House could arrest Holder with inherent contempt power

Despite voting to hold Attorney General Eric H. Holder Jr. in contempt of Congress, there’s little House Republicans can do in the short term to compel him to turn over documents — unless it wanted to revisit a long-dormant power and arrest him.
The thought is shocking, and conjures up a Hollywood-ready standoff scene between House police and the FBI agents who protect the attorney general. It’s a dramatic and unlikely possibility not least because Congress doesn’t even have a jail any longer. But in theory it could happen.
Republicans say it’s not even under consideration, with House Speaker John A. Boehner’s spokesman flatly ruling it out.

But the process, known as inherent contempt, is well-established by precedent, has been confirmed by multiple Supreme Court rulings, and is available to any Congress willing to force such a confrontation.
“The House is scared to death to use the inherent contempt power,” said Mort Rosenberg, a fellow at the Constitution Project and author of “When Congress Comes Calling.” “They’re scared to death because the courts have said … the way the contempt power is used is unseemly. It’s not that it’s unconstitutional, because it’s been upheld by four Supreme Court decisions, but unseemly to have somebody go arrest the attorney general.”
That’s why it’s been more than 75 years since either chamber has used the option though it used to be somewhat common.
The House on Thursday voted 255-67 to hold Mr. Holder in criminal contempt, and 258-95 to pursue a case against him in the courts.
But those votes do little to break the impasse over his refusal to turn over documents the House is seeking in an investigation into Fast and Furious, a botched gun-walking operation. The House issued subpoenas for the documents last year but President Obama last week asserted executive privilege in withholding them.
A court case will take time, meaning there’s little immediate effect of the two contempt votes.

Indeed, the lack of any penalty for Mr. Holder’s failure to cooperate was cited by one Democrat as his reason for voting against Thursday’s contempt motion.
“While I strongly believe that the Department of Justice should fully cooperate with Congress to ensure transparency in the Fast and Furious operation, this motion lacks an enforcement mechanism to make it anything more than politically motivated,” said Rep. Heath Shuler, North Carolina Democrat.
That’s why Mr. Rosenberg, a former analyst for the Congressional Research Service, said Congress should consider using its own police powers and should try to impose a fine rather than physically arrest someone.
Short of that, there are few options left to Republicans, said Louis Fisher, another former CRS analyst who specialized in separation of powers issues.
“They had hoped that by acting today they would get Holder to make some concessions. That didn’t happen. Now I think it’s pretty awkward,” he said.
He said the best chances for an end to the stalemate now rely on the political process which is one reason why Republicans said they were seeking answers for the family of Border Patrol Agent Brian A. Terry, who was killed in a shootout where two of the guns from Fast and Furious were found.
Mr. Fisher, a scholar in residence at the Constitution Project who has written a forthcoming article in the National Law Journal criticizing Mr. Obama’s legal reasoning for asserting executive privilege, said a key break could come if more Democrats joined Republicans in pushing for disclosure.
Inherent contempt is not unknown to members of Congress.
House Minority Leader Nancy Pelosi raised the issue last week, noting that when she was House speaker and Congress was fighting with the Bush administration over testimony related to the firing of U.S. attorneys she could have had Karl Rove arrested.
“I could have arrested Karl Rove on any given day,” Mrs. Pelosi, California Democrat, said as part of a sit-down interview with the Huffington Post.
“I’m not kidding. There’s a prison here in the Capitol. If we had spotted him in the Capitol, we could have arrested him,” she said.
Back in 2007 and 2008, there was substantial interest in Congress‘ arrest powers, with CNN even doing a segment in 2008 trying to figure out where Mr. Rove could have been jailed if the House chose to go that route.