The subject of Inherent Contempt came up a lot throughout last summer.
From Jonathan Turley, Constitutional law professor from George Washington University in DC, in an episode of Countdown with Keith Olbermann where he discusses the possibility of using “Inherent Contempt” (from July 2007):
doneFrom Crooks & Liars (July 17, 2007):
Former White House Counsel Harriet Miers defied a Congressional subpoena last week and Congress is considering charging her with contempt of Congress. As we find out on Monday’s “Countdown,” if the DoJ does not uphold a contempt charge it is believed they will circumvent Alberto Gonzales and charge Miers with Inherent Contempt. According to Jonathan Turley, if charged with Inherent Contempt, Miers would be arrested by the Sergeant-At-Arms, frog marched directly to Congress and tried on the spot.
I went back looking for other articles on Inherent Contempt (here are links with some excerpts):
In Prosecutors Probe, a Detour Around Courts Friday, July 27, 2007
In approving contempt-of-Congress charges against White House Chief of Staff Joshua B. Bolten and former counsel Harriet E. Miers for their refusal to provide documents and testimony in the probe of the firing of U.S. attorneys, the House Judiciary Committee has chosen the popular route of trying to compel testimony through the criminal process.
But that road may prove difficult. It requires the assistance of the U.S. attorney for the District of Columbia, Jeffrey A. Taylor, to prosecute the cases — and the Justice Department has declared that he cannot take the cases to a grand jury, because it has also ruled that President Bush’s claim to executive privilege in the controversy is valid.
But there is a way around that. Congress could turn to an old and once frequently used procedure called “inherent contempt.” In fact, the Senate Judiciary Committee’s ranking Republican, Sen. Arlen Specter (Pa.), just this week talked up the idea, saying it “might be productive.” Here’s how it works:
Instead of relying on an outside prosecutor, the House or the Senate can adjudicate a case against the executive branch or a private citizen. The chamber’s sergeant-at-arms can arrest witnesses and haul them in for questioning.
“Inherent contempt has the distinction of not requiring the cooperation or assistance of either the executive or judicial branches,” according to a new report from the Congressional Research Service (CRS).
Such a proceeding could be used against Miers and Bolten, by the full House or possibly by a committee. Both would be allowed legal representation in a setting similar to impeachment hearings. Ultimately, the whole House could vote to mete out punishment, which could include imprisonment.
But Democrats have shown no appetite for the process, which has not been used since 1935. As the CRS report noted, “It became too cumbersome and time consuming to try contemptuous behavior on the floor.”
From the office of Senator Patrick Leahy (from May 18, 2000):
The last time the Senate held a contempt trial was 66 years in 1934. At that time, the Senate established a special committee to investigate the awarding of air and ocean mail contracts made by the Postmaster General William MacCracken. The Chairman of the special Committee, Hugo Black, a Member of the Judiciary Committee at the time, submitted a resolution to the Senate after it was approved by the special committee. The Senate approved the resolution, which outlined how the Senate was going to proceed in connection with the citations for contempt.
Let me describe how that contempt trial proceeded, just in case the Committee truly wishes to continue down the course urged by Senator Specter. Some of these procedural steps are all too familiar to us from our recent impeachment trial. Unlike the impeachment trial, which was presided over by the Chief Justice, the Senate’s last contempt trial was presided over by Vice President John Nance Garner. The Vice President also swore in all witnesses, who appeared in before the Senate and testified in the well of the Senate. Members of the special committee and the respondents and their counsels were given desks and seats in the well of the Senate. Senators with questions, who were not members of the special committee, had to submit their questions in writing to the Vice President, who had the clerk read the questions to each witness. The Vice President ruled on any objection to a question if raised. Counsels for the respondents and the Senators from the special committee could examine, cross-examine and re-examine witnesses.
The contempt trial took about one week, and then the Senate met in closed session to deliberate on the matter. At the end of the trial, the Senate voted on resolutions to hold Postmaster General MacCracken in contempt of the Senate and for the Senate Sergeant at Arms to take him into custody to be held in a D.C. jail for 10 days. This resolution was considered by roll call vote and a majority was required for adoption.
The Supreme Court subsequently ruled that the Congress acted within its inherent contempt power and reversed the appellate court’s grant of a habeas corpus petition and discharge of the respondent from custody. Jurney v. MacCracken, 294 U.S. 125 (1945).
From Politico:
Congressional Democrats searching for legal ways to force President Bush’s senior advisers to testify before their committees have few good options and one really odd one.
“The sergeant at arms could stick [former White House counsel] Harriet Miers in the basement, lock her up and wait until she’s ready to talk,” said University of Missouri—Columbia law professor Frank Bowman, describing the little-known legislative power called “inherent contempt.”
The scenario, while unlikely, is technically legal, according to law professors. Until about 70 years ago, imprisonment was one way Congress compelled testimony from a reticent witness. But don’t expect to see Miers, former political adviser Karl Rove or any other former Bush aides locked up in the Capitol jail anytime soon. The jail was razed in 1929, so they’d have to use a makeshift slammer. No one — not even the most vocal administration critic — is likely to volunteer an office for a prison.
The constitutional showdown with the Bush administration, however, will certainly continue. The White House refuses to participate in congressional inquiries into its terrorist surveillance program and the firing of nine U.S. attorneys. Rove won’t show, former Attorney General Alberto Gonzales won’t answer and White House counsel Fred Fielding won’t turn over documents.
Democrats are quickly running out of ways to get the information. The resignations of Rove and Gonzales take impeachment officially off the table, although Democrats weren’t inclined to follow that route anyway. The Bush administration has instructed Justice Department attorneys to refuse to prosecute any congressional contempt charges. And Congress will face a tough fight to compel the administration to appoint a special prosecutor.
Democrats are left with two equally improbable options: Jail the officials or sue the administration. Either option would put two relatively obscure Hill lawyers, House General Counsel Geraldine Gennet and Senate General Counsel Morgan Frankel, at the center of a political circus.
