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February 14, 2008

Contempt a Year in the Making

For just shy of a year Congressional Democrats have been demanding that Bush Administration officials appear under oath to testify about the U.S. Attorney firings. First, they tried to get officials, most notably Alberto Gonzales, Karl Rove, Harriet Miers, and Josh Bolten to appear voluntarily. Initially all four refused, but the White House offered to let them testify in private hearings not under oath. That option was rejected by Congress out of hand. Gonzales eventually ended up testifying anyway.

That's when Congress started rumbling about subpoenas and contempt citations. The House Judiciary Committee subpoenaed Miers and Bolten; the Senate Judiciary Committee subpoenaed Rove and Bolten. The White House responded by claiming to extend executive privilege, and each official refused to appear. Executive privilege is the doctrine that coequal branches of government must afford respect for the inherent sensitivity of communications between the president and his advisers. The House Judiciary Committee rejected the assertion of privilege and issued a citation of statutory contempt for Miers and Bolten in July of last year. In December, the Senate Judiciary Committee issued contempt citations for Rove and Bolten.

That's how things stood until Monday, when Rep. John Conyers, chairman of the House Judiciary Committee, announced that he's ready to refer the contempt citations to the full House. That's the final step in the process of statutory contempt before a referral to a U.S. Attorney for presentation to a grand jury. Unfortunately for Conyers, it has long been the position of the Office of Legal Counsel that the President can direct the Department of Justice to refuse to act on the certified contempt citations. In other words, the Attorney General can order the U.S. Attorney for the District of Columbia to sit on the contempt citation, rather than seek an indictment. That was the conclusion of lawyers for Presidents Reagan, Bush 41, Clinton, and Bush 43. Resolving the question will almost certainly result in appeals for a judicial resolution.

There are several reasons to expect that a court case will not resolve the situation in favor of Congress. First, contempt of congress is a seriously underdeveloped area of law and these questions are intimately involved with the another underdeveloped area: executive privilege. Second, courts are loath to be dragged into fights between Congress and the Executive Branch. Justice Scalia, in particular, argued when he was Assistant Attorney General that the courts should refuse to intervene in dueling claims of contempt and executive privilege. Since that time, the courts have largely agreed. Third, this is about scoring political points. The longer this drags on, the less it will matter to Congressional Democrats because it won't matter to the public. Alberto Gonzales is already gone; so is Karl Rove. President Bush will be gone in a year and the issue is already fading from the minds of voters. At some point, the political return will be worth less than the investment of time and money and the very real possibility of an embarrassing loss at the Supreme Court.

Because these are confusing areas of law about which I've already seen misrepresentations and outright errors in the press and on blogs, I've put together a primer on contempt of Congress. Another more interesting post on executive privilege, which is an even more complicated mess of law, will go up tomorrow.

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posted by Gabriel Malor at 04:04 AM

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