Big Day In The Annals Of Contempt Of Congress

Just hours after Nancy Pelosi demanded that the Attorney General direct the US Attorney for DC to act on contempt citations for Josh Bolten and Harriet Miers, the Attorney General replied, "Yeah, I'm going to have to go with no."

Attorney General Michael Mukasey on Friday rejected referring the House's contempt citations against two of President Bush's top aides to a federal grand jury. Mukasey says they committed no crime.

Mukasey said White House Chief of Staff Josh Bolten and former presidential counsel Harriet Miers were right in refusing to provide Congress White House documents or testify about the firings of federal prosecutors.

"The department will not bring the congressional contempt citations before a grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers," Mukasey wrote House Speaker Nancy Pelosi.

It's a good thing we have someone so wise at the Justice Department to put his judgment in front of the letter of the law. Both Dianne Feinstein and Chuck Schumer must be so proud of their little angel.

Pelosi responded swiftly, and in fine fashion:

“Anticipating this response from the Administration, the House has already provided authority for the Judiciary Committee to file a civil enforcement action in federal district court and the House shall do so promptly. The American people demand that we uphold the law. As public officials, we take an oath to uphold the Constitution and protect our system of checks and balances and our civil lawsuit seeks to do just that.”

Of course, there is another way that doesn't tie up the case years into the future as it winds through the court system, and that's inherent contempt.

Under the inherent contempt power, the individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned. The purpose of the imprisonment or other sanction may be either punitive or coercive. Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least in the case of the House, beyond the adjournment of a session of the Congress) until he agrees to comply. The inherent contempt power has been recognized by the Supreme Court as inextricably related to Congress’s constitutionally-based power to investigate.

Extreme, to be sure. Which is exactly what is called for in this case. The Administration is thumbing its nose at the Congress. The Congress appeals to the legal system but the Administration also controls that through the Justice Department. This is a scandal about US Attorneys and a US Attorney who WASN'T on the firing list, i.e. a "loyal Bushie," is hardly to be expected to prosecute. If this eventually goes all the way to the Supreme Court, there are plenty of "loyal Bushies" on there as well. But as it's a "political question" that the courts will likely find the other branches to need to settle amongst themselves, that's not likely. Inherent contempt is the only process where Congress doesn't have to rely on another government branch. Quoting Kagro X:

Let's face it: if the "administration" simply refuses to budge, the Congress either has to fold its tent and go home, or enforce on its own authority the subpoena power the American people voted for. Given that we've reached this impasse -- and we knew it was coming -- over an investigation into the hyper-partisan and hyper-politicized nature of the U.S. Attorneys, inherent contempt proceedings would appear to be the first and most direct resort of Congress in enforcing its mandate.

It would also appear to be the last stop short of impeachment. And with that remedy currently "off the table," Congress needs to speak -- and speak soon -- about how it intends to protect its prerogatives.

So far, that answer has been "not at all." So it's really a stark choice: either move forward with inherent contempt, impeachment, or go home. I know the Democratic leadership has their fingers in their ears until next January, just trying to run out the clock on the Bush Administration. Thing is, Bush has the same idea; he wants to get away with his crimes, protect his secrets and immunize himself, his staff, and his corporate partners. The only people standing in the way are members of Congress, and they're standing like bowling pins, waiting for the next strike to send them flying.

Pelosi recognizes that the future of Congress as a co-equal branch is at stake, but refuses to play as close to the edge as the White House. You're not going to win that way, and in this case "winning" isn't just a political victory, but a victory for the relevance of American government. Not worth risking that to get an extra few more electoral votes.