecutor(s) and start making their own decisions. Runaway grand juries were not uncommon in the early twentieth century. The best known of these runaway grand juries is probably the New York grand jury in the 1930's that barred prosecutors from coming into the grand jury room and took off on its own investigation of corruption in New York city government. This grand jury eventually cooperated with Thomas E. Dewey, whom the jurors apparently decided they could trust, and returned many indictments against a variety of defendants, including some well known members of the New York Mafia. Since modern grand jurors tend to be ignorant of their ability to act independently of a prosecutor's wishes, runaway grand juries have pretty much become a thing of the past. There have, however, been a few exceptions: Recently, for example, a California state grand jury indicted all the top county officials, and nearly closed down county government. And a Texas state grand jury began investigating a mayoral candidate and seems to have ruined his reputation sufficiently to cause him to lose the election, even though he was never charged with any crimes.
Thus, the U.S. Attorney for the District of D.C. can sit on his hands all he wants -- any grand jury impaneled in D.C. has the ability to act on its own knowledge and return a "true bill" (an indictment) of Harriet Miers and Joshua Bolten.
It is undeniably true that the U.S. Attorney still would then be the one to actually prosecute (or not) the case, but it strikes me that the spectacle of an independent grand jury returning an indictment notwithstanding the U.S. Attorney's refusal to cooperate has a significant element of drama to it, and will help to heighten media attention and hasten the ultimate downfall of these dangerous and tyrannical thugs.