Why Congress has the power to make arrests.

The law, lawyers, and the court.
April 26 2007 4:06 PM

House Arrest

Congress, go get Condi, Karl, and Monica yourself!

Condoleezza Rice. Click image to expand.
Secretary of State Condoleezza Rice 

On Wednesday, the House oversight committee voted to subpoena testimony from Secretary of State Condoleezza Rice as part of its inquiry into the Bush administration's claims that Iraq sought to buy uranium from Niger. Today, Rice responded by saying she would reply by letter only—effectively refusing to comply with the subpoena. This, of course, is only the latest in a series of subpoena skirmishes between Congress and the White House. In the wake of the U.S. attorney scandals, congressional committees have issued a subpoena to the Republican National Committee for e-mails sent by White House staffers using RNC accounts and authorized subpoenas for Karl Rove, Harriet Miers, and this week, former Department of Justice aide Monica Goodling and Rove aide Sara Taylor. The administration is balking, invoking executive privilege on all fronts.

In the real world, this is all politics, and political compromise will probably save Rice and the rest from, say, whiling away the month of May in the slammer. In the sort of world that lawyers like to dream of, however, refusal to obey a congressional subpoena can indeed lead to charges of contempt of Congress. From there, we can treat ourselves to a tour of a seldom-used congressional power: the power of each house to use its own sergeant-at-arms to enforce its own rules and privileges. It sounds quaint, but just think: Congress doesn't need a U.S. marshal to knock on Condi's door—it can arrest her all by itself.

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In 1543, George Ferrers, a member of the House of Commons from Plymouth, England, was arrested for debt while on his way to Parliament. Members of Parliament (and members of Congress) are protected from arrest for debt during the sitting of the legislature, so the House of Commons sent its sergeant to demand Ferrers' release. The jailers holding Ferrers impolitely declined, and a melee ensued: As one 16th-century account puts it, the sergeant's assistant was "stroken down." Outdone, the sergeant retreated to the House of Commons, which suspended all other business to tend to this challenge to parliamentary power. The lord chancellor, a Crown official, offered to provide the sergeant with a royal writ for Ferrers' release. But the House turned him down, insisting that the sergeant should act "without writ, only by shew of his mace"—that is, on the authority of the House alone. The sergeant was sent back to the jail, more heavily armed this time, and the jailers caved in and handed over Ferrers.

This wasn't an isolated arrest by the legislature. The history of the British Parliament is full of cases in which the House of Commons has enforced its rules with the help of its sergeant, or the House of Lords has done so using its ominously named equivalent, the "Gentleman Usher of the Black Rod." To leave the privileges of Parliament in the hands of the executive—that is, the Crown—was to surrender far too much power.

The United States has its own historical antecedents. In 1832, Sam Houston (that Sam Houston), then a private citizen, assaulted Ohio Rep. William Stanbery as Stanbery was walking home in Washington, D.C. According to Stanbery, Houston was indignant over something that Stanbery had said in a floor debate. Stanbery reported the assault to the House, which ordered its sergeant-at-arms to "take in custody, wherever to be found, the body of Samuel Houston; and the same in his custody to keep, subject to the further order and direction of this House." Houston was arrested and brought before the House, where he was represented by Francis Scott Key (that Francis Scott Key). After a monthlong trial, he was reprimanded and sent on his way.

Alas, it has been quite some time since a house of Congress sent its sergeant-at-arms trolling the streets of Washington for wrongdoers. Under current federal law, it's a criminal offense to refuse to appear before Congress when summoned or to commit perjury before a congressional committee. Such offenders are supposed to be prosecuted by U.S. attorneys. But that's exactly the problem with regard to the DoJ-related subpoenas—the people getting the subpoenas and the people enforcing them all work for the same boss.

Federal law can allow the executive to punish disobedience to Congress, but it cannot take away Congress' own punishment powers. Back in 1833, Justice Joseph Story said those powers were utterly necessary "for either house to perform its constitutional functions," a conclusion also reached by the Supreme Court as a whole in 1821. Once a house of Congress finds someone in contempt, it can order its sergeant to go after him. It's really that simple.

And that's as it should be: As the House of Commons understood when it nabbed Ferrers on its own, and as Congress understood when it scooped up Sam Houston, accepting help from the executive means subordination to the executive. The legislature can least afford this when it is the executive that is under investigation. The sergeants of the houses of Congress already have all the power they need. Rove, Rice, Miers—Congress, go get 'em!

Josh Chafetz is assistant professor at Cornell Law School and the author of Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions.

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