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A judge gropes and harasses his female employees, lies about it to investigators, is tried and convicted, and is on his way to prison. The U.S. House of Representatives springs into action, activating something none of us even knew existed during the entire eight-year hell of Cheney-Bush: the House Judiciary Committee Task Force on Judicial Impeachment. And what did Judge Groper do on Wednesday? He chose not to show up, as requested by Congress, for his own impeachment hearing.
Over on the Senate side of Capitol Hill, the chairman of the Senate Judiciary Committee recently asked a federal judge not yet convicted of authoring memos to facilitate torture if he wouldn't mind coming in to talk, and Jay Bybee replied "Um, let me think about it . . . no. You go ahead without me," or something roughly to that effect.
Karl Rove is expected to drop in to chat with the House Judiciary Committee behind closed doors at the end of this week or the beginning of next. But he will only be partially complying with a subpoena, the Obama White House having negotiated on behalf of this private citizen for elaborate terms of partial compliance. And, no doubt, congress members feel like this is a step forward.
After all, for the past two years dozens of people simply laughed off requests and subpoenas and even contempt citations from Congress. Condoleezza Rice literally said that she was "not inclined" to show up, and so she didn't. Showing up is now optional. Some token refusals to comply in the face of contempt citations are being reviewed by courts, but even a victory there would merely teach the next recalcitrant witness to stall until the next congressional election by allowing congress to take him or her to court.
Congress can no longer compel anyone to show up for two reasons. First, it doesn't impeach any more, so elected officials have nothing to fear from ignoring Congress. Of course, Congress may impeach the groping judge, but he's already been convicted in court. This is a case of Congress following another branch of government, not challenging one. Second, Congress does not enforce its own subpoenas through the Capitol Police but relies on the other two branches of government to enforce them, which tends not to work or to work so slowly as to be useless. Knowing this, congress members seem most inclined now not to issue subpoenas at all.
There is not a single member of the House or Senate even remotely considering using inherent contempt, and there are many who don't even know what it is. “Contempt” refers to the process of compelling a witness to testify who has refused to do so and punishing the refusal by, for example, locking someone in jail until they agree to testify. “Inherent” simply refers to the idea that Congress can enforce its own contempt citations, as it did up until the early twentieth century. Congress chose to begin asking the Justice Department (part of the executive branch) or the courts (part of the judicial branch) to enforce its contempt citations. This procedure seems to work just as well as the other except in cases in which the Justice Department has an interest in allowing a witness to not comply. In at least those cases, if not all, Congress ought logically to enforce its own contempt citations, a power that it never lost and which has never been challenged, merely forgotten. Believe it or not, Congress (and any committee thereof) has always had -- and used to actually use -- the power to lock people in jail until they agreed to answer questions. Congress did this over 85 times between 1795 and 1934. If a judge had refused a request to appear for his own impeachment between 1795 and 1934 he would likely have been picked up by the capitol's police force, hauled to Washington, and stuck in jail until he agreed to apologize.
Reviving a procedure not used since 1934 might sound radical if we do not understand why it fell out of practice. Congress members actually believed that by establishing a legal statute of contempt and asking the Justice Department to enforce it, they would strengthen the process and eliminate the need for inherent contempt within Congress. But Congress actually weakened itself. This is similar to the case of Congress passing the War Powers Act to strengthen its power to make war, whereas that bill actually weakened the congressional war powers found in the Constitution. There are other examples. Congress has worked very hard over the centuries to strip itself of power, while presidents have done the opposite.
If Congress wanted to restore itself as a branch of our government, it would lock up the groper judge and subpoena the torture judge, with a commitment to lock him up too if he did not comply. The House would impeach and the Senate convict both of those judges.
Sadly, when it comes to investigating torture and other war crimes, Congress is choosing (rather bizarrely, given the overwhelming evidence already available) to wait for the Justice Department's Office of Professional Responsibility to release a report. The report is complete, and the attorney general has signed off on it, and yet it has not been published. One guess as to the reason for the delay is, in fact, the promises of Congress not to do anything as long as the report is still unreleased.
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