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Congress's Power To Compel

By Frank Askin
Saturday, July 21, 2007

It seems that the House Judiciary Committee is considering seeking help from the Justice Department to enforce contempt citations against Bush administration officials such as Joshua Bolten who refuse to respond to congressional inquiries into alleged White House wrongdoing. That would be a mistake.

Such a strategy leaves Congress beholden to hostile executive branch officials to enforce its prerogatives on exactly the type of charges that the administration said this week it would not allow officials to pursue. This strategy also would allow the president to pardon his underlings should they ever be indicted and convicted.

Yet under historic and undisturbed law, Congress can enforce its own orders against recalcitrant witnesses without involving the executive branch and without leaving open the possibility of presidential pardon.

And a Supreme Court majority would find it hard to object in the face of two entrenched legal principles.

First is the inherent power of Congress to require testimony on matters within its legislative oversight jurisdiction.

So long as Congress is investigating issues over which it has the power to legislate, it can compel witnesses to appear and respond to questions. That power has been affirmed over and over in prosecutions for contempt.

In modern times, this congressional power has been enforced by referring contempt cases to the U.S. attorney for the District of Columbia for indictment and prosecution. That, of course, is the rub. It allows the president to exercise his plenary power under the Constitution to issue pardons "for offenses against the United States."

But no law says that indictment and prosecution by the Justice Department is the exclusive means to enforce congressional prerogative.

Indeed, in an 1895 case ( United States v. Chapman), the defendant unsuccessfully argued that Congress could not have such cases of contempt prosecuted through the courts but must punish such defiance on its own, without judicial assistance. The U.S. Court of Appeals for the District of Columbia held that judicial enforcement of Congress's inherent power was optional.

This power of Congress to punish contemptuous behavior itself was reinforced in 1934. In Jurney v. McCracken, the Supreme Court denied a writ of habeas corpus to a petitioner who had been taken into custody by the Senate sergeant- at-arms for allegedly destroying documents requested in a Senate subpoena.

The limitation on the president's pardon power was most comprehensively discussed in a 1925 opinion by Chief Justice (and former president) William Howard Taft in the case of Ex Parte Grossman.

Grossman had been accused during Prohibition of the illegal sale of liquor and was enjoined by a federal court from further sale of alcoholic beverages. When he violated the order, he was accused of contempt and sentenced to prison -- and then pardoned by the president.

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.

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