The House of Representatives' Contempt Citation Against White House Officials: Why the U.S. District Court for the District of Columbia Should Opt for En Banc Review

By CARL TOBIAS

Friday, Mar. 28, 2008

On March 10, the United States House of Representatives attempted to enforce its contempt of Congress citation against upper-echelon White House officials in court. The basis for the citation was that the officials had asserted Executive Privilege to resist congressional subpoenas that had sought information on the controversial dismissals of numerous U.S. Attorneys when Alberto Gonzales was the U.S. Attorney General.

To enforce its subpoenas, the House filed suit in the U.S. District Court for the District of Columbia. It asked the Court for a declaratory judgment that the officers must comply with the subpoenas. In this column, I suggest that the Court deploy the highly-effective, but rarely-used procedure of sitting en banc - that is, with all 16 judges of the court on the panel -- to resolve this controversial dispute, which pits the Legislative Branch against the Executive Branch.

How the Contempt Citation Grew Out of the Controversy Over U.S. Attorneys' Dismissal

Over the last year, the House and the Senate have carefully investigated why the Bush Administration dismissed nine U.S. Attorneys, during the time when Gonzales was U.S. Attorney General. Each House of Congress has sought information from Executive officials who know about the terminations. When Congress learned of possible White House involvement, it subpoenaed testimony and documents from Chief of Staff Joshua Bolten and former White House Counsel Harriet Miers.

With due respect for the Executive's prerogatives, such as the need for confidential, frank communications between the president and his staff, both Houses have exercised great caution in seeking the testimony and documents. For instance, each Judiciary Committee Chair has submitted many requests to Bolten and Miers seeking voluntary compliance, and each granted the White House multiple extensions of its time to respond. However, President Bush has persisted in ordering Bolten and Miers to assert Executive Privilege, rather than comply with the subpoenas.

Finally, last month, the House of Representatives passed resolutions empowering the leadership to seek judicial enforcement of contempt of Congress citations against Bolten and Miers. One resolution authorized a request that the Attorney General refer the matter to the U.S. Attorney for the District of Columbia. When House Speaker Nancy Pelosi (D-Cal.) lodged that request with current Attorney General Michael Mukasey, he promptly rejected it - again, because the president was asserting Executive Privilege.

A second resolution authorized the pursuit of a declaratory judgment action in the U.S. District Court for the District of Columbia. Three weeks ago, the House initiated that very litigation.

Why the U.S. District Court for the District of Columbia Should Hear the Case En Banc

At the U.S. District Court for the District of Columbia, the case was assigned to Judge John Bates. However, this is no ordinary litigation. Rather, it is a critical, sensitive controversy that implicates conflicts between Congress's legislative power and the President's executive authority. Accordingly, Judge Bates should now refer the suit over to his colleagues, and all 16 judges of the district court, including Judge Bates, should sit en banc to resolve this highly significant issue of constitutional dimension. Both the magnitude and nature of the case counsel en banc review.

The court should hear this case en banc partly because of the suit's compelling public importance. The en banc mechanism has concomitantly proved efficacious in treating analogous crucial, delicate questions, such as the constitutionality of state supreme court decisions, mainly because 16 judges with diverse views and strengths can address such significant issues with greater collective wisdom and authority than a single judge.

The federal judiciary depended most substantially on the procedure when it resolved challenges to the U.S. Sentencing Guidelines' constitutionality in the late 1980s. At that time, federal judicial districts around the nation sat en banc to decide many sentencing guideline cases effectively. The House suit, like these cases, almost exclusively involves legal questions, so that it avoids the difficulty that would be posed if 16 judges had to find the facts.

If the D.C. District Court decides to follow this course, it may invoke the en banc procedure in a relatively straightforward manner. Although the U.S. Code does not expressly prescribe en banc sittings, district courts have found that authority to exist by clear implication at least 70 times. It is also quite clear how the power can be exercised. The federal judicial districts have generally instituted the en banc process by a majority vote of the entire court, including judges on senior status (who typically hear fewer cases). All members have participated, the full panel has been bound by the decision reached, and written dissents from the ruling of the majority of district judges have been permitted.

In the subpoena/executive power case, the U.S. District Court for the District of Columbia, sitting en banc, should entertain briefing and oral argument on relevant legal issues. The questions will doubtless encompass justiciability issues, such as standing to sue and political question, as well as the substantive issue of which branch should prevail in the clash between Congress's legislative authority and White House executive power.

In sum, the en banc approach is best because the issue of whether the House of Representatives may enforce its contempt citation against high-level White House officials is of great constitutional import. The efficacious, but infrequently-deployed, technique of en banc consideration should enable the Court to resolve felicitously this pressing, sensitive interbranch dispute.


Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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