Law and Order: Presidential Perfidy and the Crime Busting House Unit

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Newsweek has spoken, and, apparently, U.S. Representative Anna Paulina Luna’s (R-FL) plan to exercise “inherent Congressional contempt” powers is to be “mocked.”  


Florida Republican Rep. Anna Paulina Luna has been the target of online mockery Sunday after proposing an unusual plan to take Attorney General Merrick Garland into custody.  During an appearance on Fox News’ Sunday Morning Futures with host Maria Bartiromo, Luna outlined her quest to use a little-known provision, last employed in the “early 1900s,” to enforce a Contempt of Congress resolution against Garland. The resolution, passed by the House on Wednesday, stems from Garland’s refusal to comply with a congressional subpoena demanding audio recordings of President Joe Biden’s interview with Special Counsel Robert Hur.

Of course, if you are foolish enough to listen to the left-leaning MSM organ Newsweek regarding Congressional powers, which, in turn, relies on quotes from a prominent Never Trump Republican and a Democrat partisan activist, then you certainly will believe their left-wing propaganda.

However, Newsweek is, quite simply, totally wrong. There is nothing unconstitutional or illegal or even ridiculous with the House of Representatives exercising its’ inherent contempt powers on Merrick Garland.  As the Congressional Research Service (CRS), the bipartisan policy experts that do research for the U.S. Congress, has written:

Congress has three formal methods by which it can combat non-compliance with a duly issued subpoena.  First, the long-dormant inherent contempt power permits Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands.  Because the contemnor is generally released once the terms of the subpoena are met, inherent contempt serves the purpose of encouraging compliance with a congressional directive… Congress’s inherent contempt power is not specifically granted by the Constitution but is considered necessary to investigate and legislate effectively.  The validity of the inherent contempt power was upheld in the early Supreme Court decision in Anderson v. Dunn and reiterated in McGrain v. Daugherty.  Under the inherent contempt power the individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned or detained in the Capitol or perhaps elsewhere.


Further, CRS gave an example of how inherent contempt works, coming from Anderson v. Dunn.

In 1818, a Member of the House of Representatives accused Anderson, a non-Member, of trying to bribe him…  The House adopted a resolution pursuant to which the Speaker ordered the Sergeant-at-Arms to arrest Anderson and bring him before the bar of the House (to answer the charge).  When Anderson appeared, the Speaker informed him why he had been brought before the House and asked if he had any requests for assistance in answering the charge.  Anderson stated his requests, and the House granted him counsel, compulsory process for defense witnesses, and a copy, of the accusatory letter.  Anderson called his witnesses; the House heard and questioned them and him.  It then passed a resolution finding him guilty of contempt and directing the Speaker to reprimand him and then to discharge him from custody.  The pattern was thereby established of attachment by the Sergeant-at-Arms; appearance before the bar; provision for specification of charges, identification of the accuser, compulsory process, counsel, and a hearing; determination of guilt; imposition of penalty.

There is judicial review for the process of inherent contempt – the person targeted may issue a writ of habeas corpus, and the issues decided by the court would “be limited to (a) whether the House or Senate acted in a manner within its jurisdiction, and (b) whether the contempt proceedings complied with minimum due process standards.”  Importantly, inherent contempt does not require the cooperation or assistance of either the executive or judicial branches, with both the House or Senate, on their own, being able to conduct summary proceedings and cite the offender for contempt.  A limitation is that imprisonment cannot extend beyond the end of the current session of Congress.  The process has not been used since 1935 (wrong again, Newsweek).  Although the majority of the inherent contempt actions by both the House and the Senate were conducted via trial at the bar of the full body, there is historical evidence to support the notion that Congress may establish committees to handle the trial instead.  


Let’s not forget the relevant facts of this case.  Special Counsel Robert Hur interviewed President Joe Biden to question him about Biden’s possession of classified information prior to becoming President (in other words, before Biden had the power to declassify the information).  Biden had loads of classified documents, including some from his time in the U.S. Senate (as a former staffer, I have no idea how he removed these documents from the SCIF).  After this interview, Hur recommended that the Department of Justice, led by Garland, not prosecute Biden because Biden was an “elderly man with a poor memory”, and thus a jury would be unlikely to convict Biden.  After pressure was applied, the transcript was eventually released, and it was not flattering.  Attorney General Garland, however, refused to allow the DOJ to release the audio version of the interview, with the Biden administration making a neither “legally nor practically sensible” assertion of executive privilege.  

The Justice Department was later forced to reveal that the transcript was altered with various words removed and significant “clean-up” work having been done to it, which is a violation of the Presidential Records Act.  The House subpoenaed Garland, but he still refused to produce the audio, leading the House to hold him in contempt.  But the DOJ has refused to prosecute Garland for contempt, despite prosecuting and jailing Republican advisors to President Trump, like Steve Bannon and Pete Navarro, under very similar situations.  The Hur interview transcript, and the audio version of it, are very important because they are part of an official record related to an ongoing criminal investigation.  


Using inherent contempt on Garland is also a politically smart decision.  The GOP wants to have this debate about the Hur audio interview.  Garland has no constitutional or legal leg to stand on, and any objective observer is going to immediately realize he and the DOJ are just trying to protect Joe Biden, presumably from being embarrassed for being senile, although possibly to protect him from an actual criminal prosecution. 

Either way, Joe Biden has no right to bar the American voters from learning the truth.

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