Congress is running out of time – but not options – in a standoff with the Bush White House over executive privilege.
In a rare move, the House Judiciary committee voted along party lines this week to cite two top presidential aides with criminal contempt. Barring a compromise, the next move is a vote of the full House, likely after the August recess.
At issue is whether Congress can compel White House Chief of Staff Joshua Bolten and former White House counsel Harriet Miers to answer questions under oath on the firings of nine US attorneys last year. Democrats in Congress say they need this testimony and related documents to determine whether the firings were for improper motives that could undermine public confidence in the rule of law.
But even if lawmakers approve these contempt citations, President Bush can tie up the matter in legal red tape until the end of his term. Moreover, both sides have a lot to lose if the issue is finally settled in court, rather than through political compromise.
"We're talking about a matter that is at the heart of executive power: the president's ability to receive confidential advice on an executive power that is indisputably his," says Douglas Kmiec, a professor of constitutional law at Pepperdine University in Malibu, Calif., and former Reagan administration official. "But this constitutional principle has always existed in a quiet, untested tension with Congress's ability to investigate. If the law courts pronounce in a black-and-white fashion, they will advantage one side or another going into the future."
Until 1857, the House and Senate conducted their own in-house trials whenever they felt that the executive branch or journalists abused congressional powers. In 8 of 14 cases since 1795, the target of the contempt citation either agreed to testify and produce documents or was punished, according to a July 24 report by the Congressional Research Service.
But the process was cumbersome and the penalties – including being jailed inside the Capitol – only lasted as long as the Congress was in session. So, Congress created another option: a criminal contempt of Congress citation to be settled in the courts. Currently, that's a federal misdemeanor, punishable with a fine up to $100,000 and a year in jail.
Since that 1857 law, contempt citations have been voted out of committee nine times. In every instance, "There was either full or substantial compliance with the demands of the committee that had issued the subpoena," the report concludes.
Not surprisingly, contempt citations are typically issued at times of divided government. Past targets include Secretary of State Henry Kissinger (1975); Secretary of Health, Education, and Welfare Joseph Califano (1978); Secretary of the Interior James Watt (1982); and Attorney General Janet Reno (1998).
The criminal contempt statute has advanced to a full vote by the House only once, in a dispute between the Reagan White House and the Democrat-controlled House over litigation by the Environmental Protection Agency. It was resolved by compromise before reaching the courts.
But this time, the Bush administration is maintaining a tougher line. Although federal law says that it's the "duty" of the United States attorney to bring the matter before a grand jury for action, the White House has already signaled that if Congress votes for contempt citations, it will instruct the US attorney not to take the issue to a grand jury.
"Historically, these kinds of struggles have been worked out through some type of compromise," says Charles Cooper, a former Reagan administration official in the Office of Legal Counsel, who drafted the opinion that the Bush administration is relying on in its standoff with Congress over criminal contempt citations.
"I haven't given up hope that this will be worked out. But if we assume for a moment that there's just no give at all anymore on either side, then the president's analysis of how at least the contempt citation will play out is quite accurate: The US attorney would be bound as the president's subordinate and as the functionary responsible for exercising the president's law enforcement power to obey the president and not to present that citation to a grand jury," he adds.
Lawmakers on the House Judiciary panel debated both sides of that issue on Wednesday. Rep. James Sensenbrenner (R) of Wisconsin, a former chairman of that committee, said that the contempt resolution was "an unnecessary provocation of a constitutional crisis" that the White House was likely to win.
"I'm quite concerned about the fact that if we do bring a case to court ... and lose, then that is going to be viewed as a blank check by the present president and the future president to do whatever they want to to effectively stiff the Congress in discharging their oversight responsibilities," he said.
In his opening statement, chairman John Conyers (D) of Michigan said that it's a risk Congress must take. "If we countenance a process where our subpoenas can be readily ignored, where a witness under a duly authorized subpoena doesn't even have to bother to show up, where privilege can be asserted on the thinnest basis and in the broadest possible manner, then we've already lost. We won't be able to get anybody in front of this committee or any other," he said.
Meanwhile, lawmakers are prospecting other ways out of the impasse. Sen. Arlen Specter (R) of Pennsylvania has suggested the possibility of appointing a special prosecutor or reverting to the earlier model and trying a contempt citation in the Senate.