Sunday, July 15, 2007

John Dean on Harriet Miers's Contempt of Congress

FindLaw's Writ By John W. Dean
By not responding to the subpoena, the President and Ms. Miers all but invited the House Judiciary Committee and, in turn, the House of Representatives to vote to deem her in contempt of Congress. It was a defiant, in-your-face insult to Congress. No president would do this unless he was quite confident of the outcome. Clearly, Bush's White House and Justice Department lawyers believe that the solidly conservative federal judiciary will grant them a favorable ruling, and that, in the process, they will greatly weaken congressional oversight powers, to the advantage of the White House.

In short, the Bush White House is not bluffing with this act of defiance. Rather, the White House truly wants to test, and attempt to expand, presidential power. Bush's White House is ready, willing, and able to play hardball. Indeed, the White House may actually be trying to bait the House Judiciary Committee and the House of Representatives into voting to deem Ms. Miers in contempt of congress. ...

Long ago, Congress should have oiled up its most powerful tool to require Executive cooperation. No one who follows these matters is surprised that Bush is again pushing the envelope of presidential powers. But it continues to mystify me why Congress does not get its act together, and remind the White House that they are constitutional co-equals. ...

Finally, if Miers is found in contempt, the House itself can take action against her at the bar of the House. (The Senate can similarly hold such proceedings.) Congress has the power to prosecute contumacious witnesses to require them to comply, and the Supreme Court has repeatedly reaffirmed this power. For example, in 1987, in Young v. U.S., Justice Antonin Scalia recognized "the narrow principle of necessity" or "self-defense" of the Congress in protecting its institutional prerogatives. Scalia said "the Legislative, Executive, and Judicial Branches must each possess those powers necessary to protect the functioning of its own processes, although those implicit powers may take a form that appears to be nonlegislative, nonexecutive, or nonjudicial, respectively."

When all is said and done the only way Congress can protect its prerogatives is to undertake its own contempt proceedings. The parliamentary precedents of the House provide such procedures, by which Congress can effectively protect itself. There is no shortage of past instances where the Congress has held such trials. Readers may want to consult, for example, Hinds' Precedents and Canon's Precedents. Unfortunately, however, this machinery has become a bit rusty, for these procedures have not been used since 1934.

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