Well, not exactly. But pretty close. I asked the following a few weeks ago: “Since DOJ has now repudiated the position of the 1984 OLC memo with respect to the availability of a civil remedy, the question remains whether it also repudiates the memo’s denial of an inherent contempt remedy.”
The answer to that question is yes. Arguing before U.S. District Judge John Bates today, the DOJ attorney explicitly acknowledged that Congress could use the inherent contempt remedy to enforce demands for information to executive branch officials. When a few minutes later Judge Bates suggested that Congress could arrest former White House Counsel Harriet Miers, the DOJ attorney helpfully interjected “or Mr. Bolten.”
So lets get this straight. The Justice Department contends that senior WH officials like Bolten and Miers have absolute immunity from appearing before congressional committees in response to subpoenas, an immunity which it contends is needed not only to protect executive privilege, but to prevent distraction of key presidential aides and maintain the “autonomy” of the President. Rather than allowing this dubious claim to be tested through a civil contempt suit, which would require little or no personal involvement by the aides in question, DOJ suggests that it can only be tested by arresting the aides, throwing them in a jail cell, and having them seek release through a habeas petition. This is the way to protect presidential autonomy and keep the WH running smoothly?
This was far from the only interesting takeaway from today’s hearing, but it was certainly the most jaw-dropping. More on the hearing later.