Loggerheads

Suppose Abu refuses to prosecute a Congressional contempt citation. What then? I posed that question below and this post seems to explain the possibilities. One in particular intrigued me:

Number 2:

Second, Congress can itself prosecute the contumacious official(s) to coerce them to comply -- a power that the Supreme Court has affirmed. See Jurney v. MacCracken, 294 U.S. 125 (1935); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821); see also Groppi v. Leslie, 404 U.S. 496, 499 (1972). As Justice Scalia explained in Young v. U.S. ex rel. Vuitton et Fils, S.A., 481 U.S. at 820, this legislative prosecution authority is a constitutional anomaly of sorts -- a "limited power of self-defense" for Congress, permissible because "any other course 'leads to the total annihilation of the power of the House of Representatives to guard itself from contempts, and leaves it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it'" (quoting Anderson).

How would such self-help work? Well, believe it or not, the Sergeant-at-Arms of the Senate or House would personally arrest the officials and detain them in the Capitol jail or guardhouse (assuming such a facility still exists). (One of my students last semester noticed this gem on the website of the current Senate Sergeant-at-Arms, Terrance Gainer: "The Sergeant at Arms is authorized to arrest and detain any person violating Senate rules, including the President of the United States." We wondered in class: What could possibly have motivated Mr. Gainer or his staff to post that provocation?) The person would then be tried by the legislative house and, if found guilty (of civil contempt), could be detained until compliance with the subpoena or until the session of Congress ends, Anderson, 19 U.S. at 231, whichever comes first.

Congress has not invoked this authority since 1935 and, as far as I know, has never used it against a current or former government official. (The closest case was probably the contempt at issue in McGrain v. Daugherty, 273 U.S. 135 (1927), which was imposed against Mally Daugherty, a bank president and the brother of resigned and disgraced Attorney General Harry Daugherty, who Congress was investigating in connection with the Teapot Dome scandal.)

My my. This is getting close to a kinda "tanks in the street" scenario. There was another option that was more likely, number 3. I'll let you read it if you're interested. Basically it's a civil action that Congress can institute directly. Less dramatic, more likely, and I would suspect it's right where we're headed.

I read earlier that most Presidents and Congresses have resisted these kind of showdowns out of fear of codifying a loss of power for a particular branch. But that was all before George Freakin' W. Bush. Ironically, and if we're all lucky, Bush's overreach will result in a weaker President, not a stronger one.