A Congressional subpoena: to the Bush administration, it’s just a piece of paper.
The administration will not permit a U.S. attorney to enforce a citation of contempt against Congress, as federal law instructs. That may shock you, but it’s all old news, “a senior administration official” tells The Washington Post:
“A U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case…. And a U.S. attorney wouldn’t be permitted to argue against the reasoned legal opinion that the Justice Department provided. No one should expect that to happen….
“It has long been understood that, in circumstances like these, the constitutional prerogatives of the president would make it a futile and purely political act for Congress to refer contempt citations to U.S. attorneys.”
Of course, the expert on executive privilege quoted by the Post doesn’t think it’s such a settled question (the president’s is a “breathtakingly broad assertion”). The administration points to an opinion from the Justice Department’s Office of Legal Counsel during the Reagan years as support — of course, that’s just an opinion, which remains untested by the courts. The logic is that a U.S. attorney, as a subordinate of the executive branch and thus a representative of the president, would be prosecuting another presidential subordinate for asserting executive privilege. And you just can’t have that. Or as an expert puts it to the Post: “Because we control the enforcement process, we are going to thumb our nose at you.”
So what now? Certainly with the outright contempt being shown for Congress by the administration, it won’t be long before they send the contempt right back. Harriet Miers will likely be first up, for her refusal to testify about the U.S. attorney firings, followed closely by White House chief of staff Josh Bolten, who, on behalf of the White House, has refused to turn over documents. The Chair of the Republican National Committee might also be cited with contempt for refusing to turn over White House emails on RNC accounts. Also under subpoena and the likely subject of an executive privilege battle are the documents related to the president’s warrantless wiretapping program
But if the U.S. attorney is unwilling to enforce a criminal citation of contempt, all those matters would end there unless Congress took other steps.
There is the option of inherent contempt, where the House or Senate Sergeant-at-Arms would seize the offending witness. A kind of Congressional trial would follow. If found guilty, the person could be detained until compliance with the subpoena or until the session of Congress ends. As the Post notes, that hasn’t happened since the 1930’s and (much to the chagrin of many TPM readers) seems unlikely to happen now.
As Marty Lederman points out, another option remains: “Congress could file a civil action in federal court seeking declaratory relief, or an injunction requiring enforcement of its subpoena.” No doubt the Bush administration would seek somehow to quash that option, too. That would start a likely long process through the courts of motions, counter-motions, and appeals all the way up to the Supreme Court.
Yep. As we said before, a president with nothing left to lose makes for a formidable stonewaller.