Not being mush of a masochist, I don't usually read emails from the
Democratic Whip in Congress, but I opened one Tuesday night and was
mildly excited to read that the U.S. House of Representatives would
spend Wednesday debating the "ENFORCE the Law Act of 2014." Wow, I
thought, which law will they pick? Will it be the Humphrey-Hawkins Full
Employment Act? Would I, moments from now, be phoning a bunch of people
to tell them jobs are on the way? Or ... wait a minute! Oh my god,
would large corporations be paying taxes now? Or will it be the
Kellogg-Briand Pact or maybe the U.N. Charter -- Are we about to
announce to the world that the wars are over? Perhaps, I thought, it's
going to be the anti-torture statute -- hot damn! I wonder when the
tickets for the CIA trials go on sale and how much a front row seat will
cost. Or are bankers going to be subject to laws? Or maybe, just maybe,
what they plan to enforce is the First Amendment or maybe the Fourth
Amendment, or -- hell -- any of the amendments. Can you imagine?
My excitement wore off faster than a Congressman hits his knees before a corporate lobbyist. It turned out that this bill is part of a trend I've been watching and writing about for years. Unwilling to impeach lawless presidents, members of Congress from both parties have been pushing for years the idea that Congress should sue criminal presidents in civil court. The Democrats pushed this more when Bush was in the White House, and the Republicans more now. The Enforce the Law Act is a Republican bill, but a bunch of Democratic amendments to it will be the subject of debate.
I started paying attention to this cockamamie idea of Congress suing the president in court around August 2008 when a group of Congressman Henry Waxman's constituents met with him and urged him to make use of inherent contempt. They were then obliged to explain to him what inherent contempt is (as I'll explain it a few paragraphs below). The 110th Congress had probably seen more requests, subpoenas, and contempt citations ignored than all previous Congresses combined, and Waxman had certainly endured more such insult than all other committee chairs combined. He single-handedly destroyed whole forests with the flood of letters and requests and subpoenas he sent down Pennsylvania Avenue, and yet he was apparently unaware of a procedure commonly used by Congress through most of this nation's history that would actually compel people to show up and answer questions and produce documents.
In 2008 and 2009 a vague sort of awareness of inherent contempt crept into the minds of certain committee members and party leaders, almost entirely as a result of thousands of citizens demanding that they immediately make use of it. Quasi-grass-roots groups afraid to demand impeachment took up the cry for inherent contempt, and some pro-impeachment groups advanced the cause as well, even though their eyes were set on a bigger and better prize.
Ron Suskind, who's just given us a moving story about autism, in 2008 gave us a book reporting that Iraq's intelligence chief had informed the United States prior to the 2003 invasion of Iraq that Iraq possessed no weapons of mass destruction. George Tenet and the White House admitted the truth of this, but absurdly dismissed it as unimportant. Congress lets such outrages pass at its own peril.
Congresswoman Zoe Lofgren wrote the following dismissive letter to her constituents who were demanding inherent contempt:
"Thank you for contacting me about Karl Rove's failure to appear before the Judiciary Committee. I appreciate that you took the time to share your thoughts with me. The Judiciary Committee is taking Karl Rove's failure to testify very seriously, and we are currently considering all options - including contempt proceedings -- to compel him to answer important questions regarding the firing of several U.S. attorneys. Some have suggested that Congress implement 'inherent contempt' as if that is a viable option. The jail cell in the basement of the Capitol doesn't exist and the Sergeant at Arms is an over 60 year old executive. Congress is not a police force, and we will likely need to continue to utilize the courts and system of justice to pursue these matters. Again, thanks for being in touch. Please do not hesitate to let me know if I may ever be of assistance to you or your family."
Congresswoman Lofgren was very badly informed or chose to pretend to be. The age of the Sergeant at Arms is not a decisive factor in the question of whether the Congress will engage in what for most of its history was understood as "inherent self-protection". There is a Sergeant at Arms for the House and one for the Senate, there are deputies, and there is an entire Capitol police force. In one of the earliest uses of "inherent contempt" a prisoner of the United States Congress argued that a warrant used to arrest him was invalid because it had been addressed to the Sergeant at Arms and had been enforced by the Deputy Sergeant at Arms. The U.S. Supreme Court ruled that the warrant was still valid; and that practice was subsequently followed for many decades. The Sergeant at Arms is not on his own, but is permitted and required to employ subordinates as needed. In 1877 a Deputy Sergeant at Arms was instructed to accompany a Congressional prisoner to New Orleans to procure telegrams he had hitherto refused to produce when subpoenaed, and to accompany another prisoner to New York to be seen by his physicians. In addition, a Sergeant at Arms incapable of performing his duties can be reassigned. With labor unions banned on Capitol Hill, there shouldn't be any legal difficulties in immediately rearranging a few employees of the government.
When inherent contempt began to be discussed in 2007, having not been heard of in some 75 years, the Politico (never a publication overly careful with facts) reported that the jail had been razed in 1929. Congresswoman Lofgren, on the other hand, maintained that "the jail cell in the basement of the Capitol" doesn't exist. She seems to take no position on whether such a thing ever did exist. Both of these replies wildly miss the mark. The House or the Senate or, in fact, any committee thereof, has the power, according to tradition and to rulings of the U.S. Supreme Court, to instruct the Sergeant at Arms of the House or Senate to imprison anyone being charged with contempt of Congress or being thereby punished for contempt of Congress. The difficulty of finding a place to imprison them has been easily solved in a variety of ways and could be again quite quickly. In fact the Capitol Police have plenty of spaces for holding prisoners. Trust me, I've been in them.
The reference to 1929 may be a reference to the building that stood on the current site of the Supreme Court building, construction of which began that year. The Old Capitol Prison was not the only thing housed in that building when it was there, was not among the initial uses for that building, and had long since ceased to be used by Congress when the building was razed. During the latter part of the 19th Century and the early part of the 20th, the common jail of the District of Columbia was routinely used by the Sergeants at Arms of the House and Senate. While the jail did not belong to Congress, an arrangement was made to use it, housing the occasional "contumacious witness" in the same building with the general DC prison population. The District Jail is described in this 1897 New York Times article. This 1934 article from Time Magazine discusses the Senate's use of the District Jail to punish contempt in both 1860 and 1934.
In 1872 a Congressional committee discussed the problem of the DC jail not being controlled by Congress, but apparently concluded that the Sergeant at Arms could keep control of a prisoner in that jail. In other instances, including that same case, a prisoner of Congress was summoned to appear by a court, and Congress instructed the Sergeant at Arms to transport the prisoner to the court to explain the situation but not to release the prisoner from his control.
Congress has not always made use of outside jails. In 1868 this measure was approved: "Resolved, That Rooms A and B, opposite the room of the solicitor of the Court of Claims, in the Capitol, be, and are hereby, assigned as guardroom and office of the Capitol police and are for that purpose placed under charge of the Sergeant-at-arms of the House with power to fit the same up for purpose specified.... Resolved, That said Wooley, for his repeated contempt of the authority of the House, be kept until otherwise ordered by the House in close confinement in the guardroom of the Capitol police by the Sergeant-at-Arms until said Wooley shall fully answer the questions above recited, and all questions put to him by said committee in relation to the subject of the investigations with which the committee is charged, and that meanwhile no person shall communicate with said Wooley, in writing or verbally, except upon the order of the Speaker."
The U.S. Capitol and the House and Senate office buildings are full of rooms that could easily be transformed into guard rooms, and are in fact almost certainly full of guard rooms already. The room where we held the Downing Street Minutes hearing in June of 2005 would work fine with very few modifications. And -- I'm sure this will surprise you -- DC is chock full of jails, several of them quite close to the Capitol. In fact, the Capitol Police make extensive and frequent use of them under an ongoing understanding with the custodians of the jails. The Capitol Police also hold people, at least temporarily, in a building very near the Senate office buildings.
Reviewing the early history of Congressional contempt reveals a mixture of offenses, including refusing to answer questions (on various topics), refusing to produce documents, failing to appear, etc., but also libeling Congress, assaulting a Congress member, beating a congress member with a cane, even Congress members themselves beating up a senator, and the case of a drunken citizen applauding inappropriately. While use of police force has disappeared as a response to recalcitrant witnesses, it is still routinely used for people who applaud inappropriately. When about 50 of us held a sit-in in Chairman John Conyers' office in 2007 to urge impeachment, he had us taken to a nearby jail by the Capitol Police. The age of the Sergeant at Arms didn't seem to get in the way. When Cindy Sheehan was arrested for wearing an unacceptable T-shirt to a "State of the Union" speech, the Capitol Police sent us and the media on a wild goose chase to several different jails that they use before arriving at the one from which they actually released her.
But if use of the police has vanished since 1934 as a tool for enforcement of Congressional contempt, then what did Congresswoman Lofgren mean by suggesting that her committee was contemplating "contempt proceedings"? Well, she meant that -- in fulfillment of the popular "definition" of insanity -- Congress would consider doing with Karl Rove what it had long been doing with Harriet Miers and Josh Bolten, that is: waiting for the executive branch of our government to go through some sort of magical conversion and begin prosecuting its own most loyal criminals.
In the early years of this country inherent contempt was not distinguished as "inherent". It was simply called contempt. But it was enforced exclusively by Congress, just as contempt of a court was enforced by a court, just as contempt of a state legislature or an earlier colonial legislature or the British Parliament was enforced by the very same body. While the Constitution did not mention contempt, it was the consensus of Congress, later supported by multiple U.S. Supreme Court rulings, that Congress had the inherent right to this form of "self-protection". This was understood most often as protection from disruptions and assaults, but also as protection from insult and from the erosion of Congressional power through the refusal to comply with requests or subpoenas. Interestingly, the record shows that a citation of contempt by Congress, or rather a warrant to arrest someone charged with contempt in order to put him or her on trial, does not have to be preceded by a subpoena.