NPR logo Primer: Congress' Contempt of Charges Showdown


Primer: Congress' Contempt of Charges Showdown

The House Judiciary Committee has voted to issue contempt of Congress citations against White House Chief of Staff Josh Bolten and President Bush's former legal counselor, Harriet Miers, for ignoring their subpoenas. In doing so, House lawmakers have entered choppy legal waters. In the past, Congress has issued hundreds of "contempt citations," but rarely to members of the executive branch. Here are some answers to the thorny legal questions involved, and a look at how the tug-of-war between the White House and Congress might play out.

The Judiciary Committee has issued citations. What happens next?

The full House votes on whether to formally issue contempt of Congress citations. That probably won't happen until after Congress's August recess. If the motion passes, the case is forwarded to the federal attorney for the District of Columbia, Jeffrey Taylor. He is a Bush appointee who once worked at the Department of Justice headquarters.

Will the case actually get prosecuted?

Not likely. President Bush has claimed that Miers and Bolten are protected under executive privilege and, therefore, are not compelled to testify. One possibility, legal scholars say, is that Taylor could recuse himself from the case and appoint a special prosecutor to handle it.

Is contempt of Congress a criminal offense?

Yes. It's a federal misdemeanor, punishable by up to a $1,000 fine and a one-year prison sentence.

Has anyone ever been jailed for being in contempt of Congress?

Yes, dozens of people have been jailed for contempt of Congress. One of the more notorious cases occurred in 1969, when Robert Jones, a "Grand Dragon" of the Ku Klux Klan, served one year in jail for failing to provide records to a congressional committee.

It is much less common, though, for Congress to hold members of the executive branch in contempt. In fact, it's only happened once in the post-Watergate era. In 1982, Environmental Protection Agency Administrator Anne Gorsuch-Burford, under orders from President Reagan, refused to turn over documents involving the Superfund scandal. The full House voted to hold her in contempt. The Justice Department declined to prosecute, though. Eventually, after a long legal battle, the two sides reached a compromise, and the White House turned over the requested documents.

Are there any other legal options open to Congress?

Technically, yes. Congress has its own "inherent power" of contempt. It entails Congress stopping all other work and holding its own trial. Those found guilty are imprisoned in the basement of the Capitol. This provision, though, hasn't been used since 1935, and it's extremely unlikely that the current Congress would resort to such drastic measures. "It's a horse-and-buggy law," says Charles Tiefer, a professor of law at the University of Baltimore and former congressional staffer.

Why are congressional Democrats going ahead with these contempt citations if they know the charges will be blocked by the White House?

The Democrats calculate that they have nothing to lose politically. This way, analysts say, Democrats can claim that they've done everything in their legal power to compel Miers and Bolten to testify. That puts the ball back in the White House's court.

Are the courts likely to get involved?

No. In the past, they've been reluctant to rule on issues of executive privilege. They tend to view such cases as political questions — and let Congress and the White House slug it out.

So how is this constitutional tussle likely to be resolved?

These constitutional tug-of-wars are usually resolved through a negotiated settlement. This one is likely to be no different.

Already, Congress has dropped one of its demands: that Miers and Bolten testify publicly. But, for now, lawmakers are sticking to another requirement: that any testimony (or "interviews," as the White House prefers) be recorded and transcribed. Congress is also insisting that the White House turn over additional documents.