Backgrounder on Contempt - UPHOLDING THE CONSTITUTION: Bush Administration Not Above the Law

Backgrounder on Contempt - UPHOLDING THE CONSTITUTION: Bush Administration Not Above the Law

Congressman John Conyers

“Although the legislative power of contempt is not expressly provided for in the Constitution and exists as an implied power, as early as 1821 the Supreme Court recognized that without this power the legislative branch would be ‘exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may mediate against it.’”

– The Politics of Executive Privilege, 2004.

“…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 that which 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.”

– McGrain v. Daugherty, 273 U.S. 135 (1927)

AMERICAN PEOPLE SUPPORT HOLDING WHITE HOUSE ACCOUNTABLE

FROM THE EXPERTS

Harlan J. Protass, Professor at Benjamin N. Cardozo School of Law
“The subpoena is the great democratizer of the American judicial system. Everyone must respond in some way to a lawfully issued subpoena. Everyone, that is, apparently, except for those whom the White House unilaterally declares to be exempt from that legal duty… When it comes to subpoenas, former White House officials should be treated like everyone else… If it would be appropriate to hold in contempt a nameless recipient of a congressional subpoena who refused to appear for testimony, then such a finding is also appropriate for Miers… No one - including Harriet Miers - is above the law and can simply disregard a subpoena. And no administration should encourage or direct that type of conduct.” [Newsday, July 19, 2007]

Peter Shane, Professor at Ohio State University
“There is no absolute right to presidential privilege... What’s at stake here is a qualified privilege… Given the president’s offer to let (aides) speak to Congress about these matters, essentially he has acknowledged that the information at stake here is not of sufficient urgency that the disclosure of it compromises his ability to be president… In that situation, if we get down a legal question of executive privilege, it’s not that strong.’’ [Chicago Tribune, July 25, 2007]

Stephen Gillers, Professor at New York University
“The privilege does not entitle you to refuse to appear. The privilege entitles you to refuse to answer questions when you appear if those questions call for privileged information…No one can claim the privilege entitles you to ignore the body that subpoenas you.” [Los Angeles Times, July 12, 2007]

Erwin Chemerinsky, Professor at Duke University
“As with Watergate, there is the need for Congress to investigate whether there were serious abuses of power. Under the Constitution, in these circumstances, executive privilege cannot be used to frustrate Congress in fulfilling its constitutional duty. If the White House won't compromise, there is no choice but for the House of Representatives to vote for contempt of Congress charges.” [Baltimore Sun, November 11, 2007]

The New York Times Editorial
“The Work Remaining,” December 26, 2007
“Congress must hear from all of the major participants. The House Judiciary Committee has voted to hold Joshua Bolten, the White House chief of staff, and Ms. Miers in contempt for ignoring Congressional subpoenas. The Senate Judiciary Committee has voted to do the same for Mr. Bolten and Mr. Rove. The full House and Senate should affirm those votes and refer the witnesses for prosecution if they still will not cooperate… The integrity of the Justice Department is precious. The fair application of the law is the cornerstone of American justice and American democracy. A halfway resolution of this scandal is not enough. It needs to be investigated vigorously and completely.”

Albuquerque Tribune (New Mexico) Editorial
“White House can’t ignore the Constitution,” July 30, 2007
“The United States is in constitutional crisis. It's time for Congress to grow a backbone and start acting like the people's representative and constitutional check on unbridled presidential power… Whether there is broad bipartisan support, neither chamber now should flinch from pursuing contempt or perjury charges, by simple majority vote through whatever process looks to be the most promising in bringing to justice those who would obstruct it… It is instructive that the Founding Fathers saw Congress as an equal to the executive and judicial branches. They designed the bicameral legislature to be far closer and responsive to the people and saw it as a vital balance to the sweeping, but very limited, powers vested in the president. If Congress does not stand on its own feet now, it will forever be little more than a presidential rubber stamp. Senators and representatives must have faith that when they stand, Americans will stand with them.”

Pittsburgh Post-Gazette (Pennsylvania) Editorial
“The People’s Rights,” July 28, 2007
“The attempts of the Congress to obtain information from the White House are worthy of respect and, if subpoenas or stronger measures are necessary to achieve testimony or documents, they should be used and enforced. A Congress led after the 2006 elections by a Democratic majority has worked hard since then to try to restore the normal constitutional relationship between the legislative and executive branches of the federal government… In any case, the Congress and the American people have a right to know what federal officials have done and are doing in their name. Telling them it is none of their business is unacceptable. The Congress will need to pursue this problem to the end.”

The Baltimore Sun Editorial
"A Terrible Precedent,” July 21, 2007
“Congress must protect its prerogatives as an equal branch of government… This stonewalling is symptomatic of an administration that has much to hide. After six years in which the Republican-run Congress mostly ignored its oversight role, Democrats are now poking into dark corners and exposing shameful secrets… Too much power is dangerous to a democracy, and this administration has pushed the envelope on about every front imaginable - from secret spying on its own citizens to launching a war on false pretexts. Congress cannot allow Mr. Bush's regal pretensions to become the model for a future chief executive.”

The Philadelphia Inquirer Editorial
“White House Immunity; None of your business,” July 14, 2007
“In sum, this White House is making breathtaking claims about its immunity from oversight… Only Congress and the courts have the authority to restrain this administration's grasping after an imperial presidency. It's about finding the right balance between demanding accountability in the public interest, and tying a president's hands in conducting the nation's affairs… What shouldn't be forgotten as Congress, the White House and the courts proceed along a potential collision course is why the Constitution's checks and balances are important. That is, oversight and accountability help a president to do his job.”