Separation of Powers: Pushing the Envelope

Frank Askin of Rutgers has a very interesting take on Congressional options in the face of executive non-cooperation in investigations. Here’s his view:

Instead of referring a contempt citation to the U.S. attorney, a house of Congress can order the sergeant-at-arms to take recalcitrant witnesses into custody and have them held until they agree to cooperate — i.e., an order of civil contempt. Technically, the witness could be imprisoned somewhere in the bowels of the Capitol, but historically the sergeant-at-arms has turned defendants over to the custody of the warden of the D.C. jail.

Askin argues that “no law says that indictment and prosecution by the Justice Department is the exclusive means to enforce congressional prerogative,” and describes some fascinating precedents involving the limits of the pardon power. I had always thought of the sergeant-at-arms office as a bit of a relic, but Askin’s piece demonstrates that Congress may well need to expand it in order to deal with an executive branch unwilling to respect the legislature’s inherent powers.

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