Congressional Investigations 101: What Happens In Criminal Contempt?

Today Attorney General Michael Mukasey preempted a vote by the House Oversight Committee to hold him in criminal contempt. President George W. Bush asserted executive privilege for Mukasey, enabling him to further stall in turning over Vice President Dick Cheney’s interview with Patrick Fitzgerald about Valerie Plame. But the committee may yet hold Mukasey– and EPA Administrator Stephen Johnson and who knows what other administration official– in criminal contempt. What would that portend?

The House oversight committee is deferring to Mukasey and Johnson’s executive privilege claims right now but that may not last for long. If the committee gets a majority vote to officially hold either in contempt, the matter would then go before for the full House. Then if the House votes — again with a simple majority — to hold either in contempt, Speaker of the House Nancy Pelosi has a few options:

-Refer the matter to the Justice Dept. This is what happened when the House voted to hold White House chief of staff Josh Bolten and former top White House adviser Harriet Miers in contempt this February. Attorney General Michael Mukasey promptly declared that they will not prosecute Bolten, Miers or any other Bush administration officials. So, presumably, for the rest of the Bush administration, this option is essentially off the table.

-Sue the White House. The House Judiciary Committee chose this rather novel path after the Justice Dept. ignored the Bolten and Miers charges. The committee filed a motion in federal court asking a judge to uphold their subpoena demanding Bolten and Miers provide Congressional testimony about fired U.S. Attorneys.

-Lock them up in a cell. Congress has "inherent contempt power." This means that if someone is held in contempt by the House or Senate, the House or Senate sergeant-at-arms can physically arrest and imprison the contemptuous official. The official would likely then be held in a cell in the basement of a House office building.

Frank Askin, a constitutional law professor at Rutgers University, said that "inherent contempt" hadn’t been evoked since the Teapot Dome scandal of the Warren Harding administration in the 1920′s. Askin predicts that Congress will be "too timid" to make what he calls "the politically explosive" move of physically detaining Mukasey or any other official. Though unlikely, managing editor Laura McGann is obsessed with this idea.

What’s more likely, Askin says, is that House Democrats will take Mukasey to court arguing that the Justice Dept. is obligated to prosecute contempt of Congress cases. Stephen Gillers, a professor of legal ethics at New York University law school, also suspects that Congress will ask a federal judge to order Mukasey to obey his subpoena.

This is what’s happening now with Bolten and Miers, though prosecution of Mukasey would provide the added question of whether the Attorney General must prosecute himself. "We’re moving into unknown territory now," said Askin

Before Miers and Bolten, the House hadn’t voted to hold someone in criminal contempt since former EPA Administrator Anne Gorsuch in 1983. In that case, Gorsuch was under fire for her mismanagement of the Superfund hazardous waste clean-up program. President Ronald Reagan told her to assert executive privilege, but then the Reagan Justice Dept. declined to defend her. Consequently, Gorsuch resigned and blasted Reagan for betraying her.

It would be a startling turn of events if Bush turned his back on Mukasey, Miers, Bolten, and Johnson– all of which have followed his every wish to keep quiet.