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Last week I decided it was time to do a post on inherent contempt. I pulled a ton of research, filled up a 3-ring binder, highlighted all sorts of relevant passages, and blocked out some time on Sunday to write.
Then on Saturday, a Rutgers professor named Frank Askin beat me to it. You should go read his article, it really is a clear and authoritative explanation: Congress' Power To Compel.
However, I would like to point out that the blogosphere has been far ahead of the MSM when it comes to this. As far back as March of this year, Kagro X had a diary up at Daily Kos where he advocated "Dusting off Inherent Contempt."
P. Lukasiak at thenexthurrah also provided a really heads up insight:
p.lukasiak | July 20, 2007 at 09:42
The only place that Harriet can be held will be in local DC jails, because Congress controls DC, while Bush controls federal prisons. And procedurally, it is important that Miers be kept completely outside the Federal justice system.
Cited in Kagro X's diary is a link to a PDF of a wonderful "how to" book prepared by the Congressional Research Service: CRS Report for Congress (PDF).
It is literally a manual on methods of Congressional Oversight. I printed it out for future reference. It is a goldmine and explains just what your Congressional representatives can and cannot do. Please note, that the House and Senate have different paths when it comes to the exercise of contempt powers.
Anywhooo, for those who haven't the time to click through all these links and read all these long entries, the crib notes version is this:
If Harriet Miers continues in her lawless disregard of regularly issued legal process (the subpoena) the House can have the Sgt. at Arms arrest her and bring her to the well of the floor of the House where she will receive a trial --IN THE HOUSE OF REPRESENTATIVES ITSELF-- and if found guilty of contempt at that trial she can be held in jail as a civil contemnor until the first of two triggering events: 1) she purges herself of her contempt (like Judy Miller, she would "hold the keys to her own jail cell" and would be released as soon as she agreed to testify fully and truthfully) or 2) the term of the Congress which imprisoned her expired.
Trial in the legislative branch is cumbersome and time consuming, which is why Congress, some many years ago, went to the easier system of having the US Attorney for DC do the prosecution.
Nonetheless, the facts of the Miers contempt are pretty clear cut and easy to understand, so the actual presentation of evidence need not take more than a day or two.
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zed!
Is there any chance this will be done?
Sounds good to me.
Is there still a cell in the sub-sub-basement of the Capitol for contemnors?
Let’s bring her to justice.
Or I suppose you could take her across the street and lock her in Justice Thomas’ chambers. That’s a space that hasn’t been put to good use for a very long time.
Just do it.
she can be held in jail as a civil contemnor until the first of two triggering events: 1) she purges herself of her contempt
what kind of purgery is this?
LHP — Any ideas how to light a fire under Conyers to proceed with inherent contempt?
The view in this house is that the time for impeachment has arrived.
AP - President Bush is expected to claim executive privilege to prevent two more White House aides from testifying before Congress about the firings of federal prosecutors.
ET — are you here?
Ummm…first, the Congress would have to get their hands on them. I suspect the FBI or Secret Service or both Capital Police away from them. It might be interesting theater though.
Conviction requires only a simple majority?
So Rove will likely ignore his subpoena as well. Wouldn’t it be nice if Rove had his behind hauled into a DC jail along with Meirs and Bolton?!
I don’t think the DC jail system has any country club facilities. Might be a new learning experience for HM, one that would guarantee she “purges”.
I thought I read somewhere that there were cells in the basement of the Capitol? With slop jars?
I’d get a real giggle out of seeing Meirs, Bolton and Rove there…
It is cumbersome and time consuming, but they need to do it in the name of general deterence. They do it once, let her cool in jail for a week or so and this nonsense will stop.
Otherwise, you might as well kiss our constitutional republic goodbye.
ET on local radio right now.
We wish Senator Clinton would have more to say about all this Bush administration coverup and lying business. Senator: This is not the time to play it safe.
Mr. Gore. Now is the time for all good men and women to come to the aid of the party.
lhp–
Thanks a big bunch for a great summary and great links! The WH has thrown down the gauntlet. Now is the time for Congress to step up to the plate, or kiss our Republic goodbye.
Bob in HI
PS– I’ve updated the Prime the Pump workspace, especially with all the new material for impeaching Gonzales.
E.T.
I was on hold, when I heard your voice.
Good job.
(You said, KLEF when you mean KUDO.)
House Democrats really have no excuse for not doing this.
To do nothing about Miers’ clear act of contempt would only encourage the White House to commit additional crimes in ignoring Congressional oversight.
Hey lhp. Greetings all from chicago.
Brisingamen @ 16
time to re-enact the ending of The “Cask of Amontillado”
looseheadprop,
My only problem with Harriet being charged with Inherent Contempt is that she presents a sympathetic figure as the “wee, little woman getting beaten up by those big Congressional bullies.”
Rather, take her to the regular courts as I believe (and you know IANAL), she presents a far weaker case for Executive Privilege both as a private citizen AND a former WH Counsel (thanking Newt and his machinations against Clinton for this).
Instead, use Josh Bolten for the Inherent Contempt case since he’s just as much in contempt as the WH CoS and the visuals are far more compelling.
My $.02
phred @ 9
Inherent contempt was largely abandoned after the Teapot dome scandal becasue the thought was that trial before the full House was too time consuming and disruptive. That’s why they went to the system of referring contemts to the USAO DC, to get that job off thier plates.
However, it’s not Conyers, it’s Pleosi that is the problem.
Mitch?
Book’em Danno!
worth a look -
TPMtv: Dick Cheney Lying Liar Edition
Josh Marshall
Oklahoma kiddo @ 20
Finally got Al Gore’s book “The Assault on Reason” from the library (many people had all the copies borrowed). None of this crap is a surprise to him.
Gore ‘08!!!
BigMitch @ 22
Whatever - you have to call KLEF to get to KUDO - same owners…
Hey, ET, you stole my thunder.
were you listening to the show on the computer stream?
BigMitch @ 33
She’s still backstabbing Diane Benson. Your turn, amigo.
BigMitch @ 34
No, I’ve got a really long string and a couple of Campbell Soup cans.
looseheadprop @ 27
If it is Conyers committee that Miers is in contempt of, why can’t he begin contempt proceedings? Perhaps this is spelled out in your links, which at the moment, I don’t have time to read (tonight I will though).
I have to say I am getting good and tired of Pelosi being the road block.
she is talking about you now. “This is what I want to know. Jake vs. Diane: Where do you go? Taking calls”
punaise @ 25
That’s just sick.
I like it. But it’s sick.
egregious @ 24
I hear there was an I phone for your B-day. Lucky you
any advice?
Ed*ard Teller @ 36
OOOOOO-snarkalious.
LibertyLee @ 12
US Marshall’s serve the subpoenas. the “arrests” are done by the House Sgt at Arms, but I think he would employ the services of the Marshalls for that as well.
If they wait too long the term will end very shortly after they imprison her. Big whoop. The only upside would be if they promised her that if she doesn’t correct the contempt, then they will do it all again at the START of the next Congress and she can look forward to 2 years in jail.
BigMitch @ 42
The truth always helps. Shannon’s just muddying the waters here.
dakine01 @ 26
Problem is the one to take her to regular court is the USA DC, and Bush has forbidden him to do that. So, no help there–unless the USA has a brass set of gonads and decides that unreviewable prosecutorial discretion is just that–unreviewable.
The committee has already voted out a contempt citation, so it is up to Pelosi effectively as to what form of remedy shall be voted on the floor. Finding a place to ice Miers and/or Bolten is not particularly any problem.
bmaz @ 48
So I take it when the committee votes for “contempt”, Pelosi is the one who decides which kind of contempt?
Since she will be in the State of Texas - can she be extradited to DC ?
looseheadprop @ 27
are you sure about this lhp?
not that i’m doubting you… it’s just that i want to be sure before going ballistic.
Hey Folks,
In November of 06 I was very hopeful that this administration would be brought to its knees now I’m not so hopeful. Not being a lawyer I have had to read and re-read many well written and informative articles and posts here to try and understand what has happened. Much as I would love to see impeachment I’m afraid time is running out. The abuses our constitution have been allowed to snowball out of control. I pray its not too late but sure seems like it.
phred @ 38
Conyers Committee would vote to hold in contempt, then a resolution would go to the full House and be voted on there.
If the resolution passed, the contemnor (it doesn’t have to be Harriet, it could be Rove, he let them subpeona Cheney and do it with him–THAT would not have a sympathy factor)would be arrested and brought to the well of the chamber for trial before the full body.
If found guilty by the full house, the contemnor would be imprisoned (or suffer some other penalty like fines) until the expiration of the Congress that found that person in contempt.
Oklahoma kiddo @ 19
Questions for the Dem Presidential candidates:
Do you believe it is the proper use of the classification system to hide illegal, unethical, or embarrassing acts by the government or its officers? They must say “no” so the followup question is: In the spirit of your answer will you promise the American people to declassify ALL government secrets that cover up illegal, unethical, or embarrassing actions and forswear classifying any such actions by the government or its officers under your Administration?
looseheadprop @ 47
But that’s when it would go into the regular courts with Congress suing not only the WH but the DoJ to do the work as ordered by the Congress wouldn’t it? It appears obvious that the WH wants to force it into the courts so lets oblige them.
Praedor Atrebates @ 45
Yep, but doen’t this Congress go until 2008? Thats a healthy amount of time in pokey
Below are links to more CRS reports. I’ve been trying to read through these, in addition to the manual linked to in the post, but some of the finer points escape me. For example, if the Senate holds inherent contempt hearings, they say the Presisent of the Senate presides. That would be Cheney? That does not sound good. Can other people be President of rhe Senate for purposes of a hearing?
Why not skip anything that involves the DOJ or the courts and go straight to direct Congressional powers? The DOJ will either delay or obstruct. there are places in the judiciary that are wingnut dominated, especially around DC. I’ve seen a couple of polls saying the public supports the Congressional DOJ investigations, one said 70% of public and almost half of Republicans in favor. It would be news the media would have to cover. It would be a good and salutary process, if conducted fairly and with dignity and purpose. The public would get to watch George Will and David Brooks and Brit Hume go incoherently batshit over it. Which might be a good thing, in these circumstances -their ravings might be so loopy and deranged and insulting that they would discredit themselves for all but the the 25% dead ender wingnuts.
Anyway, links below. Any posts by the legal mavens at FDL, or elsewhere, explicating some of the finer points of the process would be greatly appreciated.
New CRS report on inherent contempt proceedings
http://www.scotusblog.com/mova.....report.pdf
Older CRS report on Congressional investigations and subpoena and contempt power
http://www.senate.gov/referenc.....L31836.pdf
Pelosi won’t impeach.
Pelosi and Reid caved on Iraq $$.
Overnighter wasn’t really effective.
Pelosi and Reid are going to go along with WH on FISA.
Congress is going to go ahead with recess.
Pelosi prides herself on being “dignified”. I highly doubt she would agree to physically restrain someone, especially Harriet Miers.
I hope she proves me wrong.
Big Mitch is kicking some serious AM Talk Radio butt in Anchorage right here! He’s fighting for Diane Benson and progressive issues bigtime.
looseheadprop @ 53
Cheney held in the DC jails in contempt of Congress at the mercy of the House… I’m gonna enjoy that mental picture for the rest of the afternoon…
How did I do, Phil?
LHP - I could be wrong on this, but I don’t think it is the US Marshalls that would assist, they are part of the DOJ. It is my understanding that the Capitol Police Dept. would be the backup; which should work out fine as Terry Gainer, the Sergeant at Arms for Senate used to be head of the Capitop PD, and Livengood, the Sergeant at Arms of the House is very friendly with them as well.
bmaz @ 48
Actually, I kinda like P. Luk’s idea of the DC jails. DC is directly governed by Congress. IIRC the executive branch does not have any role–someone correct me if I am wrong onthat point.
And DC jails have reputation of being vary scary places.
I think the House should cite Meirs for inherent contempt. A Federal Judge and/or SCOTUS would declare the whole process un-Constitutional in the post 9/11 USA..end of story. To paraphrase Steven Breyer, “Never have so few undone so much law in so short a time”. Legal precedent means nothing to the Roberts’ Court.
Is there any REASON to think that the Dems will actually do ANYTHING? Or is it just our eternal Hope that’s at play. I mean are the conditions right yet? What EVIDENCE do we have that suggests courage or decisive action on the part of Dem ‘Leadership’? Just wonderin’
just hopin’. Well, guess there’s the Diebold
er ballot box . . .
Ed*ard Teller @ 59
Gee, I missed my chance to defend Lieberman, eh?
phred @ 49
Phred - See LHP@53; I think that answers your question pretty much; however, the first step of contempt being voted out of committee has already occurred.
phred @ 49
If you mean civil contempt as opposed to crimainl contempt–the House can only do civil contempt. Civil contempt is the kind suffered by Susan McDougal and Judy Miller, where as soon as they comply with the subpoena–they get out, or the fines cease to accumulate.
Criminal contempt gets you a fixed jail term or fine regardless of whether you cooperate.
That kind of contempt is more often used for misbehavior in court (yelling at hte judge for example)
selise @ 51
Conyer’s Committee already voted to find contempt. However, Pelosi controls what gets to the floor for a vote.
So, if you want to liht a fire under somebody, it’s Pelosi b/c she is the next step in the process. Conyers has done his part for now
woo hoo. lhp! didnt even realize you were here (I was hanging around downstairs not paying attention as usual.) I just love your stuff! Gotta go read now. brb.
Perhaps the Speaker needs to spell out exactly what is her perception of the Democratic agenda. They used to call these things position papers. Before K-Street got a strangle hold on both parties.
BigMitch @ 60
You kicked some serious butt. She painted me as a Benson employee, which I am NOT, but she had no way of knowing where you’re coming from. She really doesn’t know Jake like I know Jake, that’s for sure. The most anti-Diane thing she’s trying to create is that Diane hasn’t proven herself because she didn’t have to debate major Dems ’cause they wouldn’t run against Don, and she didn’t prove herself against Don ’cause he wouldn’t show up to debate her. WTF?!
looseheadprop @ 63
Oh no, you are absolutely right. There are a couple of DC jail facilities that could be used if they cannot unearth the dank cell in the basement of the Congress/Capitol. Cask of Amantillado indeed.
LHP! OT: Remember “Blank” from TPM? Kos is going nuts on it today on at least 2 diaries that made it to the top of the rec. list.
bmaz @ 67
Yep, it did, our comments crossed in the mail — thanks bmaz
whoa. aren’t we gonna get to see yours? I bet it is much snarkier!
Praedor Atrebates @ 54
Actually, the statues relating to classifiaction expressly forbid classifying a document to cover something up.
Mary (AkA MAry 4) has written extensiely on this topic inthe comment threads
looseheadprop @ 46
But you could use Miers to test USA resolve and perhaps set up some other action (like impeachment of the USA, just to demonstrate Congressional power and resolve). Right now, she’s relatively unimportant, and you can go back and get her with inherent contempt if the USA refuses to act.
But use the inherent contempt on Josh Bolten, Rove, and others currently in Bush’s outer office. Strip away Bush’s supporters and he’ll collapse more quickly.
LibertyLee @ 12
Did you say “hands”? Josh Bolten has a special relationship with KommanderGuy’s hands.
____________________
He keeps a copy of the best-selling children’s book Walter the Farting Dog on his office’s coffee table. His wall collection of Bush photos, typical throughout the White House complex, is unique. The pictures focus exclusively on Bush’s hands at key moments in his presidency. Not a single photo of Bush’s face can be found. “Josh is extremely eclectic,” explained Card. “His knowledge base is much, much broader than just policy or budget numbers.”
dakine01 @ 55
You mean bring a mandamus action? Oh,that’s a tough row to hoe
OT or is it?
The Repugs threaten to shut down Congress because of a wingnut judge…
http://rawstory.com/news/2007/....._0801.html
oh heck, I just gotta share this (and it’s actually on topic!):
“On March 26, 1848, the Senate arrested a journalist and imprisoned him in a Capitol committee room.
(snip)
Under questioning, Nugent refused to disclose his sources to Senate investigators, saying only that in this instance they were neither senators nor Senate officers. The frustrated investigating committee thereupon ordered him to be arrested and confined to one of the Senate’s committee rooms. As the Herald retaliated by publishing the names of the Senate’s most cooperative leakers, Nugent spent his captivity in comfort, receiving a doubled salary while issuing his regular columns under the dateline “Custody of the Sergeant at Arms.” Each evening he accompanied the sergeant at arms to that officer’s home for a good meal and a comfortable night’s sleep. From time to time, the full Senate summoned Nugent to answer questions, but always without success. After a month, the Senate realized the futility of further incarceration and released its prisoner on the face-saving grounds of protecting his health. Who actually leaked the treaty? The historical evidence points to Secretary of State Buchanan.”
Source: U.S. Senate.gov
Ed*ard Teller @ 72
I think the best thing was to turn the debate from “who is a better democrat” to “who thinks Bush is a criminal.”
wesgpc @ 57
Both Senate and House have inherent contempt poweers. However, they are not identical. In either case, exercise of inherent contempt requires a trial of the contemnor by the full body (either house).
They don’t need DOJ or the courts to do this.
Throw her in the slammer!
looseheadprop @ 68
Ok, let me try this again, ’cause I thought I understood what I was talking about, but perhaps I don’t.
In civil contempt there seems to be two flavors: “inherent” which is tried in the House without involving the DoJ or the executive branch in any way, and “?” which goes through DoJ
What is the name that goes where the “?” is? And does Pelosi decide which to choose or does she only control whether or not there is a vote (but other Reps could offer up either version to vote on)?
So if Clusterfuck pardons Harriet for contempt– are we dead in the water?
Hey,hey, hey now. don’t start down the path of any writ of mandamus,; whether explaining it (good luck) or implementing it (worse still).
phred @ 60
It’s a fun fantasy. I great metnal image. Sadly, I doubt Madame Speaker has a the same taste in daydreams
nonplussed @ 13
in the House. 60 votes in the Senate. that’s why the House hearings are necessary. plus, that’s where impeachment begins.
Senator Clinton: take off the gloves. Obama is not your problem. The GOP and the progressives are.
Can the house send it’s officer to Texas to bag Harriet?
Brisingamen @ 16
a locked door but no potty. maybe she can borrow some diapers from Vitter, eh?
looseheadprop @ 76
Thanks. So…it goes to ONE question rather than two: Since it is illegal by law to classify actions as part of a cover-up, will you promise the American people that you will declassify ALL classified information by ALL previous Administrations that involved illegal or unethical acts?
It is impossible to believe that ANY classified item that involves an illegal, unethical, etc, act was NOT done to hide those in the dark. It needs to be made expressly clear that the classification system cannot be used in any way, shape, or form on illegal or unethical actions. “National Security” interests must NEVER EVER trump the right of the People to know when their government violates the law or the Constitution. So…I want declassification of ALL documents and records having to do with actions such as Iran-Contra, for instance, torture, extraordinary rendition, violations of the Geneva Conventions or the Conventions Against Torture, Abuse, and Inhumane Treatment, etc. ANYTHING that involves these are inherently illegal and unethical acts and must be published openly and fully.
I also feel that the statutes need “updating” to limit classification to no more than 20 years. At the 20-year point it automatically is declassified except in cases of still current intel means or methods (yeah, right, 20 years later still current…). As for military capabilities…there is NO technology worth a shit or worthy of classification after 20 years.
My question: is there any reason to wait at all the start the Congressional process. It is not part of the regular judicial system. It is alterative process. Why should any additional attempts be made to go through the courts via DOJ action after the DOJ has demonsrtrated bad faith and evidence of engaging in obstruction?
The only objection I can think of is the corporate media will go absolutely insane. There will be endless screeching about mob rule, and lurid predictions of Waxman, Conyers and Leahey leading mobs of deranged hippies and biker gangs rampaging through the suburbs, debaucing the women, kicking the dogs and taking peoples’s stuff, with Frank and Rangel setting the guillotine in some undisclosed location.
But with 70% of the public in favor, and an unusual proceedure that has not been used in almost 75 years, I think people will follow it closely. It would be an implicit declaration of a serious constitutional crisis, that alos indicates willingess to lead and take constructive action. The voters will judge for themselves whether it is necessary and proper. Right?
Why shouldn’t they just announce that what part of the DOJ is not too dysfucntional, is too corrupt to use for Congressional investigations, then get cracking on Congress doing something directly itself?
rwcole @ 91
Would Governor Perry allow extradition?
What size figurative fire do we have to light under Pelosi for her to notice that she’s going to get burned as long as she’s sitting on this? It isn’t like we’re not letting her hear about what the options are, and what can be done. Does her staff even pass this stuff on, or is it all roundfiled as more DFH trash?
rwcole @ 92
That would be extraordinary. And by the way, the term for sending a prisoner from one state to another is “rendition.”
Extraordinary rendition. Not just for foreigners anymore.
looseheadprop @ 27
I should think that Nancy would be showing some severe disrespect to Chairman Conyers if she declined to pursue inherent contempt. What if it were the other way around?