John Dean: Congress can and should start its OWN contempt proceedings

http://writ.news.findlaw.com/dean/20070713.html

SNIP

Let's suppose that the House votes Miers in contempt, and the matter is sent to the U.S. Attorney. One can expect that no prosecution will be brought. During the Reagan years, the Justice Department ruled that even though the referral statute makes it the "duty" of the U.S. Attorney to take the matter to the grand jury, Congress cannot enforce that duty on the Executive Branch if the Executive Branch refuses to honor it. As noted, it would appear that under the most recent Justice memo on the subject, the White House will not permit the U.S. Attorney to prosecute the matter, and Congress has no power to overrule that by forcing the U.S. Attorney to go forward.

SNIP

Finally, if Miers is found in contempt, the House itself can take action against her at the bar of the House. (The Senate can similarly hold such proceedings.) Congress has the power to prosecute contumacious witnesses to require them to comply, and the Supreme Court has repeatedly reaffirmed this power. For example, in 1987, in Young v. U.S., Justice Antonin Scalia recognized "the narrow principle of necessity" or "self-defense" of the Congress in protecting its institutional prerogatives. Scalia said "the Legislative, Executive, and Judicial Branches must each possess those powers necessary to protect the functioning of its own processes, although those implicit powers may take a form that appears to be nonlegislative, nonexecutive, or nonjudicial, respectively."

When all is said and done the only way Congress can protect its prerogatives is to undertake its own contempt proceedings. The parliamentary precedents of the House provide such procedures, by which Congress can effectively protect itself. There is no shortage of past instances where the Congress has held such trials. Readers may want to consult, for example, Hinds' Precedents and Canon's Precedents. Unfortunately, however, this machinery has become a bit rusty, for these procedures have not been used since 1934.

Given the clear attitude of conservative presidents, who are doing all within their power to make Congress irrelevant, Congress should turn to these underemployed precedents and put them back to work. The House and Senate Judiciary Committees should take the lead in reviving these procedures, and the Democrats' leadership should announce that they are embracing them.

If they do not, Fred Fielding has it right: Officials are absolutely immune from compelled Congressional testimony. Bush can simply tell Congress to stop sending subpoenas to his appointees. However, if Congress does engage in a little self-help at this crucial juncture, it can be sure that not only Harriet Miers, but also George Bush, will be forced to pay attention to congressional subpoenas - for the bottom line is that Congress will not need the cooperation of the other branches to enable it to conduct proper oversight.

It certainly isn't going to happen until after the House tries to go the section 194 (contempt citation referred to US Attorney for prosecution) route. If the US Atty fails to act, then what probably will happen will be dual tracked -- steps may be started towards the invocation of the inherenent contempt authority and a petition for mandamus to the court asking them to direct the US Atty to carry out what the House will argue is the US Atty's non-discretionary obligation to prosecute under section 194. If it gets to that point, some accomodation or compromise probably will be reached.

"Congress has the power to prosecute contumacious witnesses to require them to comply"

Or would it be civil?

This link or the printed article itself should go ASAP to Conyers, Sanchez, Nadler, and Watt (who did such a great job yesterday). I'm from Iowa, and most congresspeople's Web pages will only accept messages from Constituents. This is terrific information and may be our best hope for putting teeth in subpeona power.

Thanks for anyone who can send on this info to their Reps.