The phrase takes on new meaning with this morning’s Washington Post report that the Administration will “never” allow the Justice Department to pursue contempt charges initiated by Congress against White House officials, once the President has invoked executive privilege. Statutory contempt proceedings are Congress’ trump card in compelling the testimony of Executive Branch officials, and it has already begun laying the groundwork for them to force former White House Counsel Harriet Miers and White House Chief of Staff Josh Bolten to testify in the investigation of last year’s firing of U.S. Attorneys.
The argument has a Catch-22 quality: There’s no way to challenge the President’s assertion of executive privilege, because, well, the President has asserted executive privilege.
There’s also no real precedent for this, at least not one that has been legally tested. The article points out that the Reagan Administration made the same kind of argument in 1984, when EPA Administrator Anne Gorsuch Burford was cited for contempt by the House, but before it got to court, Burford turned over documents. In fact, that is how these standoffs over executive privilege have generally turned out in the past–with a deal. Neither side appears interested in one this time.
Where does that leave Congress? Barred from taking its case to court through the Justice Department, it may turn to its “inherent contempt” power to hold its own trials and even order officials to jail. The procedure was widely used in the 1800s, but hasn’t been since 1934.
Here’s an interesting wrinkle, though: This recounting of the last such trial, courtesy of Patrick Leahy, suggests that if it were undertaken by the Senate, it would be presided over by none other than … Dick Cheney.