The House Judiciary Committee will vote today on whether to recommend to the full House that Harriet Miers and Josh Bolten be held in contempt of Congress.

The committee is expected to recommend that they be charged with statutory contempt. The vote count on the committee is unclear, though it's expected to pass. The question is whether Republicans will agree to stand up for their own prerogatives against the overreaching executive branch, and if so, in what numbers.

Does a successful vote today mean Miers and Bolten go to prison? No. It is essentially a recommendation that the full House consider the question, and a majority vote of the House is necessary before the process can move forward.

If the full House votes to hold Miers and Bolten in contempt, is that enough?

Not anymore.

These days (really, since 1982 if you're keeping score at home) the executive branch claims the House can't have contempt of Congress charges prosecuted, because it controls the U.S. Attorneys, and that's who the law says is supposed to handle the case if the Congress votes for contempt.

Keep in mind that the contempt charges are being voted on because the executive branch refuses to testify on whether or not it's exerting improper political control over their U.S. Attorneys.

So if the full House votes to hold Miers and Bolten in contempt and the White House refuses to allow a prosecution to go forward, what happens?

Well, nothing. The "administration" laughs in your face and rides off into the sunset.

Does that mean the Congress has no other options? No. It may opt to use "inherent contempt" procedures, in which the aggrieved house orders the detainment of non-compliant witnesses, and tries them directly before the body, without reliance on any other branch of government. Arrests are made under the authority of the Sergeant at Arms, and contemnors are detained on Congressional authority, most likely in the D.C. Capitol Jail, a facility maintained by the municipal government of the District of Columbia.

Are there other options? Yes. The House may file suit in federal court, seeking an order compelling the U.S. Attorney to act, perhaps seeking an injunction against White House interference, or a declaratory judgment of some sort reinforcing the validity of Congress' right to have charges brought. But the last time such an impasse came about (1982, in the case of EPA Administrator Anne Gorsuch), the Reagan administration actually filed suit first, seeking to block enforcement of the Congressional subpoenas, and to have the contempt case against Gorsuch dismissed, because she was acting under presidential orders to assert executive privilege.

By the way, the White House counsel who coordinated the 1982 strategy was none other than Fred Fielding, who -- coincidentally, no doubt -- is the current White House counsel coordinating the strategy today. (His assistant at the time: now Chief Justice of the Supreme Court, John Roberts.)

The case was dismissed by the court, with an admonition to both parties to work out their differences on their own. So the lawsuit route is a crap shoot, at best. And almost certainly will cost valuable time and momentum.

Is impeachment an option? Yes. Eventually, the Congress may find itself unable to compel compliance through either contempt mechanism or through the courts. If so, and if the need to reject executive overreaching becomes compelling enough, they may opt to impeach, on grounds similar to those cited in the third article of impeachment adopted by the House Judiciary Committee in the case of Richard M. Nixon.

Are there any other options? Yes, again. One, of course, is give up and go home, conceding that the Congress ultimately has no power to enforce its subpoena power -- either forever after, or at least until such time as the composition of the Congress is such that an impeachment vote against some future intransigent administration becomes feasible, or the composition of the federal courts changes sufficiently.

Another option would be to legislatively devise some sort of middle ground, and establish new ground rules from scratch that would allow the Congress a better shot at vindicating its rights in court. But that hasn't happened yet, and time is running short.

In sum, the options (in no particular order) are these:



Try to negotiate a settlement acceptable to both the Congrses and the White House Roll the dice on statutory contempt and see what the U.S. Attorney does Use the inherent contempt procedure, either after statutory contempt has failed, or as a concurrent threat to encourage the U.S. Attorney to move Create some new procedure legislatively, and hope it stands up to court challenges from the "administration" when Congress actually tries to use it Move to impeach, whether the target be Gonzales (as the U.S. Attorney's boss), Bush (for misapplying executive privilege claims), or Cheney (if Congress believes it has established a connection between him and this particular obstruction, which to this point they apparently do not, despite Senator Whitehouse's revelations yesterday) Do nothing, and hope some future administration does the same thing but is in an even weaker position politically when it does so, and can be brought to heel

One potential downside to keep in mind regarding the above options, particularly numbers 2-4: the Bush "administration" may also attempt to claim the president has the right to pardon anyone charged with contempt. Will that work? For statutory contempt, most likely yes. For inherent contempt, most likely no -- though you can expect the opposite to be asserted, too, if it comes to it. For some new procedure? Well, we'll have to wait and see, though a smart approach would be to define any jail time involved as being analogous to that involved in civil (i.e., coercive) contempt.

And for those who would rather take the word of some actual experts, there's this newly-revised report from the Congressional Research Service: Congress's Contempt Power: Law, History, Practice and Procedure. (PDF)