Why Inherent Contempt is the Way to Go

My sense from reading the CRS report on Congress’ Contempt Power is that the way to go is inherent contempt, for the following reasons:

1. Inherent contempt does not involve the Justice Department, the U.S. Attorney for D.C., or conservative judges in the U.S. District Court. Only the Supreme Court has any standing to review inherent contempt cases, and even their review is strictly limited.

2.  A standing committee or a new special committee could be authorized by the full House to hear the evidence in an inherent contempt case and only rely on the full House to put it to a vote. It would not take up the attention of the full House except for the final vote. With Congress in recess, hearings could be held during August, with no resulting impact on Congress’ other work priorities.

3.  Inherent contempt is the appropriate vehicle to use to coerce compliance, and that’s what Congress wants. Congress does not want to punish Harriet Meirs, Josh Bolten, Sara Taylor, Scott Jennings, Alberto Gonzales or Karl Rove, they want the truth, the whole truth and nothing but the truth. Congress wants evidence, in the form of testimony and internal Administration documents (emails).

4.  The criminal contempt statute and corresponding procedure are punitive in nature. It is used when the House or Senate wants to punish a recalcitrant witness and, by doing so, to deter others from similar contumacious conduct. The criminal sanction is not coercive because the witness generally will not be able to purge himself by testifying or supplying subpoenaed documents after he has been voted in contempt by the committee and the House or Senate. Consequently, once a witness has been voted in contempt, he lacks an incentive for cooperating with the committee.

5.  A finding of inherent contempt against an executive branch official does not appear to be subject to the President’s Pardon power.

Any questions?