A January 29th letter from the U.S. president’s lawyer Marc Kasowitz claims that the president cannot possibly obstruct justice, can refuse a subpoena to testify, and cannot be indicted while president. The letter also seems to claim that he can pardon himself for his crimes. The hope that such a reading misinterpreted the letter was pretty well smashed when the same president’s lawyer Rudy Giuliani said this weekend that the Constitution says the president can pardon himself.
Here’s what the Constitution actually says: “[H]e shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” The lunacy of self-pardoning does not come up in the Constitution. Nor does the royalist notion that a president cannot obstruct justice. If that were accepted, Nixon could not have been removed from office by an imminent impeachment that carefully avoided his most serious crimes in Southeast Asia; the stupid idea that a coverup is worse than a crime could not have been turned into common sense; Nixon would have pardoned himself; and any president would be able to de facto obstruct and preempt any investigation desired.
There are, I think, two basic theories as to how we reached this point in the Trumperial Presidency. One is the mainstream acceptable notion that Vladimir Putin did it to us. The other is the fringe, fact-based understanding that the gradual slide in this direction over the past couple of centuries took some major leaps forward in recent decades. George W. Bush obstructed justice in the case of Valerie Plame Wilson and was not impeached or otherwise held accountable. The Bush and Obama administrations refused to comply with numerous subpoenas, without consequence or nefarious Russian involvement. Among those who refused to comply with Congressional subpoenas, never mind requests, while George W. Bush was president were: the Department of Justice, the Secretary of State (“not inclined” was Condi’s explanation), the Vice President (who preemptively announced he would probably not comply with such silliness and didn’t), the White House Counsel, the White House Chief of Staff, the White House Political Director, the White House Deputy Chief of Staff, the White House Deputy Political Director, and the White House Office of Management and Budget.
As with many other elements of the imperial presidency, Obama continued the policy of complying with subpoenas only as desired. This fit with his practice of rewriting laws with signing statements in the Bushian manner, refusing to prosecute torture, murder, warrantless spying, or lawless imprisonment, expanding secrecy, expanding legal arguments for ever-greater executive powers, developing a whole new system of lawless murder by robotic airplane, launching war without Congressional authorization, etc.
There are two powers Congress has over a president. One is inherent contempt. One is impeachment.
When people refuse to comply with Congressional subpoenas these days, Congress sometimes “holds them in contempt.” But it doesn’t actually hold them. In fact, it expects the Justice Department to do the enforcement of subpoenas — even those addressed to the Justice Department. Needless to say, this does not work.
In decades gone by, Congress used to make use of a power called inherent contempt, which meant the power to preserve its own existence by compelling witnesses to cooperate and holding them in jail on Capitol Hill until they saw fit. No more. Now “inherent contempt” is just the feeling that bubbles up in the stomach of your average American when a member of Congress walks by. 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. This 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 the use of police force has disappeared as a response to recalcitrant witnesses, it is still routinely used for people who applaud inappropriately.
In the early years of this country, inherent contempt was not distinguished as “inherent”. It was simply called contempt. But it was enforced exclusively by Congress, just as contempt of a court was enforced by a court, just as contempt of a state legislature or an earlier colonial legislature or the British Parliament was enforced by the very same body. While the Constitution did not mention contempt, it was the consensus of Congress, later supported by multiple U.S. Supreme Court rulings, that Congress had the inherent right to this form of “self-protection.” This was understood most often as protection from disruptions and assaults, but also as protection from insult and from the erosion of Congressional power through the refusal to comply with requests or subpoenas. The record shows that a citation of contempt by Congress, or rather a warrant to arrest someone charged with contempt in order to put him or her on trial, does not have to be preceded by a subpoena.
Some years back, Common Cause 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. If he is found by the House to be in Contempt of Congress, he can be imprisoned for an amount of time determined by the House (not to exceed the term of the 110th Congress which ends the beginning of January 2009) or until he agrees to testify. 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 — or a committee thereof — need not and can hold them into the next Congress. 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. Given what Congress spends its precious time on these days, who wouldn’t wish for it to have back its inherent contempt power? Well, our wish is granted. 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.
On April 15, 2008, the Congressional Research Service (CRS) laid out its understanding of contempt powers in an updated report. This report describes the first use of Congressional contempt in 1795. Bizarrely, to the modern eye, the matter arose when a number of Congress Members protested that someone had attempted to bribe them. While today’s members of Congress will hardly deign to speak with anyone who has not properly bribed them through its “campaign financing” system, at that time this action was considered an insult to the dignity of Congress. Yes, Congress was believed to possess dignity.
Impeachment is almost as underrated as inherent contempt.
With “The Genius of Impeachment: The Founders’ Cure for Royalism,” John Nichols produced some years back a masterpiece that should be required reading in every high school and college in the United States. Nichols makes an overwhelming case that the regular use of impeachment is necessary for the survival of our constitutional government, that impeachment proceedings usually have beneficial consequences even if unsuccessful, that promotion of impeachment is not nearly as politically risky as is failure to do so when it is merited, that a move to impeach Bush in the U.S. House would have been greeted with enthusiastic public support, and that failure to impeach Bush would contribute to an ongoing dangerous expansion of executive power from which our system of government might not recover — a prediction that proved true during the Obama years, when Nichols (a partisan Democrat) tended to overlook it, and in the Trump years, when Nichols is again a strong advocate for impeachment.
Did you know that articles of impeachment have been filed against nine (make that 11) U.S. presidents? Did you know that in seven cases (make that 8), Republicans or Whigs were either the chief sponsors or major supporters of impeachment? Did you know that Republicans, in a minority, concerned about the rule of law and the presidential seizure of wartime powers, launched a major effort to impeach President Truman, an effort that ended only when the Supreme Court took up the same concerns and ruled against Truman (and Congress and the President obeyed the Supreme Court)? Did you know this effort benefited the Republicans in the next election?
Did you know that Republicans who put the Constitution above a Republican president cast the votes that sealed President Nixon’s fate? Of course, they did so only after the Democrats had acted.
While Nichols covers the history of impeachment from the 1300s on, including efforts to impeach Prime Minister Tony Blair, obsessed with the present as I am, I want to pull out a few of Nichols’ remarks on the recent history of the Democratic Party in the United States. These will not mean as much in isolation; you really must read the book. But here’s a taste of it:
“When the congressional Democrats failed to pursue impeachment as the necessary response to the Iran-Contra revelations of rampant illegality in the Reagan White House – rejecting the advice of Henry B. Gonzalez, the wily Texas congressman who alone introduced the appropriate articles in 1987 – they thought they were positioning the party for victory in the coming presidential election. Instead, Vice President George Herbert Walker Bush, having recovered from the gentle slap on the wrist he received from Congress for his own involvement in the scandal, was elected to the presidency in 1988 by a landslide, and expected Democratic advances in Congress failed to materialize.
“Pulling punches in a political battle usually results in a knockout, with the party that holds back collapsing to the mat and struggling, often for a very long time, to finally get up again. And the Democratic Party of the George Herbert Walker Bush years, with its inexplicable penchant for pulling punches, runs the very real risk of being flattened not once but repeatedly if it fails to confront the issue of rampant wrongdoing on the part of the Bush administration.”
“‘I think that we should solve this issue electorally,’ Pelosi repeatedly argued, conveniently avoiding mention of the fact that – like Andrew Johnson when he was impeached in 1868, like Harry Truman when Republicans discussed impeaching him in 1952, like Richard Nixon when the House Judiciary Committee voted to impeach him in 1974, and like Bill Clinton when he was impeached in 1998 – George Bush and Dick Cheney were unlikely ever again to face the American electorate.”
“‘How can we impeach this guy?’ [Columnist Harold] Meyerson’s answer was ‘we can’t’ – not because Bush is beyond reproach but because ‘to dwell on impeachment now would be to drain energy from the election efforts that need to succeed if impeachment is ever truly to be on the agenda.’ So the counsel from Meyerson, one of the savvier political writers on the left, was to try a bait-and-switch. Run on health care and education, win the Congress and then, perhaps, begin to entertain questions of impeachment. The problem with such strategies is twofold: First, they misread the politics of impeachment. Second, they make impeachment nothing more than a partisan political act – precisely what House Minority Whip Leslie Arends, an Illinois Republican, termed it in 1974 when, on the eve of the House Judiciary Committee vote on articles of impeachment against Richard Nixon, he declared ‘Impeachment is purely a Democratic maneuver. We ought to recognize it as such and we ought to stand up as Republicans and oppose the whole scheme.’ Within days, Arends looked very much the fool, as more than a third of the Judiciary Committee’s Republican members, including several key conservatives, cast votes in favor of impeachment. Within weeks, Arends no longer looked but indeed was the fool, as voters swept from office dozens of Republicans who had opposed impeachment….”