Anne M. Burford is gone from the Environmental Protection Agency, but the dispute over the contempt of Congress citation that contributed to her resignation as EPA administrator lingers on.
Instead of quickly moving to cancel the contempt citation as moot, a House committee chairman is considering impeachment proceedings against the U.S. attorney who refused to prosecute Burford, even though he concedes that an apparent loophole in the law makes the case shaky.
A resolution to purge Burford of contempt is pending before the House Public Works and Transportation Committee. But Chairman James J. Howard (D-N.J.) says he will hold it right there until he gets support from the Republican leadership to plug the legal loophole.
Howard convened the committee last week to hear U.S. Attorney Stanley S. Harris explain why he failed to refer the contempt citation to a grand jury. Before the hearing was over, Howard was fuming.
"The position of the Justice Department is that the will of Congress can be thwarted any time the Justice Department decides an official of the executive branch should not be prosecuted," he said. "This faulty reading of the statute will render the Congress as a representative of the people powerless . . . . When that happens, it will be a sad day for the rights of the American people."
The issue goes to the heart of the controversy over the Burford case: allegations of misconduct at high levels of government are one thing, but defying the authority of Congress is quite another.
In this light, the White House got itself into more than it bargained for when it ordered Burford to withhold documents about the EPA's operation under Burford that a House oversight subcommittee had subpoenaed. The House has the documents now, and the White House is eager to see Burford cleared.
The initial dispute over thousands of pages of EPA documents has boiled down to a single word in the 126-year-old U.S. Code, under which Burford became the highest-ranking government official to be found in contempt of Congress. According to the code, a contempt citation is to be certified by the speaker of the House and sent to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action."
"That sentence does not say 'shall consider bringing' or 'may bring,' " said Howard, whose background as a schoolteacher gives him a healthy respect for dictionary definitions.
But the law is not Webster's, and Harris and the Justice Department contend that "shall" gives the U.S. attorney an escape hatch. Appellate courts, Harris testified, "have held that the word 'shall' . . . is directory rather than mandatory." House counsel Stanley M. Brand and the lawyers among Howard's committee members concede that Harris has a point.
Discovering, after all this time, that the law has a loophole of such proportions has left many members of Congress flabbergasted, frustrated and furious.
"If this situation is not corrected, it will be futile for any Congress to ever vote a contempt citation against an administration official at any time in the future," Howard said at the committee hearing. He emphasized later in an interview that he has no intention of giving up the fight.
"The contempt citation is so serious that Cabinet members, threatened with contempt, have granted the wishes of Congress before it came to the floor," he said. "I meant what I said when I used the word impeachment. That's a possibility."
But he said he first would try to plug the one-word loophole with an amendment, either allowing Congress to refer a contempt citation to a grand jury directly or, at a minimum, adding the word "required" and a 30-day time limit.
Howard said he will bring up the resolution to clear Burford of contempt, perhaps as early as this week. But he won't move it out of committee until he has some Republican cosponsors for his amendment.
"I'd like to be sure of cosponsorship from some people who are pushing us so hard on the Burford amendment, like Michel and Lott," he said, referring to Minority Leader Robert H. Michel (Ill.) and Minority Whip Trent Lott (Miss.) "We'd all like to get this out of the way. Wouldn't it be nice to pass two things? One to close the loophole, and one to take care of Mrs. Burford?"