The Turd Blossom Special: Inherent Contempt Proceedings

Posted by AzBlueMeanie:

McCain campaign adviser, Fox News analyst, and former White House adviser Karl Rove today ignored a subpoena from the House Judiciary Committee to testify about allegations of political pressure at the Justice Department and his alleged role in the prosecution of former Alabama Governor Don Siegelman.

A House subcommittee voted 7-1 Thursday to reject Rove’s claim that executive privilege freed him from an obligation to testify, leaving open the possibility that he will be held in contempt.

Judiciary Committee Chairman John Conyers seemed hesitant to rush forward with contempt proceedings Thursday, though. In a letter to Rove’s lawyer, Robert Luskin, Conyers expressed his disappointment and insisted that Rove comply with the subpoena, which he has already flatly refused to do, before the committee would be forced to take drastic action.

"This letter is to formally notify you that we must insist on compliance with the subpoena and urge you to reconsider your position… . Please let us know no later than Tuesday July, 15 if Mr. Rove will comply with the subpoena, or we will proceed to consider all other appropriate recourse," wrote Conyers and Rep. Linda Sanchez, chair of the Judiciary subcommittee Rove snubbed Thursday.

Last week, Sanchez and Judiciary Chairman John Conyers threatened to hold Rove in contempt if he followed through on his promise to defy their subpoena.

The House already has voted to hold two of President Bush’s confidants in contempt for failing to cooperate with its inquiry into whether the administration fired federal prosecutors for political reasons, White House chief of staff Josh Bolten and former White House counsel Harriet Miers.  That matter is now in court.  The Raw Story | Rove disses Congress, refuses subpoena to testify

For the uninitiated, this is how the assertion of a claim of privilege works.  First, you do not have the right to simply refuse to appear.  This will result in the issuance of a bench warrant for your arrest in a court of law.  In some cases, the Judge may even order law enforcement to go and arrest you, and haul you into court.

Second, the assertion of a privilege does not relieve you from answering questions.  You must still answer questions that do not relate to a privileged communication.  And you must assert the privilege in response to to particular questions about a privileged communication.  Got it?

The Bush injustice department, however, has devised a rather novel theory that the President may assert a prophylactic executive privilege to prevent any executive department employee, whether the president has ever held a privileged conversation with that executive department employee or not (or has ever met the employee), from appearing before Congress to answer questions.  In fact, Karl Rove has publicly stated on Fox News that he never had a conversation with President Bush about the subjects for which the House Judiciary Committee wants his testimony.  And he has asserted the same in letters sent to Dan Abrams at MSNBC.  In which case there is no communication for which the president may lawfully assert executive privilege, and if Karl Rove can talk about it on Fox News, he sure as hell can talk about it with the House Judiciary Committee.

The Bush administration is in open contempt for the rule of law.  If this was occurring in a court of law, Rove’s attorney Robert Luskin also would be facing possible sanctions from the court.

Congress has three options for a contempt charge against a witness who fails to comply with a congressional subpoena.  The preferred option is a statutory criminal contempt proceeding.  Congress refers an order of contempt to the Justice Department for prosecution.  Back in the days when we actually had a Justice Department, this procedure worked well.  Most witnesses quickly complied under threat of prosecution. But even here, the Bush administration is in open contempt for the rule of law.  Bush has ordered his injustice department not to prosecute any order of contempt referred to the Justice Department from Congress.

A rarely used option is for Congress to file a lawsuit and proceed using its own legal counsel against the contemptnor.  This is what Congress is doing at present with Josh Bolten and Harriet Miers.  But like all court proceedings, it takes time and it will allow the Bush administration to run out the clock until after leaving office on January 20, 2009.  Moreover, these cases have tended to be dismissed on the rare occasions this option has been exercised.

The third option, and the only credible option open to Congress, is to exercise its inherent contempt power under the Constitution.  Under the inherent contempt power, the individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned. The purpose of the imprisonment or other sanction may be either punitive or coercive. Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least in the case of the House, beyond the adjournment of a session of the Congress) until he agrees to comply.

The inherent contempt power has been recognized by the Supreme Court as inextricably related to Congress’s constitutionally-based power to investigate.  Between 1795 and 1934 the House and Senate utilized the inherent contempt power over 85 times, in most instances to obtain (successfully) testimony and/or documents. The inherent contempt power has not been exercised by either House in over 70 years. This appears to be because it has been considered too cumbersome and time consuming to hold contempt trials at the bar of the offended chamber.  Moreover, some have argued that the procedure is ineffective because punishment can not extend beyond Congress’s adjournment date.  See: http://www.fas.org/sgp/crs/misc/RL30240.pdf (Congressional Oversight Manual, May 1, 2007, at CRS-37).

Bush’s contempt for the Constitution and the rule of law, and the powers of the coequal branches of government, has been allowed to metastasize into a cancer on the Constitution.  It is long past time for Congress to stand up and to exercise its constitutional prerogatives and power by making an example of "Turd Blossom" Karl Rove.  Enforce the subpoena by sending the Sergeant-at-Arms to arrest Rove, and frog-march his contemptuous ass back to the House chamber.  Suspend congressional business for a contempt trial.  It does not have to be time consuming because in this case there is a refusal to appear.  The only question that need be answered is: "A committee of this House has issued a lawful subpoena for your testimony, and you have failed to appear as scheduled.  Will you now comply with the lawful subpoena of this House, or not?"  If Rove continues to refuse to testify, the House should vote to imprison him until he is ready to comply with the subpoena by testifying before the House Judiciary Committee, or until the term of the present Congress expires, whichever occurs first.  End of story.