Who would’ve ever thought it would come to this? I wrote my Congressman today. Again. Only this time, my letter was a pep talk instructing him to get up and fight. After you read what I wrote, perhaps you’ll feel the same need to play coach as I. (Also, as I’ve a number of lawyer-folk in my local readership, feel free to elaborate or let me know if I failed to hit a mark.)

Representative Tom Price –

Yesterday afternoon, the balance of power shifted drastically between our three branches of government. Did you notice?

Under federal law, a statutory contempt citation by the House or Senate must be submitted to the U.S. attorney for the District of Columbia, “whose duty it shall be to bring the matter before the grand jury for its action.”

And yet, White House officials argued yesterday that your Congress has no power to force a U.S. attorney to pursue contempt charges in cases, such as the prosecutor firings, in which the president has declared that testimony or documents are protected from release by executive privilege.

Now, I understand that a contempt of Congress citation is not Constitutionally guaranteed, as written. It is an implied power, just as executive privilege exists as an implied power for the executive branch. So why is it that the implied power of the executive branch takes precedent over that of your own legislative branch?

Simply stated, if you let this stand, you’ve lost a sizable amount of legislative leverage.

In Anderson v. Dunn, 1821, the legitimacy of contempt of Congress was summarized this way: “The argument [that Congress has not the power to punish for contempt] obviously leads to the total annihilation of the power of the House of Representatives to guard itself from contempts, and leaves it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it. This result is fraught with too much adsurdity not to bring into doubt the soundness of any argument from which it is derived.”

I’ve written to you in the past, calling your attention to subjects upon which we disagree. But Congressman, I need you to seriously consider how you will react in this matter. Because this goes beyond partisanship. Surely, you must understand that any executive allowances you make for this standing President will fall into the hand’s of his successor.

So I ask you, what are you going to do about it? Are you going to stand up for the power your own Congress so rightfully wields?

And if not, why?

Thank you for your time,

Thomas L. Strickland
Alpharetta, Georgia

I’ll let you know if I hear anything in reply. A bit of a softball, this letter? Perhaps. I could’ve just as easily taken the “If you do nothing, I’ll never vote Republican again” approach. But considering the fact that I haven’t felt the least bit Republican since 1988 — looking at Dukakis, who can blame me? — this seemed like the better direction.

If you’re a bit lost about this whole executive privilege thing, catch up …

• “Bush’s magical shield from criminal prosecution” (Glenn Greenwald, Salon)
• Q&A with Professor Mark Rozell on Executive Privilege (WaPo)
• “Why the U.S. Attorney Will Not Prosecute Harriet Miers” (Marty Lederman, balkin.com)
• “A Republic, If You Can Keep It” (Scott Horton, harpers.org)