Answering a question we posed a few weeks ago regarding Congress' ability to enforce contempt charges against uncooperative White House officials, Frank Askin, a professor at Rutgers School of Law, and director of the Rutgers Constitutional Litigation Clinic, says the answer is simple: arrest them yourself.
Rather than relying on a clearly compromised Justice Department to compel officials to testify—which, "leaves Congress beholden to hostile executive branch officials to enforce its prerogatives on exactly the type of charges that the administration said this week it would not allow officials to pursue"—simply direct the Senate sergeant-at-arms to take custody of those who defy congressional subpoenas.
But what about a presidential pardon? Fooey on that.
"So long as Congress is investigating issues over which it has the power to legislate, it can compel witnesses to appear and respond to questions," said Askin. Furthermore, he adds, "That power has been affirmed over and over in prosecutions for contempt."
The soft underbelly of presidential pardon authority, according to Askin, is in the type of offense with which a defendant has been charged. A contempt of congress charge is a civil offense and distinguished from a criminal offense, over which the president has pardoning power.
The distinction between criminal and civil contempt is well recognized. The punishment for criminal contempt is a set fine or jail term. A civil contempt punishment is framed in terms of either/or: either the defendant does X or suffers daily consequences until X is done. That concept is often explained by the aphorism that the defendant has the keys to the jail in his own pocket. He can free himself by obeying the court order. (The jailing of New York Times reporter Judith Miller for refusing to answer questions during the Scooter Libby investigation is a recent example.)
So instead of referring this matter to a US Attorney (who would report to Big Alberto, who reports to Big George W. Bush, who said he would not enforce such charges of contempt...), just have the sargent-at-arms lock 'em up. Askin says you could even throw them into the bowels of the Capitol, al la Tower of London-style!
Let's hope some congressional staffer reads this and they actually haul Karl Rove, et al, down to the pokey until they talk.