Mikva Discusses Capitol Jail
Back in the early days of the republic, the House and Senate dealt with contempt of Congress the old-fashioned way: They had their sergeant-at-arms throw the miscreant in jail. The Capitol jail, a relic of those days of congressional self-help, has since become little more than a quaint stop on tours of the nation's capital.
But now, with the White House's sweeping invocation of executive privilege in the dispute over the Justice Department's firing of eight U.S. attorneys, the House and Senate may be forced to reopen the jail. Otherwise, Congress may find itself with no way to secure a judicial evaluation of the Bush administration's privilege assertions.
President Bush invoked executive privilege in arguing that White House staff, including White House Chief of Staff Josh Bolten and former White House counsel Harriet Miers, should not testify about their roles in the firings. Accordingly, Bolten and Miers refused to appear at a scheduled hearing in response to subpoenas issued by the House Judiciary Committee. Rep. John Conyers, committee chairman, has proposed to hold Bolten and Miers in contempt, a decision that ordinarily results in a referral to the U.S. attorney for the District of Columbia. But President Bush's legal advisers argue that the U.S. attorney works for the Department of Justice and ultimately for the president and cannot take a position on executive privilege contrary to the president's. Just as Bush can fire U.S. attorneys, through Atty. Gen. Alberto Gonzales, so too, Bush's aides argue, can he insist that they implement presidential policy in deciding whether to seek contempt sanctions for an invocation of executive privilege.
The position, no doubt, appeals to those in the White House who wish to nip any legal proceeding in the bud. Without a grand jury proceeding, there may be no vehicle with which to test in court the legality of the executive privilege claim.
But unilateralism by the executive branch may invite similar unilateralism by Congress. Congress, like the federal courts, has the inherent power to hold in contempt those who obstruct its processes. The 19th Century witnessed a number of contempt proceedings in which the House or Senate voted to jail individuals who refused to appear in response to a subpoena, or took action to obstruct congressional investigations. Typically, the chamber took this action on its own, by directing congressional officers to jail the person pending a trial on the contempt charge before the full chamber. There was no need to get the U.S. attorney involved. Judicial review followed, when the individual brought either a false imprisonment claim against the jailer or a petition for a writ of habeas corpus to challenge the legality of the detention.
Congressional self-help gave way to a more orderly judicial process around the turn of the century. Congress approved laws subjecting people to criminal sanctions for obstructing its investigations. Rather than adjudicating claims of contempt itself, an unwieldy process at best, Congress shifted the responsibility to the U.S. attorney and the federal courts, which were better equipped to consider the rights of individuals.
But as the U.S. Supreme Court pointed out in 1935, the creation of a statutory contempt process did not displace the inherent authority of Congress. So it remains open to Congress to proceed against Bolten and Miers without invoking the grand jury procedures that the White House has moved to block.
In the end, it makes little sense to proceed down this road. Neither the White House nor Congress can claim the unilateral right to pass on claims of executive privilege. That's a job for the courts. The White House's position will not forestall judicial review of the executive privilege claim, it will simply complicate the process.
Past administrations often have allowed departments of the executive branch to take opposing positions before the federal courts; such an approach would work well here. Rather than putting Congress back in the business of running a jail, the White House should propose an orderly mechanism to secure judicial resolution of the executive privilege claim.
Abner Mikva is a former chief judge of the U.S. Court of Appeals in the District of Columbia and former White House counsel in the Clinton administration. He is senior director at the Mandel Legal Aid Clinic of the University of Chicago. James Pfander is a professor at Northwestern University School of Law.
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