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Josh Kaplan of Miami, FL, asks:
Is the move to cite the attorney general for contempt justifiable, or are the congressional Republicans playing partisan politics?
Michael Carvin,
former Justice Department official during the Reagan administration, responds:
Congress is understandably frustrated by the attorney general's apparently unsupportable obstruction of appointing an independent counsel. They believe they have an important oversight role and clearly are following the precedent established by Democratic-controlled Congresses. For example, in Iran-Contra, Attorney General Meese was forced to disclose internal communications on his investigation, leading to the appointment of an independent counsel.
Professor Doug Kmiec of Pepperdine Law School responds:
It is somewhat partisan, of course. What isn't in Congress -- on both
sides. Nevertheless, the House Reform Committee does have oversight
responsibility, and Ms. Reno has all the appearance of disregarding her
legal duty. Contempt may be the only medicine, short of impeachment of the
Attorney General, that will make the point. After all, the basis for
contempt did not occur overnight. It followed months of back and forthing
with no adequate explanation for why the independent counsel statute was
being avoided in this matter. If the Democrats don't want an independent
counsel, or they want crimes investigated by the Department of Justice
again, the solution is to repeal the independent counsel statute altogether,
or at least seriously reform its flaws, not defend an Attorney General's
unilateral repeal of a statute in a particular matter.
It is unlikely, of course, that the full house will agree with the contempt;
or, even if they do, that the Department of Justice will have any success
prosecuting its own head in a court of law. Courts tend to view these
contempts as "political questions" and they cajole the parties into going
back and trying for some accommodation -- like a partial or redacted
disclosure of materials.
If all else fails, look for Congress to legislate greater restrictions on
the Department in its next budget cycle.
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