"As it considers the contempt resolutions, we think it is important that the Committee appreciate fully the longstanding Department of Justice position, articulated during Administrations of both parties, that "the criminal contempt of Congress statute does not apply to the President or presidential subordinates who assert executive privilege."
As occured during the 1980's in the case of EPA Administratior Ann Gorsuch, where the DOJ refused to persue a Contempt Citation against an Administration Official where the President had exerted executive priviledge, history is repeating itself.
the Office of Legal Counsel issued an Opinion concluding that the statute is unconstitutional to the extent it requires a U.S. Attorney to prosecute a contempt action where the noncompliance is based on the President's assertion of executive privilege: In OLC's view, a U.S. Attorney thus "is not required to refer a contempt citation in these circumstances to a grand jury or otherwise to prosecute an Executive Branch official who is carrying out the President's instruction." 8 Op. O.L.C. 101, 102.
From current reports the vote by the full house on Contempt will not occur until after the August recess - which means this issue has some time to simmer fully before it boils over.
Once that vote occurs there are two primary courses of action which can be taken by the House, one is to go to the courts and seek to force the President to prove the legitimacy of his Executive Priviledge claims.
The other option, rather than allowing the Administration to continue to run out the clock is for the House to invoke Inherent Contempt, and have Miers and Bolten brought by in their Sargeant at Arm to either testify or rot in the Houses own detention until deciding to do so.
Some would argue that jurisdiction would limit the ability of the House Sargeant at Arms from bringing Meirs and Bolten into custody - "They could stand across the street from the Capitol and still be safe" - but history has shown that not to be the case.
The Supreme Court has affirmed Congressional power to frog-march witnesses before the bar of Congress. In McGrain v. Daugherty, a recusant witness (the AG's brother) refused to comply with issued subpoenas. The Senate issued a warrant authorizing its sergeant at arms to take custody of the witness and bring him before the bar of the Senate to answer questions. The deputy sergeant at arms went to Cincinnati, Ohio to pick up the uncooperative witness to place him in custody. The witness objected by filing habeas corpus, but the Supreme Court upheld Congressional legal authority to use its own process to compel persons to appear and testify on issues needed to enable Congress to exercise its Constitutional legislative function.
If the House can have the Attorney General's brother arrested in Cincinnati, they can go get Harriet Miers and Josh Bolten in Virginia. Oh, and irony of having Meirs or Bolten file Habeaus Motions against their detention would be most delicious.
One other matter which shouldn't be ignored concerning the Gorsuch case - she eventually did provide the information Congress was looking for.
After legal cases and a Court dismissal of the Executive Branch's suit, the parties reached an agreement to provide documents.
Not only that EPA Official Rita Lavelle served jail time.
Indicted for lying to Congress; convicted; sentenced to 6 months in prison, 5 years probation thereafter, and a fine of $10,000
If the Bush Administration is looking to repeat the path followed by Reagan, when he attempted to hide abuse of the Superfund program and they ended up the losing side of established case law, he's headed down a road that they aren't likely to survive.
Vyan
