Congress’ options for challenging Bush include:
— Criminal contempt. The House Judiciary Committee initiated contempt proceedings this week against White House Chief of Staff Joshua Bolten and former White House counsel Harriet Miers for rebuffing subpoenas. The full House could vote on the contempt matter in the fall.
Experts think it’s unlikely that any court would force the Justice Department to take such charges to a grand jury or appoint a special prosecutor. And the Justice Department, citing briefs from the Reagan and Clinton administrations, said it doesn’t believe that the contempt of Congress law applies to executive branch employees acting on what they believe to be legitimate orders from the president.
— Lawsuit for declaratory judgment. Several legal experts said this is probably Congress’ least contrived route.
While the court rejected a Senate case against the administration during Watergate, post-Watergate changes to rules governing federal lawsuits appear to give Congress the standing and jurisdiction to sue over the executive privilege question in federal court.
Congress could ask the courts to enforce the subpoenas or ask the court to rule on the validity of the president’s privilege claim. Or Congress could sue over a side issue that the White House might have a weaker case for shielding, such as staff e-mails about the U.S. attorney firings sent on Republican Party e-mail accounts.
But while Congress probably can bring the case, the law doesn’t require the courts to decide it.
One case experts look to for guidance is from 1983, when the executive branch sued the House to try to pre-empt a criminal contempt case involving the Environmental Protection Agency. The court kicked the conflict back to the executive and legislative branches to work out, and a compromise was reached.
If courts did agree to take a case from Congress, there's no guarantee that judges would agree that Congress’ legislative need for documents and testimony outweighs the president’s right to receive unfettered advice from his aides.
— Civil contempt. This is a power Congress carved out in 1978 to try to enforce subpoenas through courts on state government officials or corporate officials, short of criminal contempt.
There are two hurdles that are probably insurmountable, however, experts said: The Senate’s civil contempt law exempts executive branch employees. And the House doesn’t have a civil contempt statute.
—“Inherent” contempt. Congress has the authority to conduct its own contempt trials and act as the jury. But any conviction could last only through the duration of that two-year Congress and couldn't compel the release of documents or testimony. Also, the last time it was used was in 1934, on a private lawyer, not White House aides.
The prospect of a congressional sergeant-at-arms arresting former White House Counsel Miers, holding her in custody somewhere on Capitol Hill, and Congress trying her is unlikely.
“It’s unseemly to some people to do that,” said Stanley M. Brand, a former House Democratic counsel. “It’s also more cumbersome.”
— Legislation. Congress could pass legislation requiring the courts to consider challenges to executive privilege, or it could try to beef up its oversight powers on executive personnel matters. But to do either, lawmakers would need a veto-proof majority.
Any lawyers out there? Or any optimists?