Another Reason To FAVOR INHERENT CONTEMPT In Face Of BUSH's Outlandish Assertions

[kpete]

Why Inherent Contempt III
By Big Tent Democrat, Section Law Related
Posted on Sun Jul 22, 2007 at 05:14:55 PM EST
Tags: (all tags)
Posts 1 and 2 here.

Eugene Volokh provides more justification for the use of inherent contempt by the Congress to enforce its subpoenas:
http://volokh.com/posts/1185084836.shtml

Firmly insisting on denying Congress any power to initiate prosecutions of people who resist its commands — commands that Congress wants to argue are lawful — would indeed make it much harder for Congress to make its commands stick. . . . Congress can itself prosecute the contumacious official(s) to coerce them to comply — a power that the Supreme Court has affirmed. . . . As Justice Scalia explained in Young v. U.S. ex rel. Vuitton et Fils, S.A., 481 U.S. at 820, this legislative prosecution authority is a constitutional anomaly of sorts — a "limited power of self-defense" for Congress, permissible because "any other course 'leads to the total annihilation of the power of the House of Representatives to guard itself from contempts . . ."

. . . Here Congress would not only order a prosecution, but could actually try and punish the person, though subject to certain limits. This is a deeper departure from the separation of powers than simply ordering the Justice Department to prosecute — in front of a normal judge and jury — would be.

Nonetheless, it is a departure that is sanctioned by longstanding legal doctrines, and (relatedly) by our constitutional history. . . . It seems like the legally authorized approach — the use of a traditional and narrow departure from standard constitutional norms, and not a new departure.

It seems difficult to see how unitary executive proponents can argue with the power of Congress to commence inherent contempt proceedings while at the same time denying the rights of the courts to review claims of executive privilege. Indeed, Volokh obviously can not. Yet another reason to favor inherent contempt proceedings in the face of the Bush Administration's outlandish assertions.

http://www.talkleft.com/story/2007/7/22/181455/603

[bigtree]

1. like impeachment

it's not so consequential to favor one over the other - although there are those who say the statutory contempt route is 'a waste of time' because it will be opposed.

In the inherent contempt action, there would be the obvious benefit of Congress taking responsibility for their own affairs without having to ask first.

In a statutory action, there is use and validity in challenging the administration in court where they've merely asserted some privilege and expect their opposition to fold. Most of the prosecutions that have been successful have, in the end, taken the subject down because of some obstruction. That's no accident. At every point of accountability, there will either be compliance and discovery or obstruction to protect against discovery. Every point that Congress demands accountability, there will be an opportunity to catch the administration up in their obstruction, or either, get the information we need to proceed with the prosecution.

No avenues to accountability should be left unexplored; especially in the cases where the administration asserts some unproven claim of Executive Privilege in a subpoena/contempt action where they are the subjects. Both have validity, and I can't see any reason why either should be excluded from consideration.

[creeksneakers2]

2. Very well thought through n/t