He wrote about this in the Harriet Miers case last summer:
Harriet Miers's Contempt of Congress: Are Conservatives About To Neuter Congress, While Claiming Full Legal Justification for this Separation-of-Powers Violation? By JOHN W. DEAN
Friday, Jul. 13, 2007
(read long introduction, background and legalistic discussion of Harriet Miers' Contempt of Congress....)
Congress Needs To Protect Its Powers: Only One Way It Can Do So(...)
Marty Lederman has prepared a
nice overview analysis of what happens when officials defy a congressional subpoena.
Finally, if Miers is found in contempt, the House itself can take action against her at the bar of the House. (The Senate can similarly hold such proceedings.) Congress has the power to prosecute contumacious witnesses to require them to comply, and the Supreme Court has repeatedly reaffirmed this power. For example, in 1987, in Young v. U.S., Justice Antonin Scalia recognized "the narrow principle of necessity" or "self-defense" of the Congress in protecting its institutional prerogatives. Scalia said "the Legislative, Executive, and Judicial Branches must each possess those powers necessary to protect the functioning of its own processes, although those implicit powers may take a form that appears to be nonlegislative, nonexecutive, or nonjudicial, respectively."
When all is said and done the only way Congress can protect its prerogatives is to undertake its own contempt proceedings. The parliamentary precedents of the House provide such procedures, by which Congress can effectively protect itself. There is no shortage of past instances where the Congress has held such trials. Readers may want to consult, for example,
Hinds' Precedents and
Canon's Precedents. Unfortunately, however, this machinery has become a bit rusty, for these procedures have not been used since 1934.
Congress Must Avail Itself of Traditional Procedures to Compel Testimony and/or Punish ContemptGiven the clear attitude of conservative presidents, who are doing all within their power to make Congress irrelevant, Congress should turn to these underemployed precedents and put them back to work. The House and Senate Judiciary Committees should take the lead in reviving these procedures, and the Democrats' leadership should announce that they are embracing them.
If they do not, Fred Fielding has it right: Officials are absolutely immune from compelled Congressional testimony. Bush can simply tell Congress to stop sending subpoenas to his appointees. However, if Congress does engage in a little self-help at this crucial juncture, it can be sure that not only Harriet Miers, but also George Bush, will be forced to pay attention to congressional subpoenas - for the bottom line is that Congress will not need the cooperation of the other branches to enable it to conduct proper oversight.
--------------------------------------------------------------------------------
John W. Dean, a FindLaw columnist, is a former counsel to the president.
http://writ.news.findlaw.com/dean/20070713.htmlHere is where Marty Lederman talks about the power of Congress to arrest and detain.....
What Would Happen if the Administration Continues to Defy the Subpoenas? Friday, July 06, 2007
Marty Lederman
"(....)
How would such self-help work? Well, believe it or not, the Sergeant-at-Arms of the Senate or House would personally arrest the officials and detain them in the Capitol jail or guardhouse (assuming such a facility still exists). (One of my students last semester noticed this gem on the
website of the current Senate Sergeant-at-Arms, Terrance Gainer: "The Sergeant at Arms is authorized to arrest and detain any person violating Senate rules,
including the President of the United States." We wondered in class: What could possibly have motivated Mr. Gainer or his staff to post that provocation?) The person would then be tried by the legislative house and, if found guilty (of civil contempt), could be detained until compliance with the subpoena or until the session of Congress ends, Anderson, 19 U.S. at 231, whichever comes first.
Congress has not invoked this authority since 1935 and, as far as I know, has never used it against a current or former government official. (The closest case was probably the contempt at issue in McGrain v. Daugherty, 273 U.S. 135 (1927), which was imposed against Mally Daugherty, a bank president and the brother of resigned and disgraced Attorney General Harry Daugherty, who Congress was investigating in connection with the Teapot Dome scandal.)
Thus, this option is unlikely . . . but not inconceivable, if Congress is willing to break relatively new ground, and to conduct a contempt trial.
Third, and most likely, Congress could file a civil action in federal court seeking declaratory relief, or an injunction requiring enforcement of its subpoena. Although I'm not aware of any statute that expressly grants the courts jurisdiction over such suits, both Congress and the Executive branch have filed suits of this sort in the past, asserting federal question jurisdiction under 28 U.S.C. 1331. The courts in such cases have not expressly reach edthe question of whether section 1331 jurisdiction is apposite. See Senate Select Committee on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51 (D.D.C. 1973) (holding that the $10,000 jurisdictional amount in controversy requirement then in the statute (it's since been eliminated) was not satisfied); United States v. House of Representatives, 556 F. Supp. 150 (D.D.C. 1983) (in which DOJ took the position that the controversy arose under the Constitution and laws of the United States, but the court did not reach the merits -- it dismissed the suit "until all possibilities for settlement have been exhausted"; and DOJ did not appeal)".
more:
http://balkin.blogspot.com/2007/07/what-would-happen-if-administration.htmlK&R
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