More from the CRS Report on Congress’ Contempt Power:

The Position of the Department of Justice on the Use of Inherent and/or Criminal Contempt of Congress Against the Executive Branch

The Department of Justice (DOJ) has taken the position that Congress cannot, as a matter of statutory or constitutional law, invoke either its inherent contempt authority or the criminal contempt of Congress procedures against an executive branch official acting on instructions by the President to assert executive privilege in response to a congressional subpoena. This view is most fully articulated in two opinions by the DOJ’s Office of Legal Counsel (OLC) from the mid-1980s, and has been the basis of several recent claims with respect to pending congressional investigations.

. . . The 1984 opinion focuses almost exclusively on the criminal contempt statute, as that was the authority invoked by Congress in the Superfund dispute. In a brief footnote, however, the opinion contains a discussion of Congress’s inherent contempt power, summarily concluding that the same rationale that makes the criminal contempt statute inapplicable and unconstitutional as applied to executive branch officials apply to the inherent contempt authority:

We believe that this same conclusion would apply to any attempt by Congress to utilize its inherent “civil” contempt powers to arrest, bring to trial, and punish an executive official who asserted a Presidential claim of executive privilege. The legislative history of the criminal contempt statute indicates that the reach of the statute was intended to be coextensive with Congress’ inherent civil contempt powers (except with respect to the penalties imposed). Therefore, the same reasoning that suggests that the statute could not constitutionally be applied against a Presidential assertion of privilege applies to Congress’ inherent contempt powers as well.

Okay. Bush has adopted the Ted Olson reasoning. But can the President do anything about it? Let's discuss on the flip.

Via Marty Lederman and scotusblog, the Congressional Research Service has just issued a comprehensive report on the Congress' contempt power. Of especial interest to today's controversies are the discussions of Congress' power to investigate abuse and fraud and the inherent contempt power. On investigations of abuse and fraud, such as the US attorney firings, the report states:

Congress’s power “to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes.” The Court did not limit the power of congressional inquiry to cases of “wrongdoing.” It emphasized, however, that Congress’s investigative power is at its peak when the subject is alleged waste, fraud, abuse, or maladministration within a government department. The investigative power, the Court stated, “comprehends probes into departments of the Federal Government to expose corruption, inefficiency, or waste.” “[T]he first Congresses,” held “inquiries dealing with suspected corruption or mismanagement by government officials” and subsequently, in a series of decisions, “[t]he Court recognized the danger to effective and honest conduct of the Government if the legislative power to probe corruption in the Executive Branch were unduly hampered.” Accordingly, the Court now clearly recognizes “the power of the Congress to inquire into and publicize corruption, maladministration, or inefficiencies in the agencies of Government.”

(Emphasis supplied.) In the US attorneys firings scandal, the Congress' investigative power is at its zenith while the President's claim of executive privilege is at its ebb as it does not involve a question of national security. It does not even inolve communications with the President. Isn't it obvious why White House counsel Fred Fielding wants no part of a court adjudication of this dispute? Because he is sure to lose. More.

TPM Muckraker:

Tom Daschle, the former Senate Democratic leader who received briefings on the Bush administration's warrantless surveillance programs, says Alberto Gonzales isn't telling the truth about what Senate and House leaders were told in March 2004 about the program's utility and legality.

. . . It was only after a briefing for the so-called "Gang of Eight" bipartisan congressional leaders demanded that the program continue, Gonzales said, that he and then-White House chief of staff went to "inform" Ashcroft of the Gang's wishes.

. . . Daschle was one of that Gang of Eight:

"I have no recollection of such a meeting and believe that it didn't occur. I am quite certain that at no time did we encourage the AG or anyone else to take such actions. This appears to be another attempt to rewrite history just as they have attempted to do with the war resolution."

Daschle's statement bolsters one that his former Gang of Eight colleague, Senate intelligence committee chairman Jay Rockefeller (D-WV), gave to Dan Eggen of the Washington Post: Gonzales is "once again is making something up to protect himself," Rockefeller said.

Ooops. There really is no excuse not to impeach him.

As usual, but particularly on this, I speak for myself only. My views are not necessarily shared by TalkLeft or its contributors.

What Hunter said. Of course, if the Senate had listened to the Big Orange Hate Filled Site back in January 2005, we would not be in this Gonzo mess in the first place:

We oppose the nomination of Alberto Gonzales to the position of Attorney General of the United States, and we urge every United States Senator to vote against him. . . . With this nomination, we have arrived at a crossroads as a nation. Now is the time for all citizens of conscience to stand up and take responsibility for what the world saw, and, truly, much that we have not seen, at Abu Ghraib and elsewhere. We oppose the confirmation of Alberto Gonzales as Attorney General of the United States, and we urge the Senate to reject him.

Posts 1 and 2 here.

Eugene Volokh provides more justification for the use of inherent contempt by the Congress to enforce its subpoenas:

[F]irmly insisting on denying Congress any power to initiate prosecutions of people who resist its commands — commands that Congress wants to argue are lawful — would indeed make it much harder for Congress to make its commands stick. . . . Congress can itself prosecute the contumacious official(s) to coerce them to comply — a power that the Supreme Court has affirmed. . . . 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 . . ."

. . . [H]ere Congress would not only order a prosecution, but could actually try and punish the person, though subject to certain limits. This is a deeper departure from the separation of powers than simply ordering the Justice Department to prosecute — in front of a normal judge and jury — would be.

Nonetheless, it is a departure that is sanctioned by longstanding legal doctrines, and (relatedly) by our constitutional history. . . . [I]t seems like the legally authorized approach — the use of a traditional and narrow departure from standard constitutional norms, and not a new departure.

It seems difficult to see how unitary executive proponents can argue with the power of Congress to commence inherent contempt proceedings while at the same time denying the rights of the courts to review claims of executive privilege. Indeed, Volokh obviously can not. Yet another reason to favor inherent contempt proceedings in the face of the Bush Administration's outlandish assertions.

Cockfighting is legal in Puerto Rico. And now the broadcast of cockfights over the Internet is a First Amendment issue here:

The change in the focus of the debate -- from live fights to video depictions of them -- has expanded the argument over cockfighting's cruelty into one that involves the First Amendment and, its defenders say, cockfighting's cultural significance in other countries.

. . . At the heart of the dispute is a law signed by President Bill Clinton that makes it illegal to create, sell or possess a depiction of animal cruelty with the intention of selling the depiction -- across state lines or internationally -- for commercial gain. . .. In signing the law, Clinton said it was important that the law not be construed so broadly as to "chill protected speech." Toward that end, the law offers an exception for depictions of animal cruelty that have "serious religious, political, scientific, educational, journalistic, historical or artistic value." But the law does not spell out which depictions qualify.

The company's Miami lawyer, David Markus, dismisses the child pornography comparison, instead comparing cockfighting to bullfighting, hunting and fishing. . . .

I do see bullfighting on the Spanish cable stations beamed here and it is not clear to me how bullfighting is more acceptable than cockfighting. Indeed, it is arguably worse as the bull does not naturally fight men whereas cocks do fight each other, and to the death sometimes.

In an editorial for tomorrow's paper, the NYTimes Editorial Board writes:

The next question is how Congress will enforce its right to obtain information, and it is on that point that the administration is said to have made its latest disturbing claim. If Congress holds White House officials in contempt, the next step should be that the United States attorney for the District of Columbia brings the matter to a grand jury. But according to a Washington Post report, the administration is saying that its claim of executive privilege means that the United States attorney would be ordered not to go forward with the case.

. . . The White House’s extreme position could lead to a constitutional crisis. If the executive branch refused to follow the law, Congress could use its own inherent contempt powers, in which it would level the charges itself and hold a trial. The much more reasonable route for everyone would be to proceed through the courts.

. . . Congress should use all of the tools at its disposal to pursue its investigations. It is not only a matter of getting to the bottom of some possibly serious government misconduct. It is about preserving the checks and balances that are a vital part of American democracy.

I agree with this editorial. And implicit in the times' last graf is that IF the Bush Administration blocks a judicial remedy, then the Congress must proceed to inherent contempt proceedings. That is also the conclusion I have reached as well.

Like most recent converts, I now have a certain zeal. My zeal is now for the use of inherent contempt power by the Congress in the face of the Bush view that a President's assertion of executive privilege in response to a congressional subpoena is beyond the purview of the courts. Before, I was very reticent about inherent contempt, for precisely the same reason I have reacted negatively to this unbound assertion by the Bush Administration that it is the President who decides whether a claim of executive privilege is valid -- it undermines our system of checks and balances. The Founders were primarily concerned with making sure the each branch was checked by the others. Inherent contempt is, in a way, the flip side assertion of unbound power in the Executive. But it becomes necessary here because the Bush Administration has chosen to argue against checks and balances. As Steven Benen writes:

Let’s cut to the chase: the president and his team are arguing that once the White House claims executive privilege, there is no recourse. The president is accountable to literally no one — not the Congress, whose subpoenas can be ignored, or the federal judiciary, which can’t hear a case that cannot be filed. We’re talking about what is, in effect, a rogue presidency.

In the face of this assertion, I believe the Congress has no choice now but to commence inherent contempt proceedings against those witnesses who refuse to testify based on the Bush claim of executive privilege. The claims, according to Bush, can not be tested in court. More.

Our friends at People For the American Way send us this:

Senator Edward Kennedy and a bipartisan group of fourteen of his colleagues have introduced the Fair Pay Restoration Act to vastly reduce the damage done by the Supreme Court's recent ruling in Ledbetter v. Goodyear Tire. The sharply divided, 5-4 ruling left many workers who face persistent pay discrimination based on sex, race, religion or nationality with no legal recourse.

“Congress has a rare opportunity to correct a terrible decision by the Supreme Court,” said Ralph G. Neas, President of People For the American Way. “The Roberts Court made it more difficult for Americans to recover wages unfairly denied them and much easier for employers to engage in pay discrimination with impunity. Congress must act now to undo the Court’s unjust assault on the individual rights of American workers and the laws passed by Congress to protect them.” . . .“We must do everything possible to prevent what happened to Lilly Ledbetter from happening again,” said Neas. “Congress has the authority and the obligation to ensure that justice is not denied to those Americans who face discrimination in the workplace.”

Hear, hear! Watch Lily Ledbetter discuss fair pay:

Via KagroX, WaPo reports:

Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.

The essence of the Bush position is that the federal statute that calls for US Attorneys to enforce congressional subpoenas through contempt proceedings is an unconstitutional violation of the separation of powers. Rather than testing this proposition in court, it appears that Bush will rely on his bald assertion. In such circumstances, the Congress appears to have two options - file a lawsuit through a special counsel (not a special counsel appointed by Justice) to enforce the subpoena or proceed with inherent contempt, a proceeding solely judged by the House or Senate, as opposed to the more traditional contempt proceedings through judicial process.

With Fred Fielding as White House counsel, this postion from the Bush Administration is less surprising, though still shocking, than one imagines, as he asserted the same position in 1982 in the Gorsuch matter, though he filed suit that time:

On December 2, the Administration withheld 64 documents from the subcommittee. . . . By a vote of 9 to 2, a subcommittee of the House Public Works Committeedecided to cite Gorsuch for contempt. The full committee did likewise, after it rejected a Justice Department proposal to give briefings on the contents of the documents. The House of Representatives voted 259 to 105 to support the contempt citation. . . Pursuant to the statutory procedures for contempt citations, the Speaker certified the facts and referred them to the U.S. Attorney for presentation to a grand jury. The Justice Department, anticipating the House vote, moved quickly: “Immediately after the House vote and prior to the delivery of the contempt citation,” the department chose not to prosecute the case. Instead, it asked a district court to declare the House action an unconstitutional intrusion into the President’s authority to withhold information from Congress.

More. And see Marty Lederman, who links to Reagan era Ted Olson opinion that is the basis for the claim today.

Tens of thousands of graduating law students around the country (11,000 in New York alone) are in final crunch mode studying for next week's bar exam.

The TL kid is one of them.

Above the Law has put up an open thread for sharing bar exam tips and stories. I'm doing the same here. Humor is appreciated. (And thanks to all of you who responded here.)

I can't imagine taking a bar exam in a room with thousands of other people. Nor can I imagine rules like these.

Applicants are NOT permitted to bring any items into the examination room other than one (1) clear, gallon-sized plastic food storage bag which may contain:

Pens (blue or black ink only)
Medication
No. 2 Pencils, Erasers, Highlighters
Feminine Hygiene Products
Beverage in plastic container or juice box only
Tissues
Quiet Snack (No peanut or tree nut products)
Ordinary Earplugs

More....

The New York Times reports on a new study by an economist at Harvard that says federal public defenders get better results than CJA lawyers (privately appointed lawyers under the Criminal Justice Act.) The 40 page study is here.

How much better? The study says the PD's clients sentences were on the average 8 months shorter.

I think federal public defenders do a great job. I always laugh when I get a call from a prospective client who tells me they want to get rid of their pd and hire private counsel so they can get a "real lawyer."

I also do a few CJA cases a year. It's how we private lawyers give back -- our way of doing pro-bono, taking cases for far less than we get in our private practices. In my district, we're not contract lawyers in that we don't agree to take a percentage of the court's case load or even a set number of cases a year. We get called occasionally, when the Public Defender has a conflict, and if we're free (usually 2 days from the time we get the call), we agree to take the case.

I'm not an economist or a statistician, but I think this study is seriously flawed. The first problem I have with the study is this incorrect premise:

More...