Wednesday, March 21, 2007

Enforcing Congressional Subpoenas and Contempt of Congress

There seems to be a lot of confusion about this around the blogosphere today. Here's my take:

For what it's worth there are three ways that Congress can enforce its subpoenas. I'll start with the two statutory methods.

The first, and arguably weakest, is via "civil contempt," which only applies to the Senate, and specifically excludes use against Executive Branch officials. See 2 USC 288d (2000). This may, however, be used against Ms. Miers as she is no longer an executive branch employee, but a private citizen. There is precedent for this as back during Whitewater, the Senate used civil contempt to compel the disclosure of notes taken during a White House meeting involving then-counsel William Kennedy.

The second statutory method is the"contempt of Congress" statute, 2 USC 192, 194, which authorizes the US Attorney for DC to submit to a grand jury for indictment any person found by the Congress to be in contempt. This statute was passed in 1857, but has only been used once against an executive branch official. That was in 1982-83 against EPA Administrator Anne Burford. In that case, the DOJ argued that since prosecution was solely within the discretion of the executive branch the statue is unconstitutional and they didn't have to submit anything to the grand jury. They sued to obtain an injunction, however, the DC district court dismissed the case and it was never appealed. See United States v. House of Representatives, 556 F.Supp. 150 (D.D.C. 1983). This issue has never been settled. Ultimately in the Burford scenario, Fred Fielding, then WH Counsel for Reagan negotiated a settlement that involved the disclosure of ALL of the documents that Congress wanted from EPA, despite the fact that Pres. Reagan had claimed "executive privilege."

Finally, there is a procedure known as "inherent contempt," which involves an arrest by the Sargent-At-Arms (or the Capitol Police I suppose), trial at the bar of either the House or Senate, and a full vote of the offended body to convict. Either house of Congress may use the procedure independent of the other's consent, and both have done so previously. The history of inherent contempt dates back to 1793, and its use has been affirmed by the Supreme Court several times. See e.g., Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821); see also McGrain v. Daugherty, 273 U.S. 135 (1927). The procedure hasn't been used since 1935, however, as Congress has preferred to use 2 USC 192, 194 instead.

In the end, enforcement of subpoenas is a matter of political will. If Congress has it, they should prevail, if they don't some other accommodation will be reached.


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