WASHINGTON — Congress and the White House appear headed for a showdown over President Bush's decision to invoke executive privilege to deny documents to House and Senate committees and prevent former aides from testifying about the firing of U.S. attorneys.
Lawmakers, in turn, have threatened to hold subpoenaed officials in contempt of Congress.
Here are some questions and answers about the contempt of Congress process:
Q: What is contempt of Congress, and why would Congress want to use this power?
A: Congress can hold a person in contempt if that person obstructs proceedings or an inquiry by a congressional committee. Congress has used contempt citations for two main reasons: (1) to punish someone for refusing to testify or refusing to provide documents or answers, and (2) for bribing or libeling a member of Congress.
Q: Where in the Constitution does it say Congress can hold someone in contempt for not testifying?
A: It's not in the Constitution. It is an implied power of Congress, just like executive privilege is an implied power of the presidency.
Q: Is there any legal underpinning for a contempt of Congress citation?
A: Yes. The Supreme Court said as early as 1821 that without the power to hold people in contempt of Congress, the legislative branch would be "exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may mediate against it."
Q: What is the process for holding someone in contempt of Congress?
A: The procedure can start in either the House or the Senate. The two chambers do not work together on contempt citations. It only takes one chamber to refer a person to be prosecuted for contempt. A contempt citation can start with a subcommittee, a full committee or in the full House or Senate.
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If it starts at the committee level and a person refuses to comply with a committee subpoena, the committee has to vote to move a criminal contempt citation forward. It takes a majority vote for the citation to move to the full House or Senate.
Q: What happens next?
A: Once the full House or Senate has a contempt citation, it must be debated by the full chamber like any other resolution. It is subject to the same filibuster and procedural rules as any other House or Senate resolution. It takes a majority vote to be approved.
Once approved, the House speaker or the Senate president pro tem then turns the matter over to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action," according to the law.
Q: Is the U.S. attorney required to prosecute?
A: Depends on whom you ask. The law says the U.S. attorney "shall" bring the matter to a grand jury.
However, the House voted 259-105 in 1982 for a contempt citation against EPA Administrator Anne Gorsuch but the Reagan-era Justice Department refused to prosecute the case.
The Justice Department also sued the House of Representatives, saying its attempt to force Gorsuch to turn over documents interfered with the executive branch. The court threw the case out and urged negotiation between the executive and the legislative branches. The Justice Department did not appeal the ruling, and the Reagan administration eventually agreed to turn over the documents.
Q: When was the last time a full chamber of Congress, either the Senate or the House, voted on a contempt of Congress citation?
A: The year was 1983. The House voted 413-0 to cite former Environmental Protection Agency official Rita Lavelle for contempt of Congress for refusing to appear before a House committee. Lavelle was later acquitted in court of the contempt charge, but she was convicted of perjury in a separate trial.
Q: What is the punishment upon conviction for contempt of Congress?
A: Contempt of Congress is a federal misdemeanor, punishable by a maximum $100,000 fine and a maximum one-year sentence in federal prison.
Q: Is the contempt of Congress power used often in fights between the legislative branch and the executive branch?
A: Since 1975, 10 Cabinet-level or senior executive officials have been cited for contempt by subcommittees or committees for failure to produce subpoenaed documents. They are Secretary of State Henry Kissinger and Commerce Secretary Rogers C. B. Morton in 1975; Health, Education and Welfare Secretary Joseph A. Califano Jr. in 1978; Energy Secretary Charles Duncan in 1980; Energy Secretary James B. Edwards in 1981; Interior Secretary James Watt in 1982; Gorsuch, known as Anne Gorsuch Burford after a 1983 marriage, and Attorney General William French Smith in 1983; White House Counsel John M. Quinn in 1996; and Attorney General Janet Reno in 1998.
The White House and Congress came to negotiated agreements in each case before criminal proceedings could begin.
Q: Does the president's executive privilege trump Congress' contempt citation?
A: That's the big question that both sides really don't want answered. In the past, neither side has been willing to let the matter go up to the Supreme Court for fear that their side would lose.
If Congress loses, then it would have a hard time investigating future presidents, Republican and Democrat. If the White House loses, the current president and future ones can expect numerous requests from a reinvigorated Congress, whether controlled by the Democrats or Republicans.
Q: Is there anything the president can do once someone has been convicted of contempt of Congress?
A: Contempt of Congress is a federal crime like any other. The sitting president has the authority as chief executive to commute or pardon anyone of any federal crime.
Sources: Congressional Research Service, Senate Judiciary Committee, Associated Press interviews.
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