In Prosecutors Probe, a Detour Around Courts (inherent contempt)

http://www.washingtonpost.com/wp-dyn/content/article/2007/07/26/AR2007072602153.html

In Prosecutors Probe, a Detour Around Courts

Friday, July 27, 2007; Page A19

In approving contempt-of-Congress charges against White House Chief of Staff Joshua B. Bolten and former counsel Harriet E. Miers for their refusal to provide documents and testimony in the probe of the firing of U.S. attorneys, the House Judiciary Committee has chosen the popular route of trying to compel testimony through the criminal process.

But that road may prove difficult. It requires the assistance of the U.S. attorney for the District of Columbia, Jeffrey A. Taylor, to prosecute the cases -- and the Justice Department has declared that he cannot take the cases to a grand jury, because it has also ruled that President Bush's claim to executive privilege in the controversy is valid.

But there is a way around that. Congress could turn to an old and once frequently used procedure called "inherent contempt." In fact, the Senate Judiciary Committee's ranking Republican, Sen. Arlen Specter (Pa.), just this week talked up the idea, saying it "might be productive." Here's how it works:

Instead of relying on an outside prosecutor, the House or the Senate can adjudicate a case against the executive branch or a private citizen. The chamber's sergeant-at-arms can arrest witnesses and haul them in for questioning.

"Inherent contempt has the distinction of not requiring the cooperation or assistance of either the executive or judicial branches," according to a new report from the Congressional Research Service (CRS).

Such a proceeding could be used against Miers and Bolten, by the full House or possibly by a committee. Both would be allowed legal representation in a setting similar to impeachment hearings. Ultimately, the whole House could vote to mete out punishment, which could include imprisonment.

But Democrats have shown no appetite for the process, which has not been used since 1935. As the CRS report noted, "It became too cumbersome and time consuming to try contemptuous behavior on the floor."

-- Paul Kane