Congress’ options for challenging President Bush

"Congress"

07/29/2007

McClatchy News Service | July 28, 2007



The House Judiciary Committee initiated contempt proceedings last week against White House Chief of Staff Joshua Bolten and former White House counsel Harriet Miers. Experts think it's unlikely that any court would force the Justice Department to take such charges to a grand jury or appoint a special prosecutor. And the Justice Department said it doesn't believe that the contempt of Congress law applies to executive branch employees acting on presidential orders.

DECLARATORY JUDGMENT

Several legal experts said this is probably Congress' least contrived route. Congress could ask the courts to enforce the subpoenas or ask the court to rule on the validity of the president's privilege claim. Or Congress could sue over a side issue that the White House might have a weaker case for shielding, such as staff e-mails about the U.S. attorney firings sent on Republican Party e-mail accounts. But while Congress probably can bring the case, the law doesn't require the courts to decide it.

CIVIL CONTEMPT

This is a power Congress carved out in 1978 to try to enforce subpoenas, short of criminal contempt. There are two hurdles that are probably insurmountable, however, experts said: The Senate's civil contempt law exempts executive branch employees. And the House doesn't have a civil contempt statute.

'INHERENT' CONTEMPT

Congress has the authority to conduct its own contempt trials and act as the jury. But any conviction could last only through the duration of that two-year Congress and couldn't compel the release of documents or testimony.

LEGISLATION

Congress could pass legislation requiring the courts to consider challenges to executive privilege, or it could try to beef up its oversight powers on executive personnel matters. But to do either, lawmakers would need a veto-proof majority.