A Constitutional Conundrum By Brian Beutler, The Media Consortium

[Demeter]

http://www.motherjones.com/news/update/2008/04/constitutional-conundrum.html

News: The House Judiciary Committee has taken its contempt of Congress fight to civil court, setting the stage for a legal battle that could redefine executive and congressional power. Overshadowed by a heated presidential-election battle and daily news of a sinking economy, a lawsuit that could change the shape of governmental power is making its way through U.S. District Court in Washington, D.C. The suit challenges the Bush administration's attempt to flout contempt of Congress charges against one current and one former White House aide. Its outcome could limit the scope of presidential power by providing Congress the means to investigate the inner workings of the executive branch without having to rely on the Justice Department, which is part of the executive branch.

Attorney General Michael Mukasey recently blocked the Justice Department from prosecuting criminal contempt of Congress citations approved in February by the House of Representatives against White House chief of staff Josh Bolten and former White House counsel Harriet Miers. The two Bush aides, acting on White House orders, had refused to provide the House Judiciary Committee with testimony and documents regarding the firings of nine U.S. attorneys by the Justice Department under the watch of then-Attorney General Alberto Gonzales. In Early April, the committee filed a blogosphere, have grown frustrated with Democrats on Capitol Hill for not resurrecting a practice known as "inherent contempt"—an arcane authority that allows Congress to prosecute contempt internally and that could, in theory, result in the arrest and incarceration of both Miers and Bolten by the House sergeant at arms.

"There is something of a sense that it is not productive for Congress to use its inherent contempt power," explained Mark Agrast, a constitutional law expert and senior fellow at the Center for American Progress. "It's just too unwieldy and too untried to be used in the modern era." In fact, in the motion currently before the district court, the Judiciary Committee dispensed with that option, contending that if it invoked its inherent power, the House would ultimately find itself arguing the contempt issue before the same court, but at a much later date.

The well-publicized, and apparently political, firings of nine federal prosecutors set off a firestorm of controversy in early 2007, prompting months-long investigations by both congressional bodies—investigations the White House has done its best to thwart. In June, when the House Judiciary Committee subpoenaed Bolten and Miers, the White House claimed a sweeping executive privilege and barred the two from complying. The House responded in kind, voting on February 14 to pursue criminal contempt charges against the aides—a move that White House spokesperson Dana Perino termed "a partisan, futile act", and one, she said, that the Justice Department would not enforce....The administration was true to its word: Jeffrey Taylor, U.S. attorney for the District of Columbia, acted on the orders of the very White House that appointed him and refused to take up the case.
"This is a surprising obstruction of the process by ," said Jonathan Turley, an authority on constitutional criminal procedure and a law professor at George Washington University. "Many constitutional experts, including myself, have concluded that the Congress clearly has the better position. The White House has clearly overextended the scope of executive privilege.".....


Brian Beutler is the Washington correspondent for the Media Consortium, a network of progressive media organizations, including Mother Jones.