Is the Bush administration ... right?

In November 1982, a subcommittee of the House of Representatives delivered a subpoena to Anne Gorsuch (sometimes known by her second married name, Burford), then the administrator of the Environmental Protection Agency, asking her to produce certain documents. The Reagan administration asserted executive privilege over the documents and directed Gorsuch not to produce them, so on Dec. 16, 1982, the House cited Gorsuch for contempt. Even before the House could certify the citation to then U.S. attorney for the District of Columbia Stanley Harris, the Justice Department sued the House, seeking an injunction against the citation. As U.S. attorney, by law, Harris became a party to the lawsuit. And so -- different from the current administration's policy -- Harris decided on his own not to proceed with the contempt charges until the civil suit had concluded. In a 1996 interview for an oral history project conducted by the Historical Society of the District of Columbia Circuit, Harris, by then a U.S. district judge, explained:

"It occurred to me that what was important for me as the person charged with the responsibility for prosecuting her was that at the end of the line nobody could say that I had been told what to do or what not to do. And I came in the first morning after receiving the contempt citation and called Main Justice and said, 'I want to make it clear that I am not going to talk to anybody at Main Justice about this case.'"

The Reagan administration's lawsuit was dismissed before any of the claims made by the current administration could be put to a real test. In his opinion dismissing the case, Judge John Lewis Smith Jr. said, "The two branches [should] settle their differences without further judicial involvement," which is eventually what happened -- the Reagan administration turned over the documents sought by the House.

A quarter century later, another administration has decided to do battle. But if Congress backs down on its contempt threat without fighting, or fights the Bush administration and loses, it still has two options left to compel full testimony from Harriet Miers and Sara Taylor. It can pursue civil contempt proceedings in court, or it can attempt to use its own "inherent contempt" power to arrest and detain Miers or anyone else who has failed to comply with a subpoena, and then hold its own trial. Congress could hold any persons thus detained until they complied or until the end of the session of Congress, whichever came first. It has not used that power since 1934.

But some proponents of congressional power argue that all these remedies come with their own problems, leaving Congress at a disadvantage in fights with the executive. In an article for Roll Call that ran just a day before the Post's July 19 story, Paul M. Thompson, who was an assistant U.S. attorney from 2002 to 2005 and then served as counsel to former Sen. Mike DeWine, R-Ohio, on the Senate Judiciary Committee, argued that Congress needs to give itself new powers for its fights with the executive branch.

"The process we have right now when Congress gets into a dispute with the executive is like the New York Yankees playing a Little League baseball team," Thompson said in an interview. "The executive is the Yankees, Congress is the Little League team, and there is absolutely nobody to be the umpire."

Thompson said he tends to believe that the executive branch has the power it asserted last week, but thinks that's beside the point. What Thompson wants to see is a change in the law, so that Congress has powers like, for example, the federal courts or the secretary of agriculture, both of whom can pursue contempt charges essentially on their own.

"The way the system is set up institutionally, [Congress] can never get a resolution on these matters," Thompson said. "It's almost a beat-the-clock situation for the president ... We need -- and I don't have any clear answers yet -- we need to figure out a process that works better than the one that's in place."

Sen. Leahy might agree. (He was traveling and unavailable for comment beyond the statement referenced earlier in this article.) In 2000 he used the apparent weakness of Congress' position to argue against Congress' citing a White House official for contempt. But at that time, Republicans controlled Congress and the official was a Democrat -- Attorney General Janet Reno. Dismissing the efficacy of both the criminal and the civil contempt procedures, Leahy said Congress' only option was to use its inherent contempt power -- and he dismissed that as well, calling it "an embarrassing spectacle."

"The only way to enforce a contempt citation is by a trial on the Senate floor ... The civil contempt mechanism normally available to Congress ... specifically exempts subpoenas to the executive branch," Leahy said. "Obviously, there is also a criminal contempt citation ... but this procedure requires a referral to the Justice Department. Is [Sen. Arlen Specter, R-Pa., then the chairman of the Judiciary Committee] suggesting that we make a criminal referral of contempt about the Justice Department to the Justice Department? I assume not."

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