Constitutional Showdown

Ken AshfordAttorney Firings, ConstitutionLeave a Comment

It’s brewing:

The House Judiciary Committee announced yesterday that it will press toward a constitutional showdown with the Bush administration over the U.S. attorney firings scandal, even as embattled Attorney General Alberto R. Gonzales vowed to stay on and "fix the problems" that have damaged the reputation and morale of the Justice Department.

John Conyers Jr. (D-Mich.), chairman of the committee, said it will vote on Wednesday on contempt citations for the White House chief of staff, Joshua B. Bolten, and former White House counsel Harriet E. Miers. Both refused congressional demands for information on the dismissals after President Bush invoked executive privilege.

The move puts House Democrats on a legal collision course with the White House, which said last week that it will not allow the Justice Department to prosecute executive branch officials for being in contempt of Congress.

For those of you not paying attention to this story (of only half-paying attention), these are the bulletpoint facts:

  • Failure to appear pursuant to a subpoena is a federal crime
  • This includes subpoenae issued by Congress for their congressional investigations
  • You can appear and refuse to testify to certain questions (i.e., plead the 5th Amendment privilege, or the executive privilege, or some other privilege), but you have to appear
  • If you invoke the privilege, it has to be, you know, a bona fide reason, and it must be in response to questions that are asked; there is no such thing as a "blanket" privilege
  • Congress was investigating the Department of Justice for their (alleged) use of hiring and firing attorneys based on their political party affiliation (and/or their willingness to prosecute Democrats)
  • Congress issued to subpoenae to (among others) Joshua Bolton and Harriet Miers
  • Both refused to appear (invoking a blanket "executive privilege")
  • Failing to appear in response to a subpoena is, on its face, "contempt of Congress" — a crime
  • But the Department of Justice (the object of the investigation) is the body that prosecutes such crimes
  • The Bush Administration has said that the DOJ will not prosecute itself, nor will Bush appoint a special independent prosecutor

In other words, if there is corruption in the Department of Justice, nobody can be brought to trial or charged, because the Department of Justice is the fox guarding the henhouse.

A serious constitutional problem.  In the past, other Presidents have put partisanship aside and appointed special prosecutors.  Bush is not doing that.

So who watches the watchers?

UPDATE:  Law Professor Frank Astin says Congress doesn’t need the Executive Branch or the DOJ to enforce their own subpoenae:

Yet under 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.

And a Supreme Court majority would find it hard to object in the face of two entrenched legal principles.

First is the inherent power of Congress to require testimony on matters within its legislative oversight jurisdiction.

So long as Congress is investigating issues over which it has the power to legislate, it can compel witnesses to appear and respond to questions. That power has been affirmed over and over in prosecutions for contempt.

In modern times, this congressional power has been enforced by referring contempt cases to the U.S. attorney for the District of Columbia for indictment and prosecution. That, of course, is the rub. It allows the president to exercise his plenary power under the Constitution to issue pardons "for offenses against the United States."

But no law says that indictment and prosecution by the Justice Department is the exclusive means to enforce congressional prerogative.


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.

That was what was done in the landmark 1876 case Kilbourn v. Thompson, when the Supreme Court ruled that Congress had overstepped its bounds by investigating the private activities of the defendant in a matter in which it had no jurisdiction.

That decision, however, left no doubt of Congress’s power to punish for contempt those who defy lawful investigations.

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.