Inherent contempt: Based on his behavior in the past few weeks, Pres. Bush must be hiding something really nefarious. He has forbidden his aides — including former legal counsel Harriet Miers, current chief of Staff Josh Bolten and now Karl Rove — from even showing up to testify about the firing for political reasons of U.S. attorneys.
– Norm Ornstein
When Democrats in Congress threatened the aides with contempt of Congress, Bush announced that the Justice Dept. would ignore the charges. In other words, his is an imperial presidency, and Emperor Bush is accountable to no one.
This leaves the Democrats with one option: charging the White House aides with inherent contempt:
Under this process, the procedure for holding a person in contempt involves only the chamber concerned. Following a contempt citation, the person cited for contempt is arrested by the Sergeant-at-Arms for the House or Senate, brought to the floor of the chamber, held to answer charges by the presiding officer, and then subject to punishment that the House may dictate (usually imprisonment for punishment reasons, imprisonment for coercive effect, or release from the contempt citation).
So assuming Rove, Miers, Bolten and other White House aides are found guilty, they would not be remanded into the federal justice system, which is overseen by the president, but rather would be jailed in the U.S. Capitol Building under the jurisdiction of the Legislative Branch.
Yes, there are jail cells in the Capitol Complex, and they once used quite frequently, according to congressional expert Norm Ornstein:
In the case of contempt, Congress began early in its history to protect its ability to compel testimony to it by private citizens and executive officials by arresting and jailing — in the Capitol — those who refused to cooperate. The first case dates to 1795. The Supreme Court in 1821, in Anderson v. Dunn, recognized Congress’ inherent power but noted that the power was limited to “the least power adequate to the end proposed,” and the court limited imprisonment, saying it could not last beyond the adjournment of Congress. Congress passed a statute in 1857 to allow longer terms of imprisonment as well as allowing it to turn contempt cases over to the courts for indictment and trial, with penalties including fines of “not more than $1,000 nor less than $100″ and imprisonment “in a common jail of not less than one month nor more than twelve months.”
The practice in the 20th century, at least, has been to turn cases over to the Justice Department to handle and allow the courts to intervene if the case involved a tension between legislative and executive prerogatives; 1934 was the last time Congress used its inherent power and handled the prosecution of a contempt case itself.
Norm Ornstein’s bottom line: “Perhaps it is time for Congress to dust off its rusty inherent contempt power, reopen the Capitol hoosegow, get some of the Capitol Police’s finest, and put a couple of people behind bars for a few days or a bit longer to show that there is indeed recourse here–that the blanket assertion of executive privilege and untethered executive power just does not wash.”
Yesterday, even the ranking Republican on the Judiciary Committee mentioned the option of jailing the Bushies in-house:
Specter later circled back to Gonzales on the matter, warning him: “My suggestion to you is you review your testimony to find out if your credibility has been breached to the point of being actionable,” Specter said. The maximum penalty for being caught lying to Congress is five years in prison and a fine of $250,000 per count. Specter wryly noted to reporters during a break that there is a jail in the Capitol complex.
One possible fly in the ointment about the congressional trials: if they were held in the Senate, rather than the House, they would be presided over by the president of the Senate, who happens to be Vice Pres. Dick Cheney.
On the other hand, presidential pardons appear not to apply to civil contempt procedures such as inherent contempt because it is not an “offense against the United States” or an offense against “the dignity of public authority.”