Congressional Investigations: Subpoena and Contempt Power

The House Judiciary Committee on Wednesday authorized Chairman John Conyers of Michigan to issue subpoenas for former White House counsel Harriet Miers and White House chief political adviser Karl Rove, as well as other aides.

Democrats investigating the firings of eight U.S. attorneys believe that the decisions were guided by politics instead of performance, and want to know the extent to which the White House aides were involved in the firings.

A subpoena is a legally enforceable demand to produce information, whether it's oral testimony, documents or electronic information. If the person named in the subpoena doesn't comply with the order, he or she can either be hit with fines or even face jail time.

Congress' subpoena power is laid out the House and Senate's individual rule packages, which are allowed for in the Constitution, as well as through federal case law. The Constitution does not expressly provide powers for Congress to investigate, issue subpoenas or to punish for contempt.

Since subpoena power is authorized through the rules created by the House and Senate, the subpoenas have the same authority as if they were issued by the entire congressional body in which they originate.

For a committee to issue a subpoena, a majority must be present, although the power to authorize and issue subpoenas may be delegated to the committee chairman. Committee rules can vary the procedures for issuing subpoenas.

The Wednesday vote in the House subpanel authorizes Conyers to go ahead with the issuance. It will be up to him to decide whether to do so. He said that will be based on ongoing negotiations with the White House and their compliance.

The Senate Judiciary Committee on Thursday is considering giving its chairman the same authority. Sen. Arlen Specter, R-Pa., on Wednesday — while not ruling out the idea —suggested that subpoenas would make the investigation into the attorney firings longer rather than shorter, predicting it could take until 2009 before courts resolve the matter.

"If we have a confrontation between the president and the Congress and we go to court — which is the way these matters have been resolved if there can't be an accommodation — we face very, very long delays," he said.

President Bush has said he will agree to allow Miers, Rove and other officials to give Congress testimony, but he will not allow them to do so under oath and does not want transcripts of the private meetings, something Democrats are demanding.

Louis Fisher, a constitutional law specialist for the Library of Congress, said that should Conyers decide to go ahead and sign off on subpoenas and issue them, it could be a short time before Rove, Miers or anyone else would testify. The possibility of a contempt charge on someone's resume usually is enough to get them to comply, he said.

Fisher said that while the White House might be considering invoking executive privilege — the broad claim that members of the administration shouldn't have to testify because of constitutional separation of powers between Congress and the executive branch — the White House might have a hard time proving that.

For instance, Miers is no longer a member of the administration, drawing into question how clearly the lines of the executive branch are drawn. He also said that as recently as 2004, the White House backed off executive privilege claims when it allowed then-National Security Advisor Condoleezza Rice to testify under oath before the Sept. 11 Commission.

Fisher said if Miers, Rove or anyone else chose to ignore the subpoenas they could be found in contempt, but the charge first would need to be put before a vote of the full House or Senate.

"It helps if there is some kind of bipartisan quality to it ... so it doesn't look like a totally partisan" effort, Fisher said.

Congressional staff would handle issuing the subpoenas. Once each subpoena is signed by the committee chairman, it is then brought in person to whomever is named in the subpoena. Congress, however, would need to turn to the Justice Department — in this case, one of the agency's under fire — to prosecute any contempt charges that could arise.