Congress Tries New Tactic on Subpoenas

Overshadowed by a heated presidential election battle and daily news of a sinking economy, a lawsuit that could change the shape of governmental power is making its way through U.S. District Court in Washington, D.C., challenging the Bush administration's attempt to flout contempt of Congress charges against one current and one former aide. Its outcome could limit the scope of presidential power by providing Congress the means to investigate the inner workings of the executive branch without relying on the goodwill of one of the executive's most powerful agencies, the Department of Justice.

Earlier this month, the House Judiciary Committee filed a motion (PDF file) against current and former Bush administration figures in civil court, with the limited aims of securing testimony and documents regarding the firings of nine U.S. attorneys by the Justice Department under the watch of then-Attorney General Alberto Gonzales. Acting on White House orders, both White House Chief of Staff Josh Bolten and former White House Counsel Harriet Miers have refused to comply with the committee's subpoenas. And Attorney General Michael Mukasey recently blocked the Justice Department from prosecuting the White House staff members for criminal contempt of Congress. This means it's up to the House of Representatives to pursue the contempt citations, which could set a legal precedent that would make it more difficult for future presidents to defy the will of Congress.

When the full House votes to issue statutory contempt citations against individuals who impede congressional investigations, the criminal charges are usually referred to, and prosecuted by, the Justice Department. But the Justice Department, like all executive branch agencies, is ultimately controlled by the president and his appointees, and this time around, with current and former federal officials under the microscope, the White House is refusing to abide by the rules. The House Judiciary Committee's attempt to have its case heard in civil court, bypassing the Justice Department, marks a departure from past practice -- but the maneuver could provide Congress with a new recourse in any future attempt by the executive branch to stymie congressional oversight.

Many administration critics, particularly in the blogosphere, have grown frustrated with Democrats on Capitol Hill for not resurrecting a practice known as "inherent contempt" -- an arcane authority that allows Congress to prosecute contempt internally and that could, in theory, result in the arrest and incarceration of both Miers and Bolten by the House Sergeant at Arms.

"There is something of a sense that it is not productive for Congress to use its inherent contempt power," explained Mark Agrast, a constitutional law expert and senior fellow at the Center for American Progress. "It's just too unwieldy and too untried to be used in the modern era."

But in filing the motion currently before the district court, the Judiciary Committee dispensed with the inherent contempt option. The House contends that if it were to invoke its inherent power, it would ultimately find itself arguing the contempt issue before the same court, but at a much later date, after the expected petitioning of the court by the defendants for writs of habeas corpus.

The well-publicized and apparently politically-motivated firings of nine federal prosecutors set off a firestorm of controversy in early 2007, and prompted months-long investigations by both congressional bodies -- investigations the White House has done its best to thwart. In June, when the House Judiciary Committee issued subpoenas for documents and testimony from Bolten and Miers, the White House claimed a sweeping executive privilege over the information and barred the two from complying. The House responded in kind, voting on February 14 of this year to pursue criminal contempt charges against the aides -- a move that White House spokesperson Dana Perino termed "a partisan, futile act", and one, she said, that the Justice Department would not enforce.

In this, at least, the administration was true to its word: Jeffrey Taylor, U.S. Attorney for the District of Columbia, acted on the orders of the White House and refused to take up the case.

"This is a surprising obstruction of the process by [the administration]," said Jonathan Turley, an authority on constitutional criminal procedure and a law professor at George Washington University. "Many constitutional experts, including myself, have concluded that the Congress clearly has the better position. The White House has clearly overextended the scope of executive privilege."

The Judiciary Committee is seeking a fairly narrow ruling -- one that would compel Miers to attend hearings before the committee, and order both Miers and Bolten to divulge the nature (though perhaps not the contents) of a bundle of undisclosed documents over which the White House is claiming executive privilege. But the civil filing is a legal maneuver without precedent, and the possibility exists that the White House could prevail despite experts' view of its weak legal standing. Last year, as the contempt proceedings were just kicking off, the nonpartisan Congressional Research Service (CRS) released a report that assessed the legal prospects of a civil suit by a congressional committee. "[T]here is a likelihood that a reviewing court will find no legal impediment to seeking civil enforcement of subpoenas or other committee orders," CRS found.

"The problem with going to court is that you risk a negative precedent," explained Turley. And it's a risk for both sides: On one hand, Judge John D. Bates of the U.S. District Court could simply decide that Congress has no standing to pursue the enforcement of contempt citations in a civil court, setting a precedent that could close the civil court avenue to Congress permanently. But if he doesn't throw the case out altogether, and instead issues a ruling on the merits of the case, his decision will almost certainly be appealed by the losing side to the Circuit Court for the District of Columbia, a process that could take the case to the Supreme Court.

Were the Judiciary Committee to be rebuffed, it would likely pursue a fast-moving appeal. The White House, by contrast, would be inclined to slow things down. "If the court agrees [with Congress], I suspect the White House will file an appeal...[based] on the calendar -- not the issue," said Turley. He went on to express doubts that Mukasey and the Justice Department believe they have a case, but the Bush administration "will be simply trying to run out the clock." Judge Bates has scheduled arguments in the case to begin on June 23.

If appeals have not been exhausted when this session of Congress ends in December, the defendants -- Miers and Bolton -- could plausibly contend that the subpoenas have expired, and that the matter should be closed, or at least readdressed when the new Congress is seated (and a new White House has been staffed) in January 2009. Not only would that let the Bush administration largely off the hook; it would leave the question of the legitimate scope of executive privilege unresolved.