Congress's Power To Compel

Despite the pardon, a federal judge in Chicago ordered him to jail on the theory that a charge of criminal contempt was not an "offense against the United States" because it was a judicial act, and a presidential pardon would violate the separation of powers.

In an analysis of the pardon power that Taft traced back through English parliamentary history, the opinion concluded that the power did reach contempts -- but only criminal contempts, the purpose of which is to vindicate offenses against the dignity of public authority.

The opinion distinguished civil contempt, whose purpose is to enforce a third party's rights by coercing compliance with a court order.

The distinction between criminal and civil contempt is well recognized. The punishment for criminal contempt is a set fine or jail term. A civil contempt punishment is framed in terms of either/or: either the defendant does X or suffers daily consequences until X is done. That concept is often explained by the aphorism that the defendant has the keys to the jail in his own pocket. He can free himself by obeying the court order. (The jailing of New York Times reporter Judith Miller for refusing to answer questions during the Scooter Libby investigation is a recent example.)

Thus, the congressional alternative. 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.

The writer, a professor at Rutgers School of Law, is director of the Rutgers Constitutional Litigation Clinic.