Before moving on, and before I forget, I should point out that there is a reason my title claims we can put Rove away for years, while the proposal from Common Cause would only lock him up until next January. While the House must release all prisoners at the end of each two-year Congress (and has traditionally done so), the Senate need not and can hold them into the next Congress. And, remember that while the House Judiciary Committee just recently voted to hold Rove in contempt, the Senate Judiciary Committee voted to do that last December. It simply hasn't yet done it, choosing to defer to the full Senate, which chooses to shut its eyes, cover its ears, and hum.
But deferring to the full House or Senate is part of the tradition of statutory contempt, not inherent contempt. It has been solidly established that inherent contempt resides in a full house or a committee. So, what is statutory contempt? Well, in 1857 Congress passed a law criminalizing contempt of Congress (and the maximum jail time is 12 months). It did so in large part precisely because of the need to free prisoners at the end of each Congress, but also because of the time-consuming nature of putting people on trial for contempt, something that was commonly done by committee, with the accused often permitted legal counsel and witnesses. Given what Congress spends its precious time on these days, who wouldn't wish for it to have back its inherent contempt power? Well, our wish is granted. Congress never lost that power, and in fact continued to exercise it up through 1934since when it has simply chosen not to. Inherent contempt is a power that resides in what the U.S. Constitution created to be the most powerful branch of the government. It cannot be overruled in court, and it cannot be vetoed or pardoned. It can also not be endlessly delayed by court appeals, which is where the House's contempt citations for Miers and Bolten now are. Delaying that court decision until the next Congress, which seems likely, makes the possibility of enforcement unlikely. And if a decision were reached, it would fall to Congress to use inherent contempt to enforce it anyway.
On April 15, 2008, the Congressional Research Service (CRS) laid out its understanding of contempt powers in an updated report: http://www.fas.org/sgp/crs/misc/RL34097.pdf
This report describes the first use of Congressional contempt in 1795. Bizarrely, to the modern eye, the matter arose when a number of Congress Members protested that someone had attempted to bribe them. While today's members of Congress will hardly deign to speak with anyone who has not properly bribed them through our "campaign financing" system, at that time this action was considered an insult to the dignity of Congress. Yes, Congress was believed to possess dignity. (Another early case involved a newspaper falsely reporting that the Senate had passed a bill. Nowadays it's acceptable for the president to falsely sign a bill that wasn't passed. False reporting these days is almost considered a patriotic duty.)
The CRS report disagrees with the Bush administration's assertions of "executive privilege" but cannot change the fact that they are likely to be raised again as often as needed. And the report suggests that the Fifth Amendment right to avoid self-incrimination applies in certain contexts. However, past tradition makes that claim debatable, and the statute reads:
"U.S. CODE
TITLE 2--THE CONGRESS
CHAPTER 6--CONGRESSIONAL AND COMMITTEE PROCEDURE; INVESTIGATIONS
Sec. 193. Privilege of witnesses
No witness is privileged to refuse to testify to any fact, or to produce any paper, respecting which he shall be examined by either House of Congress, or by any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or by any committee of either House, upon the ground that his testimony to such fact or his production of such paper may tend to disgrace him or otherwise render him infamous."
The power of Congress that I am proposing it use or lose is not the sort of power the White House has claimed to randomly kidnap, detain, disappear, torture, and murder. Everything Congress does in this regard must be open and public. It must not randomly, even if publicly, arrest someone for an offense unrelated to contempt of Congress - or for no offense at all. It must allow communication with legal counsel and family. It must treat everyone humanely. It must not abuse its power, and such abuses must be checked by the judicial branch. The purpose of Congress detaining prisoners is to compel them to produce information believed to be of potentially vital importance to the governance of our nation.
The CRS report provides very little background on this, but a great deal can easily be had. Simply look up Hinds Precedents, especially chapters 53 and 51, and Cannon's Precedents, especially chapters 184-185. You'll find numerous detailed cases of Congress asserting its power, arresting people, holding them until they agreed to answer questions, and then releasing them. Some of these people did not refuse to appear, but simply failed to satisfactorily answer questions. One has to wonder how a previous Congress might have responded to Alberto Gonzales's endless recitations of "I do not recall."
In 1857, a New York Times reporter refused to say which members of Congress had asked him to get them bribes (protecting his "sources" just as various Judith Millers today protect the people who feed them proven lies that costs thousands of lives), so Congress locked him up until he answered and then banned him from Congress. Imagine trying that with ABC News executives until they revealed who fed them the anthrax-is-from-Iraq lies.
In 1924 an oil executive appeared but refused to answer certain questions, so the Senate held -- literally held -- him in contempt. Senator Thomas Walsh of Montana argued that this question of contempt was of the gravest importance, and that it involved "the very life of the effective existence of the House of Representatives of the United States and of the Senate of the United States." The matter was taken to court, and the witness fined and imprisoned. Imagine locking up the attendees of Cheney's secret energy task force meetings until they explained how our supposedly democratic government arrived at some of its worst recent decisions.
Various cases of contempt in the past have involved perceived insults to Congress and have been resolved by a simple apology. This may strike people today as humorous and vain. I find less fault in it than I do in today's Congress, which appears completely incapable of feeling either shame or self-respect. If impeachment is off the table, inherent contempt is in the past, contempt citations are delayed until moot, subpoenas are laughed at, FOIA requests are tossed in the trash, and other appeals to the executive branch to please allow itself to be overseen are simply ignored, then I must agree with Senator Walsh that we are witnessing the very death of the House and Senate. The capacity to hold someone in contempt, on its own, in September, would be a sign of life in what otherwise appears a motionless corpse.
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