A contemptible abuse of 'contempt': The last thing the country needs is another political circus in Congress

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As Rep. Darrell Issa, R-Calif., presses the House of Representatives to hold Attorney General Eric Holder in contempt, he should lock himself in his office and read the Federalist Papers.

Mr. Issa wants to place Mr. Holder in contempt for failing to turn over additional documents relating to the botched "Fast and Furious" operation, which was designed to track weapons purchases by drug cartels along the Mexican border. Fast and Furious and its predecessor during the George W. Bush administration ended up putting guns in the hands of criminals.

The problem is, using Congress's contempt power to deal with this mess plays fast and loose with core principles under our Constitution. The last time Congress tried to pull this stunt, it almost ran the government train off the track.

The year was 1998. The House Oversight and Government Reform Committee -- the same committee Mr. Issa now chairs -- was in hot pursuit of Attorney General Janet Reno, hoping to knock out President Bill Clinton while he was on the ropes with the Monica Lewinsky affair.

Then, the committee was chaired by Rep. Dan Burton, R-Ind., an outspoken foe of President Clinton who went so far as to shoot a watermelon in a bizarre experiment to prove that a White House lawyer and Clinton friend, Vince Foster, had been murdered. (Multiple investigations proved that Mr. Foster had committed suicide).

Mr. Burton's big opportunity to nail Mr. Clinton came in late summer 1998 when the president finally confessed to a grand jury that he had engaged in an "inappropriate" affair with Ms. Lewinsky, a former White House intern. As the drumbeat for impeachment grew louder, Mr. Burton and his committee voted along party lines to hold Ms. Reno in contempt for failing to investigate and prosecute cases involving fundraising irregularities by prominent Democrats.

Janet Reno was the perfect target: She would either be forced to provide information that could bring down the Clinton White House or be stripped of her power as chief law enforcement officer and humiliated.

The full Congress never took a vote on this contempt measure. Yet a hidden piece of history reveals that some members of Congress planned to go for broke.

In 2004, while working on a book about the scandals that nearly destroyed the Clinton presidency, I interviewed Henry Hyde, who had led the impeachment drive against Mr. Clinton as chairman of the House Judiciary Committee. Mr. Hyde and his counsel, the affable Chicago attorney David Schippers, told me with some satisfaction that they had developed a plan to incarcerate Ms. Reno and other Justice Department officials so as to hogtie Mr. Clinton and his administration.

Independent Counsel Ken Starr's investigation had floundered. Mr. Hyde and his team were prepared to subpoena reams of documents from the Justice Department relating to alleged finance violations by the 1996 Clinton-Gore campaign. When the Justice Department refused to comply, the Republican Congress would hold Ms. Reno and other officials in civil contempt, locking them up in a "jail-type facility" like street criminals.

Mr. Hyde authorized Mr. Schippers to take this extreme step. It was only because the Republicans took a drubbing in the November elections that their secret plan was taken "off the table."

Mr. Issa's maneuver in 2012 is right out of the same play book. (In fact, his predecessor, Mr. Burton, still serves on the oversight committee.)

Mr. Issa apparently has never read Federalist No. 47, in which James Madison explained the necessity of keeping our three branches of government separate under the U.S. Constitution: "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates." Similarly, Alexander Hamilton, writing in Federalist No. 9, warned that the three "departments" of government had to be kept separate, with strong checks and balances, to guard against political factions running amok.

Political factions are indeed running amok in the U.S. Capitol these days, and both sides need to stop it.

Of all the misadventures engaged in by Henry Hyde and the House leaders at the time they sought to remove Bill Clinton from office, the plan to jail Ms. Reno and other Justice Department officials was an absolute low-point in a sorry tale of governmental lack of restraint.

Article 1 of the Constitution gives Congress the power to make laws; it is neither a police force nor a jailer. Those powers, pursuant to Article 2, reside in the executive branch. Nor does the Constitution give Congress explicit contempt powers. In rare cases, Congress has issued contempt orders to punish individuals who have sought to bribe legislators or disrupt its proceedings, but this is reserved for extreme situations, not inter-branch squabbles like the one over Fast and Furious.

Congress has given itself additional power, by statute, to issue criminal contempt citations. But these must be enforced by the Justice Department, and it is inconceivable that an attorney general would pursue a contempt proceeding against himself.

Finally, there is a civil contempt process -- created in the post-Watergate era -- that allows Congress to seek enforcement through the courts. Ironically, this law creates a specific exemption for federal government employees (like Eric Holder) acting in their official capacities. The exemption, designed to safeguard the separation of powers, was championed by then-Assistant Attorney General and now-Supreme Court Justice Antonin Scalia, who told the Senate that trying to weigh Congress' need for information against the executive branch's need to protect the confidentiality of information "is the very type of 'political question' from which ... the courts [should] abstain."

If Rep. Issa believes he has the power to hold the nation's chief law enforcement officer in contempt, what would stop Attorney General Holder from returning the favor by arresting Rep. Issa on the streets of Washington for "seditious behavior?" The only thing stopping him would be the Constitution's command that powers be separated to preclude such monkey business.

The last thing America needs right now is another political circus. If ever there was a time for the three branches of government to stop poking each other in the eyes so they can focus on the task at hand, it is now. No meaningful congressional work will be accomplished by holding Eric Holder in contempt. If Rep. Issa sits in his office reading the Federalist Papers, however, there's a remote chance that something productive might get done.


Ken Gormley is dean and professor of law at Duquesne University School of Law and the author most recently of "The Death of American Virtue: Clinton vs. Starr."


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