Court Fight Still Unfolding over Attorney Firings
RENEE MONTAGNE, host:
This is MORNING EDITION from NPR News. Good morning. I'm Renee Montagne.
A constitutional standoff between President Bush and Congress is headed to court. In an unprecedented move, the House Judiciary Committee this week filed a federal lawsuit to force two White House aides to provide information about the firings of nine U.S. attorneys.
Congress has a long history of trying to force witnesses to appear when called. At one time it jailed people in the Capitol for contempt of Congress.
NPR's Debbie Elliott begins her report with this look back.
DEBBIE ELLIOTT: The concept of contempt of Congress predates the country.
Mr. FRED BEUTTLER (Deputy Historian, House of Representatives): Some of it goes back to English parliamentary law, as well as American colonial assemblies.
ELLIOTT: Fred Beuttler is the deputy historian for the House of Representatives. He says contempt can apply to anything that Congress considers an obstruction to its legislative powers.
Mr. BEUTTLER: The first contempt of Congress case is in 1795, a few years after the ratification of the Constitution, and what happened is three members of the House received what they thought were bribes, and so Congress reported a resolution bringing these two individuals before the bar of the House.
ELLIOTT: Which means Congress held a trial and found one of the men in contempt for offering acreage as a kickback for a land grant. He was retained for 10 days. Beuttler says it's not clear where he was held. At that time Congress was meeting in Philadelphia.
By the middle of the next century, Congress met in the U.S. Capitol and set aside a place to deal with contemptuous characters.
Mr. BEUTTLER: We're walking to the old part of the building.
(Soundbite of footsteps)
ELLIOTT: Beuttler leads me up a stairwell to the floor just below the Capitol rotunda. We take a side corridor to look at Room H160, currently assigned to the House's attending physician. There's a shuttered outer door with iron scrollwork behind it. The rooms beyond were once used as an in-house jail.
Mr. BEUTTLER: This is where in May, 1868 the House passed a resolution setting what they called Rooms A and B as a place in the Capitol for a guard room.
ELLIOTT: Beuttler says there's not much information on just how many people landed in the House jail or when it went out of business. Over the years, Congress found people in contempt for everything from bribery to libel to withholding information. The Supreme Court affirmed Congress's power in an 1821 bribery case.
Mr. BEUTTLER: The court asserted that if the House did not possess the power of contempt, it would, quote, "be exposed to every indignity and interruption that rudeness, caprice or even conspiracy may mediate against it." Which I love; that's a great quote, because it does protect the prerogative of the House from being disrupted or being unable to carry on its legislative or oversight function.
ELLIOTT: Congress held contempt trials until 1935. They were known as inherent contempt cases, but Beuttler says it took too much time and energy, so lawmakers set up another vehicle, criminal contempt, to refer these cases to the U.S. attorney for prosecution.
That gets us to today's case. The House voted last month to hold White House Chief of Staff Joshua Bolten and former counsel Harriet Miers in contempt of Congress. It was for their failure to comply with subpoenas in the investigation of whether U.S. attorneys were fired for political reasons.
But the attorney general refused to refer the contempt citation to the D.C. U.S. attorney. In response, the Judiciary Committee filed a civil lawsuit to force Miers and Bolten to cooperate.
Mr. MICKEY EDWARDS (Former Republican Representative) What's at stake here is the fundamental separation of powers that's at the heart of the Constitution.
ELLIOTT: Mickey Edwards is a former Republican congressman who supports House Democrats in their lawsuit.
Mr. EDWARDS: It's not a matter of whether we think the Bush administration did anything right or wrong. It's a matter of whether the people's branch of government, the Congress, you know, has the right under the Constitution to investigate.
ELLIOTT: The Bush administration has invoked executive privilege, the doctrine that the president can keep some matters confidential. George Mason University professor Mike Rozell has written a book on executive privilege. Like contempt of Congress, he says, executive privilege is an implied right.
Mr. MIKE ROZELL (George Mason University): There is nothing in the constitution about executive privilege per se. Those words were not even a part of our common language until the 1950s.
ELLIOTT: Even so, Rozell says, all presidents dating back to George Washington have withheld information or testimony from Congress, the courts, and special prosecutors. Rozell says, historically, executive privilege has only protected certain presidential conversations.
Mr. ROZELL: So I think where the administration is making a really, really broad stretch here is in their argument that certain individuals just can't go to the Hill to testify at all because at some point they might be asked some question that is germane to presidential secrecy.
ELLIOTT: The House lawsuit argues that the president can't claim blanket immunity for his aides. University of Richmond law professor Carl Tobias says President Nixon tried to do that during Watergate, but the Supreme Court set a high bar.
Professor CARL TOBIAS (University of Richmond): In U.S. v. Nixon, the Supreme Court did say that a generalized privilege, like a blanket privilege that's asserted by the president here, is too much, unless for example it encompasses national security or something of great public importance.
ELLIOTT: This time, talks between the Judiciary Committee and the White House are at an impasse. Press Secretary Dana Perino called the lawsuit partisan theater. Never before has the House sued to enforce a contempt citation. Tobias says the stakes are high.
Prof. TOBIAS: Well, I think it is a true Constitutional showdown. I mean it's hard to imagine a much clearer clash between the two branches.
ELLIOTT: And the risk is if the case proceeds to trial, one side stands to lose.
Debbie Elliott, NPR News, the Capitol.