# Congress' options: "Inherent contempt" vs. reviving Office of the Independent Counsel **URL:** \ **Category:** Great Debates\ **Created:** [July 21, 2007, 3:49pm UTC](https://boards.straightdope.com/t/congress-options-inherent-contempt-vs-reviving-office-of-the-independent-counsel/412673 "2007-07-21T15:49:23Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [July 24, 2007, 3:25pm UTC](https://boards.straightdope.com/t/congress-options-inherent-contempt-vs-reviving-office-of-the-independent-counsel/412673/41 "2007-07-24T15:25:10Z")
[QUOTE=Bricker] There is tension between points one and two. You appear to resolve that tension in point three by saying that in all cases involving Cabinet departments, EP must yield to Congress’ oversight. In my view, that’s not a correct statemant, since to adopt it would effectively eviscerate the executive privilege. So while I can’t speak for Mr. Moto, _I_ question point three. [/QUOTE] You’re saying that one or the other of EP and Congressional oversight must be eviscerated? ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [July 24, 2007, 3:53pm UTC](https://boards.straightdope.com/t/congress-options-inherent-contempt-vs-reviving-office-of-the-independent-counsel/412673/42 "2007-07-24T15:53:39Z")
[QUOTE=RTFirefly] You’re saying that one or the other of EP and Congressional oversight must be eviscerated? [/QUOTE] Heavens no. Just that the claims of each must be weighed against the other. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [July 25, 2007, 12:28am UTC](https://boards.straightdope.com/t/congress-options-inherent-contempt-vs-reviving-office-of-the-independent-counsel/412673/43 "2007-07-25T00:28:41Z")
[QUOTE=RTFirefly] Sorry, but the only thing it conveyed to me was that you might not _know_ that anything on the part of the Executive investigating Congress at levels remotely approaching normal, everyday Congressional oversight of the Executive would be right out. [/quote] Well, hopefully in the future you have less trouble understanding my points. But since I’ve cleared things up for you, that particular avenue of discussion is more or less exhausted at this point. > [@](#): > > Congress can, at will, in the absence of the least whiff of inappropriate conduct, look into the everyday operations of the assorted Cabinet departments. The Executive has no place holding similar investigations into the everyday workings of Congressional committees; it would make no sense in the context of the Constitution. Nor did I ever say the Executive has such authority. What I questioned was the idea that Congress has more or less universal authority. People are working from the assumption in all of these threads that Congress actually has the authority to investigate the President’s office without any restrictions whatsoever. That idea is as ludicrous to me as the President trying to conduct day-to-day oversight of the Legislative branch. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [July 25, 2007, 12:41am UTC](https://boards.straightdope.com/t/congress-options-inherent-contempt-vs-reviving-office-of-the-independent-counsel/412673/44 "2007-07-25T00:41:24Z")
[QUOTE=Zoe] I think this situation closely parallels the current one. Bush’s argument is that conversations with his advisors should remain confidential. His aids should feel comfortable in being able to speak freely in giving him the best advice possible. Therefore his advisors have Executive Privilege. [/quote] If you think this situation closely parallels Watergate, then with all due respect you are either woefully misinformed about the particulars of Watergate, the particulars of this investigation, or both. > [@](#): > > If private conversations in the Oval Office are not confidential, I certainly don’t see why these would be any different. In the 1970’s the Prosecutor’s office said that “conversations involving illegal affiars should not be concealed due to the claims of Executive Privilege.” Have we lowered our standards in the last thirty years? _Lowered our standards since the Nixon years?_ There’s a problem here between this statement and this one: > [@Zoe](#): > > In mid-July of 1973, it became apparent that there were tapes of conversations in the Oval Office of President Nixon talking with several of his aids over a period of time. Because of the Senate Watergate hearings that were on-going at the time, the Senate supoened these tapes. To my knowledge the case _United States v. Nixon_ wasn’t a case of the SCOTUS deciding a matter concerning a Senate subpoena. In _United States v. Nixon_ a Special Prosecutor (who is not a member of the Legislative branch), Leon Jaworski had subpoenaed these tapes because of the fact seven persons _currently under indictment_ were recorded on said tapes, and Jaworski wanted those conversations for use in the case against the indicted men (Nixon was listed as an unindicted conspirator.) There was an actual judicial, criminal procedure going on, and those tapes were key evidence as part of said procedure. Everyone was well aware that criminal acts were probably discussed on those tapes, and that said acts would implicate President Nixon. But the actual case itself was not dealing with a Senate investigation, it was dealing with a criminal trial in the United States court system, and as part of said trial the prosecution was requesting evidence. Harriet Miers is not being asked to testify before a court of law, about a criminal case. The court specifically held that while Executive Privilege does indeed exist, it does not trump the needs of a criminal trial when we are talking about communication of a criminal nature; unrelated to sensitive diplomatic, domestic, or military information. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 25, 2007, 12:41am UTC](https://boards.straightdope.com/t/congress-options-inherent-contempt-vs-reviving-office-of-the-independent-counsel/412673/45 "2007-07-25T00:41:33Z")
[QUOTE=Martin Hyde] People are working from the assumption in all of these threads that Congress actually has the authority to investigate the President’s office without any restrictions whatsoever. [/QUOTE] I think Watergate and related court cases established (if there was ever any doubt) that it does have that authority, limited **only** by executive privilege, the boundaries of which are not clearly defined but are clearly limited. Nixon, AFAIK, never even tried to argue Congress had not the **authority** to investigate the matter. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [July 25, 2007, 12:44am UTC](https://boards.straightdope.com/t/congress-options-inherent-contempt-vs-reviving-office-of-the-independent-counsel/412673/46 "2007-07-25T00:44:49Z")
[QUOTE=BrainGlutton] I think Watergate and related court cases established (if there was ever any doubt) that it does have that authority, limited **only** by executive privilege, the boundaries of which are not clearly defined but are clearly limited. Nixon, AFAIK, never even tried to argue Congress had not the **authority** to investigate the matter. [/QUOTE] The only precedent that I believe was established in Watergate is that when a judicial criminal proceeding is ongoing, that evidence needed as part of said proceeding must be surrendered by the executive as the needs of said proceeding trump the privilege of the executive (at least in cases of information that is not of a militarily sensitive nature.) I’m not arguing Congress didn’t have the authority to investigate Watergate or _this_, I’m just arguing they don’t clearly have the authority to investigate whatever they want and to compel testimony from whoever they want without any regard to EP. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [July 25, 2007, 12:46am UTC](https://boards.straightdope.com/t/congress-options-inherent-contempt-vs-reviving-office-of-the-independent-counsel/412673/47 "2007-07-25T00:46:03Z")
[QUOTE=Martin Hyde] Nor did I ever say the Executive has such authority. What I questioned was the idea that Congress has more or less universal authority. People are working from the assumption in all of these threads that Congress actually has the authority to investigate the President’s office without any restrictions whatsoever. That idea is as ludicrous to me as the President trying to conduct day-to-day oversight of the Legislative branch. [/QUOTE] OK, then: you built a nice big fat strawman. Who, in this thread, is working from such an assumption? ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [July 25, 2007, 12:52am UTC](https://boards.straightdope.com/t/congress-options-inherent-contempt-vs-reviving-office-of-the-independent-counsel/412673/48 "2007-07-25T00:52:52Z")
[QUOTE=RTFirefly] OK, then: you built a nice big fat strawman. Who, in this thread, is working from such an assumption? [/QUOTE] Anyone who thinks that Congress can compel a personal staff member of the President to testify in a investigation of a political nature. If you believe that, then pretty much executive privilege doesn’t exist. If it can’t protect private conversations between the President and his staff, then what does it protect? If all it takes for the privilege to disappear is a simple Congressional inquiry, then does the privilege exist at all? Certainly not, as it would serve as no protection from the legislative branch whatsoever. If this were a criminal case in a court of law, I would say that while executive privilege still existed, it would be trumped by the criminal case. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 25, 2007, 1:05am UTC](https://boards.straightdope.com/t/congress-options-inherent-contempt-vs-reviving-office-of-the-independent-counsel/412673/49 "2007-07-25T01:05:41Z")
[QUOTE=Martin Hyde] I’m not arguing Congress didn’t have the authority to investigate Watergate or _this_, I’m just arguing they don’t clearly have the authority to investigate whatever they want and to compel testimony from whoever they want **without any regard to EP.** [/QUOTE] Well, there you are. EP is the only limitation on Congress’ oversight/investigation role here. Unfortunately, its limits have not been clearly dilineated. The courts would be the proper place to do it – if the Admin would allow anything that might produce such a ruling to **get** to the courts. Which brings us back to the OP. ---
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [July 25, 2007, 2:42am UTC](https://boards.straightdope.com/t/congress-options-inherent-contempt-vs-reviving-office-of-the-independent-counsel/412673/50 "2007-07-25T02:42:43Z")
[QUOTE=Martin Hyde] To my knowledge the case _United States v. Nixon_ wasn’t a case of the SCOTUS deciding a matter concerning a Senate subpoena. In _United States v. Nixon_ a Special Prosecutor (who is not a member of the Legislative branch), Leon Jaworski had subpoenaed these tapes because of the fact seven persons _currently under indictment_ were recorded on said tapes, and Jaworski wanted those conversations for use in the case against the indicted men (Nixon was listed as an unindicted conspirator.) There was an actual judicial, criminal procedure going on, and those tapes were key evidence as part of said procedure. Everyone was well aware that criminal acts were probably discussed on those tapes, and that said acts would implicate President Nixon. But the actual case itself was not dealing with a Senate investigation, it was dealing with a criminal trial in the United States court system, and as part of said trial the prosecution was requesting evidence. [/QUOTE] **Martin Hyde** is absolutely correct here. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 25, 2007, 3:48am UTC](https://boards.straightdope.com/t/congress-options-inherent-contempt-vs-reviving-office-of-the-independent-counsel/412673/51 "2007-07-25T03:48:47Z")
[QUOTE=Frank] **Martin Hyde** is absolutely correct here. [/QUOTE] Yes – [but the **Senate** was also requesting evidence.](http://en.wikipedia.org/wiki/Watergate#Senate_investigation) That started months before Jaworski was appointed, and the SCOTUS was very aware of it. Is there anything in the opinion to distinguish the scope of EP in a criminal prosecution from its scope in a Senate investigation? ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [July 25, 2007, 4:15am UTC](https://boards.straightdope.com/t/congress-options-inherent-contempt-vs-reviving-office-of-the-independent-counsel/412673/52 "2007-07-25T04:15:06Z")
One important one - Burger in his opinion in _U.S. v Nixon_ assumed that the secrecy of the matters previously held in confidence in executive privilege would be protected by an in camera investigation by investigators and prosecutors. This confidentiality isn’t assured when Harriet Miers is compelled to testify publicly before a Senate committee. Now, a private meeting could be arranged - but this was already done, and the senators seemed not to be satisfied with it. But public testimony forces the conflict to be a far more direct one. ---
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [July 25, 2007, 4:22am UTC](https://boards.straightdope.com/t/congress-options-inherent-contempt-vs-reviving-office-of-the-independent-counsel/412673/53 "2007-07-25T04:22:50Z")
[QUOTE=BrainGlutton] Is there anything in the opinion to distinguish the scope of EP in a criminal prosecution from its scope in a Senate investigation? [/QUOTE] Is there anything in the opinion to conflate the two? As far as I can tell, the Senate investigation was irrelevant to the decision. I’m not a lawyer. You are, if I recall correctly. You tell me. ---
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [July 25, 2007, 4:25am UTC](https://boards.straightdope.com/t/congress-options-inherent-contempt-vs-reviving-office-of-the-independent-counsel/412673/54 "2007-07-25T04:25:24Z")
[QUOTE=Mr. Moto] One important one - Burger in his opinion in _U.S. v Nixon_ assumed that the secrecy of the matters previously held in confidence in executive privilege would be protected by an in camera investigation by investigators and prosecutors. This confidentiality isn’t assured when Harriet Miers is compelled to testify publicly before a Senate committee. Now, a private meeting could be arranged - but this was already done, and the senators seemed not to be satisfied with it. But public testimony forces the conflict to be a far more direct one. [/QUOTE] Obviously Burger’s was not the majority view, as the matters were immediately divulged to committees of both houses, the public at large, and practically everyone in the free world. ---
**Author:** ![gonzomax](https://avatars.discourse-cdn.com/v4/letter/g/e8c25b/32.png) [@gonzomax](https://boards.straightdope.com/u/gonzomax)\ **Post date:** [July 25, 2007, 5:30am UTC](https://boards.straightdope.com/t/congress-options-inherent-contempt-vs-reviving-office-of-the-independent-counsel/412673/55 "2007-07-25T05:30:20Z")
I fear the Independent Council. It was so horribly abused during Clinton ,that I do not feel comfortable bringing it back. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [July 25, 2007, 6:27am UTC](https://boards.straightdope.com/t/congress-options-inherent-contempt-vs-reviving-office-of-the-independent-counsel/412673/56 "2007-07-25T06:27:51Z")
The decision in _United States v. Nixon_ seems to be heavily focused on the judicial process, and in what circumstances can the President keep documents from the judicial process because of executive privilege. There is really little in it that has to do with the Senate situation. A big part of why this issue has never been resolved is because of the fact that, well, the Senate got the information it wanted when Jaworski won in the SCOTUS as part of his criminal case. They were interested in the information on the tapes, not on the constitutional precedent. ---
**Author:** ![Zoe](https://avatars.discourse-cdn.com/v4/letter/z/a4c791/32.png) [@Zoe](https://boards.straightdope.com/u/Zoe)\ **Post date:** [July 25, 2007, 6:40am UTC](https://boards.straightdope.com/t/congress-options-inherent-contempt-vs-reviving-office-of-the-independent-counsel/412673/57 "2007-07-25T06:40:29Z")
Martin and Frank, I stand corrected. The criminal case was in progress at that time. This happened shortly before Nixon’s resignation. **BrainGlutton** , this comment from the [Cornell Supreme Court pages](http://www.law.cornell.edu/supct/html/historics/USSC_CR_0418_0683_ZS.html) struck me as interesting: > [@](#): > > The Supreme Court did state that the president has limited executive privilege in areas of military or diplomatic affairs, but found that due process in criminal law took precedence over that privilege. Of course we don’t have a criminal case in the works, but isn’t this about due process? And isn’t contempt of Congress a crime? Who decides if there has been contempt of Congress? I’m not try to play attorney. I don’t know these things. **Martin** , your argument that I am comparing President Bush’s current claim to EP for Harriet Myers to the entire Watergate scandal for Nixon is disingenuous – especially when you have just quoted the inherent similarity in the two situations. ---
**Author:** ![gonzomax](https://avatars.discourse-cdn.com/v4/letter/g/e8c25b/32.png) [@gonzomax](https://boards.straightdope.com/u/gonzomax)\ **Post date:** [July 25, 2007, 6:47am UTC](https://boards.straightdope.com/t/congress-options-inherent-contempt-vs-reviving-office-of-the-independent-counsel/412673/58 "2007-07-25T06:47:29Z")
Can not win in this SCOTUS. That is the reward for stacking the court when the opportunity presents itself. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [July 25, 2007, 3:02pm UTC](https://boards.straightdope.com/t/congress-options-inherent-contempt-vs-reviving-office-of-the-independent-counsel/412673/59 "2007-07-25T15:02:48Z")
[QUOTE=Martin Hyde] Anyone who thinks that Congress can compel a personal staff member of the President to testify in a investigation of a political nature. If you believe that, then pretty much executive privilege doesn’t exist. [/quote] Sorry, but wrong. You’re saying that any lesser limitation isn’t a limitation. That’s factually wrong. For instance, a privilege that protected _those advisors’ conversations with the President_ would be a less broad but still real limitation, and one that protects the heart of what EP supposedly is there for: to ensure that the President can get frank advice from his advisors without finding every stray word on the evening news. You may not like that more limited view of what EP should cover, but to say that those who hold to that view “are working from the assumption in all of these threads that Congress actually has the authority to investigate the President’s office without any restrictions whatsoever” is bullshit. To say that it would render EP nonexistent is equally bullshit. You’re using very misleading words for “I wouldn’t like that.” > [@](#): > > If it can’t protect private conversations between the President and his staff, then what does it protect? Who said it doesn’t? Find me that poster. > [@](#): > > If this were a criminal case in a court of law, I would say that while executive privilege still existed, it would be trumped by the criminal case. Or an impeachment inquiry, which is generally considered to be the equivalent of a grand jury investigation. Can’t forget that. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 25, 2007, 4:44pm UTC](https://boards.straightdope.com/t/congress-options-inherent-contempt-vs-reviving-office-of-the-independent-counsel/412673/60 "2007-07-25T16:44:56Z")
[The Judiciary Committee has voted to cite Harriet Miers and Joshua Bolton for contempt.](http://www.washingtonpost.com/wp-dyn/content/article/2007/07/25/AR2007072501104.html?hpid=topnews) Next step is a vote by the full House, then referral to the U.S. Attorney for the District of Columbia, and then . . . nothing? [Previous page](https://boards.straightdope.com/t/congress-options-inherent-contempt-vs-reviving-office-of-the-independent-counsel/412673.md?page=2) [Next page](https://boards.straightdope.com/t/congress-options-inherent-contempt-vs-reviving-office-of-the-independent-counsel/412673.md?page=4)