Leashing the Unitary Executive

Okay, this is what I've been looking for.

With a showdown looming between Congress and the President over the failures of White House employees (and former employees) to obey subpoenas, the coverage has been all about whether the Justice Department, which is part of the Executive Branch, would honor the oversight powers of Congress and enforce the subpoenas. All the betting seems to be that it won't.

It is disturbing -- and not a little frightening -- to think the President can dismantle all the mechanisms of accountability so blatantly, shamelessly in front of everyone, and all the Congress can do is sit back and hope he'll begin to recognize some limit to his power.

On Saturday, Frank Askin, a law professor at Rutgers University, wrote in the Washington Post that Congress does, indeed, have the power to compel witnesses to testify and produce evidence, and can back up its subpoena power on its own, not through the agency of the Executive Branch.

Askin argues that "under historic and undisturbed law, Congress can enforce its own orders against recalcitrant witnesses without involving the executive branch and without leaving open the possibility of presidential pardon."

Based on "the inherent power of Congress to require testimony on matters within its legislative oversight jurisdiction," the House or Senate may instruct the sergeant-at-arms to imprison witnesses who fail to comply with a subpoena. He cites an 1895 case, United States v. Chapman, which determined that judicial enforcement of Congress's inherent power is optional. In the 1934 case Jurney v. McCracken, "the Supreme Court denied a writ of habeas corpus to a petitioner who had been taken into custody by the Senate sergeant-at-arms for allegedly destroying documents requested in a Senate subpoena."

Based on these and other legal precedent, Askin proposes Congress take matters into its own hands.

Thus, the congressional alternative. Instead of referring a contempt citation to the U.S. attorney, a house of Congress can order the sergeant-at-arms to take recalcitrant witnesses into custody and have them held until they agree to cooperate -- i.e., an order of civil contempt. Technically, the witness could be imprisoned somewhere in the bowels of the Capitol, but historically the sergeant-at-arms has turned defendants over to the custody of the warden of the D.C. jail.

That was what was done in the landmark 1876 case Kilbourn v. Thompson, when the Supreme Court ruled that Congress had overstepped its bounds by investigating the private activities of the defendant in a matter in which it had no jurisdiction.

That decision, however, left no doubt of Congress's power to punish for contempt those who defy lawful investigations.

Will Congress do it? Not without first building the case that there is no alternative because Bush has so completely sealed himself off from all accountability. But the Democrats have been moving pretty methodically in building its case against this administration -- not as fast as some would like, but they certainly haven't backed down, either.

If the Democrats can hold together, this solution holds a number of appealing elements. First, the action could be taken with a simple majority of the House or Senate -- less than the two-thirds majority an impeachment would require. And it would have a much greater impact on the way the Bush administration does its business. Rather than the symbolic gesture of impeachment (we'd never see the Senate convict), we would likely see the inner workings of the Bush White House finally cracked open for all to see.

What a sight that would be! And Conyers, with the backing of Pelosi, or Leahy, with Reid's support, could pull it off, I think.

(Note: Kagro X weighs the politics of this at Daily Kos.)