http://www.nytimes.com/2007/12/04/opinion/04tue4.html?_r=1&oref=sloginCongress Has a Way of Making Witnesses Speak: Its Own Jail
By ADAM COHEN
Published: December 4, 2007
Congress and the White House appear to be headed for a constitutional showdown. The House of Representatives is poised to hold Joshua Bolten, the White House chief of staff, and Harriet Miers, a former White House counsel, in contempt for failing to comply with subpoenas in the United States attorneys scandal. If the Justice Department refuses to enforce the subpoenas, as seems likely, Congress will have to decide whether to do so. Washington lawyers are dusting off an old but apparently sturdy doctrine called “inherent contempt” that gives Congress the power to bring the recalcitrant witnesses in — by force, if necessary.
What we know that Congress has learned in its investigation of the purge of nine top federal prosecutors is disturbing. Cases appear to have been brought against Democrats and blocked against Republicans to help Republicans win elections. The stakes have grown steadily: it now seems that innocent people, like Georgia Thompson, a Wisconsin civil servant, may have been jailed for political reasons. Congress has a duty to find out what happened.
Mr. Bolten and Ms. Miers may have important evidence. When Congress subpoenaed them, however, both claimed executive privilege in ways that go far beyond what the law allows. Ms. Miers should, at the very least, have appeared and invoked the privilege in response to specific questions. Instead, she refused to appear at all. Mr. Bolten, who was asked to produce documents, should have said specifically which ones he believed to be privileged. Instead, he rejected Congress’s right to ask for the documents.
As a result, the House Judiciary Committee voted in the summer to hold Mr. Bolten and Ms. Miers in contempt. If the full House does, too — or if the Senate, which is also considering contempt, does so — then the United States attorney in Washington, D.C., will be responsible for taking Mr. Bolten’s and Ms. Miers’s cases to a grand jury. The problem is that the White House argues that the contempt of Congress law does not apply to presidential subordinates who claim executive privilege. At his confirmation hearings, Attorney General Michael Mukasey sounded as if he might agree with this intransigent position.
This is where inherent contempt comes in. From the Republic’s earliest days, Congress has had the right to hold recalcitrant witnesses in contempt — and even imprison them — all by itself. In 1795, shortly after the Constitution was ratified, the House ordered its sergeant at arms to arrest and detain two men accused of trying to bribe members of Congress. The House held a trial and convicted one of them.
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Nevertheless, inherent contempt is important. The Bush administration has been acting as if only the executive branch matters. Last week, when Patrick Leahy, the Vermont Democrat who is chairman of the Senate Judiciary Committee, formally rejected the executive privilege claims of Mr. Bolten and others, Dana Perino, a White House spokeswoman, said: “I don’t understand why he continues to have this rope-a-dope that’s not going to go anywhere.”
This country has seen far too much of this sort of dismissal of Congress’s authority. There is a simple way to avoid a constitutional showdown: If Congress holds witnesses in contempt, the Justice Department should enforce the subpoenas. Mr. Mukasey would need to focus not on the White House’s interests, but rather on his duty to ensure that the laws are faithfully executed.
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