On Congress’ Power to Enforce Its Subpoenas

Today’s 12-7 vote by the Senate Judiciary Committee to cite Karl Rove and Josh Bolton for contempt for their refusal to appear before the committee to testify about the 2006 firing of nine United States attorneys is the first step in a process that could restore meaningful Congressional oversight of President Bush’s abuse of executive power.  But many obstacles lie in Congress’s path to the truth, and they all come from President Bush himself. 

Throughout the history of the Republic, Congress has had broad authority to conduct investigations, and to use the subpoena power to obtain information from recalcitrant witnesses.  Until 1857, Congress had only one means at its disposal to enforce investigative subpoenas: its inherent power to punish individuals’ refusal to comply with subpoenas.  This power has been repeatedly upheld by the United States Supreme Court, beginning as early as 1821, where the Court observed that denying the House and Senate the power to punish contempt “leads to the total annihilation of the power of the House of Representatives to guard itself from contempts, and leaves it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it.”  Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 228 (1821).  Over a hundred years later, the Court in McGrain v. Daugherty, 273 U.S. 135 (1927), re-affirmed the inherent power of the Senate to punish contempt.  Daugherty was the brother of the former Attorney General of the United States, whom the Senate was investigating for “various charges of misfeasance and nonfeasance in the Department of Justice after he became its supervising head.”  Id. at 151.  The Court upheld the Senate’s power in ringing words:

“A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information -- which not infrequently is true -- recourse must be had to others who do possess it.  Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed.  All this was true before and when the Constitution was framed and adopted.  In that period the power of inquiry -- with enforcing process -- was regarded and employed as a necessary and appropriate attribute of the power to legislate -- indeed, was treated as inhering in it.  Thus there is ample warrant for thinking, as we do, that the constitutional provisions which commit the legislative function to the two houses are intended to include this attribute to the end that the function may be effectively exercised.”

Anderson and McGrain remain to this day the law of the land.  Though either house of Congress may choose to enforce a subpoena by means of the alternative statutory provision making contempt of Congress a misdemeanor, 2 U.S.C. § 192, there are strong reasons counseling against use of this mechanism with Bolton and Rove.  An opinion written by former Bush Solicitor General Ted Olsen when he worked in the Reagan Justice Department’s Office of Legal Counsel concluded that a United States Attorney “is not required to refer a congressional contempt citation to a grand jury or otherwise prosecute an Executive Branch official who carries out the President’s instruction to invoke the President’s claim of executive privilege before a committee of Congress.”  8 U.S. Op. Off. Legal Counsel 101.  Attorney General Michael B. Mukasey’s testimony before the Senate Judiciary Committee in October of this year echoed this view, making it extremely unlikely that a referral to the United States Attorney would lead to a prosecution.  Thus, the Bush Administration’s pre-emptive invocation of an absolute executive privilege means that asking the Department of Justice to prosecute Bolton and Rove will be in vain.  As the Congressional Research Service recently wrote in a scholarly examination of Congress’s Contempt Power, “inherent contempt has the distinction of not requiring the cooperation or assistance of either the executive or judicial branches.”  (July 24, 2007 Report, at CRS-14).

Second, we know that the statute was meant to add to the Senate’s options, not replace its inherent powers.  “The statute was enacted, not because the power of the Houses to punish for a past contempt was doubted, but because imprisonment limited to the duration of the session was not considered sufficiently drastic a punishment for contumacious witnesses.”  Jurney v. MacCracken, 294 U.S. 125, 151 (1935).  In other words, the statute provides the more drastic penalties, but is definitely not the sole arrow in the Congressional quiver.  But that the power to punish Rove and Bolton for contempt would expire with the Congressional session does not mean that the power would not be sufficient to enable the Senate to obtain the information it needs to conduct meaningful oversight over the President’s politicization of the Department of Justice.

Third, use of the inherent power to punish contempt would re-assert Congress’s power as an equal branch of government that cannot be stymied by a president bent on concealing his own wrongdoing and that of his subordinates.  Of course, the president’s assertion of executive privilege would have to be weighed and determined by the Senate in its proceeding (which could be delegated to a committee), and any punishment for refusal to testify if the privilege were rejected could be tested by Rove and Bolton by writ of habeas corpus in a federal court.