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House Arrest

On the eve of losing the House, the Republican National Committee sent journalists a frantic e-mail. "Who is Rep. John Conyers (D-MI)?" the missive asked, referring to the man now slated to lead the House Judiciary Committee. "A radical Democrat who would promote an agenda of investigation, obstruction, impeachment and disarmament."

As far as GOP bogeymen go, Conyers has some credibility. During the past two years alone, he has requested investigations of the administration's renditions of suspected terrorists, Condoleezza Rice's possible transgression of Hatch Act prohibitions against campaigning on the job, and Justice Department attempts to obstruct the hydra-headed Jack Abramoff investigation. And, of course, the RNC also pointed to Conyers's proposals for the possible impeachment of President Bush.

But, while Republicans paint a nightmare scenario of subpoena-mad Democrats, they fail to capture its truly melodramatic conclusion. Yes, Democrats will attack hard. As one staffer told me, "[T]he memos I've seen suggest that Congress has strong power to investigate. We'll try to find the best test case, and, if we can show that Republicans are part of a cover-up, it's a good fight for us." But Democrats also insist that they will take care to avoid the errors of Clinton-era Republicans, who were spoiling for impeachment as soon as they seized the House in 1994 (see Michael Crowley, "Subpoena Envy," November 6).

Restraint, however, may not be enough to prevent a constitutional confrontation that could make Monicagate look tame. That's because any conflict could escalate quickly when the White House, invoking its radical theory of unilateral executive authority, refuses to cooperate with Democratic investigations.Congress may then hold the White House officials in contempt, setting up legal battles that could make their way to the Supreme Court while paralyzing the government in the process. One likely spark for this kind of conflagration is a Democratic investigation into the National Security Agency's (NSA) secret surveillance program.

HERE’S HOW A constitutional collision could unfold. After the new Congress begins in January, Chairman Conyers sends letters to the Justice Department and the White House counsel demanding secret documents that cast light on the scope and mechanics of the snooping. The questions might include whether Bush obstructed justice when he denied the security clearances that the Justice Department's Office of Professional Responsibility needed to investigate the program.

True to form, Attorney General Alberto Gonzales and Bush ignore the letters. Conyers responds by issuing subpoenas for documents and testimony. Gonzales then insists that the documents are protected by executive privilege. The Judiciary Committee, followed by the full House, votes to hold Gonzales in contempt of Congress—a federal crime with a punishment of up to a year in prison. After Nancy Pelosi, the speaker of the House, certifies the contempt citation, she then forwards it along to the U.S. attorney for the District of Columbia, demanding that he haul Gonzales before a grand jury.

What happens next? The U.S. attorney might well ignore the request, leading House Democrats to sue in federal court for an order mandating the prosecution of Gonzales. Here, the legal precedents are in the Democrats' favor. During the Teapot Dome scandal in the 1920s, Congress investigated the attorney general's failure to prosecute Harding administration corruption, and executive officials refused to respond to subpoenas. The Supreme Court issued two important decisions, sustaining the arrest of the attorney general's brother for contempt of Congress and upholding the contempt conviction of a witness who refused to answer questions on the grounds that the courts were already investigating Teapot Dome.

The last time the House cited an executive official for contempt was in 1982, when Anne Gorsuch, the administrator of the Environmental Protection Agency, asserted executive privilege and refused to respond to a subpoena from House members investigating the Superfund scandal. A grand jury ultimately declined to intervene in the fight. The White House eventually agreed to provide limited access if Democrats dropped the contempt citation.

It's difficult to imagine the Bush administration being similarly accommodating. A White House that has insisted that its executive authority gives it the right to stretch or ignore laws with which it disagrees is not likely to fold under threat of congressional contempt. If Gonzales and Bush decide to fight a congressional contempt citation all the way to the Supreme Court, it's hard to predict what the Court would do. In United States v. Nixon in 1974, the Court rejected Richard Nixon's claim of absolute executive privilege and ordered him to turn over the tapes that had been subpoenaed by the Watergate special prosecutor. The Court suggested that it might reach a different result in a case involving "a claim of need to protect military, diplomatic, or sensitive national security secrets." But other cases have held that Congress has broad power to subpoena even confidential information, because courts presume that congressional committees will act responsibly and won't lightly vote to make classified material public—which they're legally free to do. As the Roberts Court's performance in Hamdan v. Rumsfeld suggests, it is not shy about standing up to the president to defend the powers of Congress. And, in a head-to-head judicial conflict with Congress, Bush could plausibly lose.

REGARDLES OF HOW the Supreme Court ruled in Conyers v. Gonzales, there would be subsidiary legal battles raging for months as the contempt case made its way up to the Supreme Court. Democrats and Republicans would fight about whether to force Gonzales to testify by granting him the necessary immunity—immunity grants require a two-thirds vote by the relevant committee—and the scope of his immunity might provoke lawsuits of its own. All these fires would be raging from a single investigation into the NSA scandal. At the same time, a series of related battles and lawsuits might be erupting from parallel investigations into Iraq war intelligence, Halliburton cronyism, and the misuse of presidential signing statements.

Even if the Supreme Court eventually ruled against Congress in Conyers v. Gonzales, Congress could always enforce contempt citations on its own. In a little-used procedure, Congress has the power to punish recalcitrant witnesses for "inherent contempt." As Morton Rosenberg of the Congressional Research Service points out in an invaluable 1995 report on investigative oversight that House Democrats are now heavily consulting, the defiant witness can be brought before the House or Senate by the sergeant at arms, tried, and locked up in the capitol jail. (In 2004, a citizen-activist was sentenced to a six-month term there for "disrupting Congress" by demanding to testify at a judicial confirmation hearing.) This inherent contempt procedure hasn't been invoked by Congress for more than 70 years, because a cumbersome trial for contempt has the potential to grind Congress to a halt. But, if the White House is obdurate and the courts are unsympathetic, congressional Democrats might decide that a contempt trial—unlike a presidential impeachment--would be good politics as well as good theater. And, of course, the House is always free to impeach Gonzales for his refusal to cooperate, which might be less politically risky than an impeachment of Bush.

The history of congressional investigations suggests that Congress can score political points by challenging a defiant White House, but only when it maintains some sense of proportion. Whitewater, for example, was a gift to Bill Clinton's opponents—until House Republicans embarked on their quixotic pursuit of impeachment. This time around, House Democrats say they will assimilate the lessons of the recent past and provoke Bush into overreacting to their subpoenas while keeping their cool. Of course, this restraint may be undone by a few hotheaded colleagues in the mood for payback. Regardless of who wins this match of constitutional chicken, it may occupy most of Bush's attention until he departs office in January 2009—a moment that the nation, by that point, will greet with exhaustion and relief.