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Could Congress jail Attorney General Eric Holder for contempt?

Congress has jailed those deemed in contempt before but never a sitting Cabinet official – and not recently. Moreover, the few times Congress has locked down people within the Capitol, it has not turned out well for Congress.

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The penultimate congressional jailing came in in 1848, when the Senate imprisoned New York Herald reporter John Nugent for publishing the then-secret Treaty of Guadalupe-Hidalgo, which ended the Mexican War. But the Herald kept publishing letters from Mr. Nugent during his weeks of incarceration, with the dateline “Custody of the Sergeant-at-Arms” and doubled Nugent’s salary while he was locked down in Congress.

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Weary of leaving Nugent to berate them from the relative comfort of his new digs in a Capitol Hill committee room – and embarrassed by his paper’s publication of a long list of senators who had leaked secret documents to the media – the Senate released Nugent with the face-saving claim of looking out for his health.

In 1871, the Senate put two reporters from The New York Tribune into the congressional stockade, after they paid $500 to purchase the secret Treaty of Washington, settling America’s Civil War claims with Great Britain.

“We know the spirit that prevails through the profession to which these young gentlemen belong,” said Sen. Oliver Morton, according to Mr. Ritchie’s book. “Their honor, their reputation, their pride, their word, have all been pledged that they will not make this disclosure, and they will go up to this disconsolate, gloomy dungeon and stay there before they will do it.”

Unfortunately, there was no “gloomy dungeon,” as Mr. Ritchie points out – the reporters were housed in the Pacific Railroad Committee Room, were allowed to eat in the Senate dining room, and were frequently visited by their family, friends, and supporters. Both reporters were eventually released without offering a confession.

The House also moved against two members of the executive branch but didn’t jail either one. In 1879, the House arrested but did not imprison the US minister to China, George Seward, over claims that he had misappropriated funds while he was consul general to Shanghai. In 1915, the House arrested a district attorney in New York but likewise didn’t imprison him on Capitol Hill.

Last week, Democratic leader Pelosi told reporters that, as speaker of the House in 2007, she could have jailed White House adviser Karl Rove, but declined. "There’s a prison here in the Capitol," she said. "If we had spotted him in the Capitol, we could have arrested him.”

The Bush White House refused to let Mr. Rove testify before a House panel investigating the firing of several US attorneys, citing executive privilege.

Had then-majority House Democrats moved on a contempt vote, Rove would probably have commanded a well-appointed committee room, at least.

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