SHOWDOWN ON PENNSYLVANIA AVENUE….When Congress issues a contempt citation, it gets referred to the local U.S. Attorney for action. Today, though, in what the Washington Post called a “bold new assertion of executive authority,” the Bush administration has announced a brand new exception to this rule: If the president has asserted executive privilege, then no U.S. Attorney will be allowed to pursue contempt citations against administration officials for refusing to testify before Congress.
So what happens now? Here are two possibilities. The first comes from Orin Kerr:
My amateurish guess is that this just adds another layer of litigation to the coming legal battles: it means that after the U.S. Attorney refuses to prosecute, Congress has to file a civil action seeking an order compelling the U.S. Attorney to refer the case to the grand jury. Courts then have to deal with that issue first, which could take a while as it works its way through the appellate process.
Where does that leave Congress? Barred from taking its case to court through the Justice Department, it may turn to its “inherent contempt” power to hold its own trials and even order officials to jail. The procedure was widely used in the 1800s, but hasn’t been since 1934.
Marty Lederman, who predicted a couple of weeks ago that this would happen, has more details on pursuing these options here. Mark Kleiman, by contrast, thinks Congress should just start defunding the “non-essential” parts of the White House: the press office, the political office, and the White House Counsel’s office. Says Mark: “Clinton won his [1995 budget showdown with Newt Gingrich] because Gingrich tried to shut down the government. Punishing and crippling Bush doesn’t require shutting down any activity the public cares about.”