Congress's Power To Compel

[Gman]

It seems that the House Judiciary Committee is considering seeking help from the Justice Department to enforce contempt citations against Bush administration officials such as Joshua Bolten who refuse to respond to congressional inquiries into alleged White House wrongdoing. That would be a mistake.

Such a strategy leaves Congress beholden to hostile executive branch officials to enforce its prerogatives on exactly the type of charges that the administration said this week it would not allow officials to pursue. This strategy also would allow the president to pardon his underlings should they ever be indicted and convicted.
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The limitation on the president's pardon power was most comprehensively discussed in a 1925 opinion by Chief Justice (and former president) William Howard Taft in the case of Ex Parte Grossman.

Grossman had been accused during Prohibition of the illegal sale of liquor and was enjoined by a federal court from further sale of alcoholic beverages. When he violated the order, he was accused of contempt and sentenced to prison -- and then pardoned by the president.

Despite the pardon, a federal judge in Chicago ordered him to jail on the theory that a charge of criminal contempt was not an "offense against the United States" because it was a judicial act, and a presidential pardon would violate the separation of powers.


http://www.washingtonpost.com/wp-dyn/content/article/2007/07/20/AR2007072001802.html

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This article in essence argues that referring Miers and Bolton to the US Attorney is not a good route to go as it opens the door for a presidential pardon. However, if Congress were to arrest and imprison Miers and Bolton, because of the separation of powers, a presidential jpardon would have no effect on Bolton's and Miers' situation as it would violate the separation of powers. If Miers and Bolton were to file a writ of Habeas Corpus, the author cites case law that shows the SCOTUS would have no choice but to rule in favor of Congress,

[Kagemusha]

1. I find the logic compelling but, there's another perspective too.

Maybe Congress has an interest in allowing Bush the opportunity to repent on this... or to further slam the door shut in Congress' face and make the case for inherent contempt far more compelling? Frankly, some would call it an impeachable offense.

[Gman]

2. Personally, I'm not sure the Democrats are not feeding Bush all the rope he wants

to hang his self and the GOP for next year's elections. He's already commuted Scooter Libby's sentence. If he willfully and intentionally blocks the DOJ from prosecuting contempt of congress charges, that will be real hard to defend next year when the GOP is already so low in the polls as to be just above Ebola infections. This is not to say Congress won't go the inherent contempt route when the DOJ refuses to prosecute. I think they may just want to get the Bush administration and all it's defenders on record defending their failure to prosecute contempt of congress for what are obviously conspiratorial as well as political reasons.