BooMan on the invocation of inherent contempt and the coming showdown

i posted briefly yesterday on larisa's post on john dean's thoughts about harriet miers' refusal to respond to the subpoena of the house judiciary committee... i commented at the time that i thought it was interesting that no mention was made of inherent contempt charges... well, stupid me, i hadn't bothered going to john dean's findlaw post to read the whole thing... my bad... booman obviously did and has this to say...

Congress hasn't used [the power of inherent contempt] since 1934 and it would be a spectacle. The Congress would have the sergeant-at-arms arrest Harriet Miers and then she would face a trial in the House. The Department of Justice would not be involved. Inherent Contempt can be invoked in either house of Congress, so the Senate could do the same thing to Sara Taylor if they so desired. In the 1934 case the Senate convicted the postmaster general to 10 days in prison. He appealed it all the way to the Supreme Court and lost.

This is the beginning point to impeaching the president. Bringing Inherent Contempt charges against Miers will provide the kind of exotic storyline that will crystallize the extreme crisis that we are in for the public.

john dean...

[I]f Miers is found in contempt, the House itself can take action against her at the bar of the House. (The Senate can similarly hold such proceedings.) Congress has the power to prosecute contumacious witnesses to require them to comply, and the Supreme Court has repeatedly reaffirmed this power. For example, in 1987, in Young v. U.S., Justice Antonin Scalia recognized "the narrow principle of necessity" or "self-defense" of the Congress in protecting its institutional prerogatives. Scalia said "the Legislative, Executive, and Judicial Branches must each possess those powers necessary to protect the functioning of its own processes, although those implicit powers may take a form that appears to be nonlegislative, nonexecutive, or nonjudicial, respectively."

When all is said and done the only way Congress can protect its prerogatives is to undertake its own contempt proceedings. The parliamentary precedents of the House provide such procedures, by which Congress can effectively protect itself.

[...]

Given the clear attitude of conservative presidents, who are doing all within their power to make Congress irrelevant, Congress should turn to these underemployed precedents and put them back to work. The House and Senate Judiciary Committees should take the lead in reviving these procedures, and the Democrats' leadership should announce that they are embracing them.

If they do not, Fred Fielding has it right: Officials are absolutely immune from compelled Congressional testimony. Bush can simply tell Congress to stop sending subpoenas to his appointees. However, if Congress does engage in a little self-help at this crucial juncture, it can be sure that not only Harriet Miers, but also George Bush, will be forced to pay attention to congressional subpoenas - for the bottom line is that Congress will not need the cooperation of the other branches to enable it to conduct proper oversight.

booman concludes with this...

It is only when the battle becomes clearly a battle, not between parties, but between branches of government, that the Republicans will stand up and remove a president that they really have no use for. They won't remove him for torture, or illegal spying, or kidnapping, or voter fraud, but they'll consider it for usurping the powers of Congress. And if the president is going to stay the course in Iraq, they may well compel him to turn over the documents that will seal his fate.

i'm waiting, and not very patiently either...

and, for the umpteenth time, lest we forget, these stakes were spelled out by the bush administration last october...

"In fact, when it comes to deploying its Executive power, which is dear to Bush's understanding of the presidency, the President's team has been planning for what one strategist describes as 'a cataclysmic fight to the death' over the balance between Congress and the White House if confronted with congressional subpoenas it deems inappropriate. The strategist says the Bush team is 'going to assert that power, and they're going to fight it all the way to the Supreme Court on every issue, every time, no compromise, no discussion, no negotiation.'"

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