Friday, August 15, 2008

THE LAW AND PRACTICALITIES OF LOCKING UP KARL ROVE FOR CONTEMPT

David Swanson, Alternet - Congresswoman Zoe Lofgren recently wrote the following dismissive letter to her constituents:

"Thank you for contacting me about Karl Rove's failure to appear before the Judiciary Committee. I appreciate that you took the time to share your thoughts with me. The Judiciary Committee is taking Karl Rove's failure to testify very seriously, and we are currently considering all options -- including contempt proceedings -- to compel him to answer important questions regarding the firing of several U.S. attorneys. Some have suggested that Congress implement 'inherent contempt' as if that is a viable option. The jail cell in the basement of the Capitol doesn't exist and the Sergeant at Arms is an over 60 year old executive. Congress is not a police force, and we will likely need to continue to utilize the courts and system of justice to pursue these matters.". . .

The age of the Sergeant at Arms is not a decisive factor in the question of whether the Congress will engage in what for most of its history was understood as "inherent self-protection". There is a Sergeant at Arms for the House and one for the Senate, there are deputies, and there is an entire Capitol police force. In one of the earliest uses of "inherent contempt" a prisoner of the United States Congress argued that a warrant used to arrest him was invalid because it had been addressed to the Sergeant at Arms and had been enforced by the Deputy Sergeant at Arms. The U.S. Supreme Court ruled that the warrant was still valid; and that practice was subsequently followed for many decades. The Sergeant at Arms is not on his own, but is permitted and required to employ subordinates as needed. In 1877 a Deputy Sergeant at Arms was instructed to accompany a congressional prisoner to New Orleans to procure telegrams he had hitherto refused to produce when subpoenaed, and to accompany another prisoner to New York to be seen by his physicians. In addition, a Sergeant at Arms incapable of performing his duties can be reassigned. . .

The House or the Senate or, in fact, any committee thereof, has the power, according to tradition and to rulings of the U.S. Supreme Court, to instruct the Sergeant at Arms of the House or Senate to imprison anyone being charged with contempt of Congress or being thereby punished for contempt of Congress. The difficulty of finding a place to imprison them has been easily solved in a variety of ways and could be again quite quickly. . .

During the latter part of the 19th Century and the early part of the 20th, the common jail of the District of Columbia was routinely used by the Sergeants at Arms of the House and Senate. While the jail did not belong to Congress, an arrangement was made to use it, housing the occasional "contumacious witness" in the same building with the general DC prison population. The District Jail is described in this 1897 New York Times article. [A] 1934 article from Time Magazine discusses the Senate's use of the District Jail to punish contempt in both 1860 and 1934.

In 1872 a Congressional committee discussed the problem of the DC jail not being controlled by Congress, but apparently concluded that the Sergeant at Arms could keep control of a prisoner in that jail. In other instances, including that same case, a prisoner of Congress was summoned to appear by a court, and Congress instructed the Sergeant at Arms to transport the prisoner to the court to explain the situation but not to release the prisoner from his control.

Congress has not always made use of outside jails. In 1868 this measure was approved: "Resolved, That Rooms A and B, opposite the room of the solicitor of the Court of Claims, in the Capitol, be, and are hereby, assigned as guardroom and office of the Capitol police and are for that purpose placed under charge of the Sergeant-at-arms of the House with power to fit the same up for purpose specified…. Resolved, That said Wooley, for his repeated contempt of the authority of the House, be kept until otherwise ordered by the House in close confinement in the guardroom of the Capitol police by the Sergeant-at-Arms until said Wooley shall fully answer the questions above recited, and all questions put to him by said committee in relation to the subject of the investigations with which the committee is charged, and that meanwhile no person shall communicate with said Wooley, in writing or verbally, except upon the order of the Speaker."

The U.S. Capitol and the House and Senate office buildings are full of rooms that could easily be transformed into guard rooms, and are in fact almost certainly full of guard rooms already. . . . DC is chock full of jails, several of them quite close to the Capitol. In fact, the Capitol Police make extensive and frequent use of them under an ongoing understanding with the custodians of the jails. The Capitol Police also hold people, at least temporarily, in a building very near the Senate office buildings.

Reviewing the early history of Congressional contempt reveals a mixture of offenses, including refusing to answer questions (on various topics), refusing to produce documents, failing to appear, etc., but also libeling Congress, assaulting a Congress member, beating a congress member with a cane, even Congress members themselves beating up a senator, and the case of a drunken citizen applauding inappropriately. While use of police force has disappeared as a response to recalcitrant witnesses, it is still routinely used for people who applaud inappropriately. When about 50 of us held a sit-in in Chairman John Conyers' office last summer to urge impeachment, he had us taken to a nearby jail by the Capitol Police. The age of the Sergeant at Arms didn't seem to get in the way. When Cindy Sheehan was arrested for wearing an unacceptable T-shirt to a "State of the Union" speech, the Capitol Police sent us and the media on a wild goose chase to several different jails that they use before arriving at the one from which they actually released her. . .

Common Cause recently advocated inherent contempt with this statement: "Under the inherent contempt power, the House Sergeant-at-Arms has the authority to take Karl Rove into custody and bring him to the House where his contempt case can be tried, presumably, by a standing or select committee. . . The Supreme Court has recognized the power of the House to enforce its own subpoenas through the inherent contempt provision, stating that without it, Congress 'would be exposed to every indignity and interruption that rudeness, caprice or even conspiracy may mediate against it.' Before Congress asked the Justice Department to try contempt cases on its behalf, the inherent contempt power was used more than 85 times between 1795 and 1934, mostly to compel testimony and documents."

Even the Washington Post agrees: "Both chambers also have an 'inherent contempt' power, allowing either body to hold its own trials and even jail those found in defiance of Congress. Although widely used during the 19th century, the power has not been invoked since 1934 and Democratic lawmakers have not displayed an appetite for reviving the practice.". . .

While the House must release all prisoners at the end of each two-year Congress (and has traditionally done so), the Senate need not and can hold them into the next Congress. And, remember that while the House Judiciary Committee just recently voted to hold Rove in contempt, the Senate Judiciary Committee voted to do that last December. It simply hasn't yet done it, choosing to defer to the full Senate, which chooses to shut its eyes, cover its ears, and hum.

But deferring to the full House or Senate is part of the tradition of statutory contempt, not inherent contempt. It has been solidly established that inherent contempt resides in a full house or a committee. So, what is statutory contempt? Well, in 1857 Congress passed a law criminalizing contempt of Congress (and the maximum jail time is 12 months). It did so in large part precisely because of the need to free prisoners at the end of each Congress, but also because of the time-consuming nature of putting people on trial for contempt, something that was commonly done by committee, with the accused often permitted legal counsel and witnesses. . . Congress never lost that power, and in fact continued to exercise it up through 1934 since when it has simply chosen not to. Inherent contempt is a power that resides in what the U.S. Constitution created to be the most powerful branch of the government. It cannot be overruled in court, and it cannot be vetoed or pardoned. It can also not be endlessly delayed by court appeals, which is where the House's contempt citations for Miers and Bolten now are. . .

2 Comments:

At August 15, 2008 9:14 AM, Anonymous robbie said...

There's ALWAYS an excuse for why Democrats can't do something, whatever that may be.

 
At August 16, 2008 5:19 PM, Anonymous Why Congress is a bunch of cowards (look out Pelosi, here comes a shit-eating dog). said...

Sanborn: Sometimes I wonder if the Congress is being bribed or blackmailed. That could explain why they refuse to stop illegal wars and torture.

Roberts: The purpose of illegal spying is to get blackmail information on members of Congress, and it started well before 9/11.

'The Neocons Are Dying to Nuke Iran' -- An Interview with Dr. Paul Craig Roberts


By Kathy Sanborn
http://www.911truth.org/article.php?story=2008081414363730

 

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