Friday, July 06, 2007

What Would Happen if the Administration Continues to Defy the Subpoenas?

Marty Lederman

The House and Senate have issued subpoenas in the U.S. Attorney removal investigation -- and are likely to issue more with respect to the NSA wiretapping matter. The President is asserting executive privilege, and refuses to comply. What next? Well, if the Administration (or a former official, such as Harriet Miers) does not cooperate, one or both Houses can vote to hold the recalcitrant officials in contempt of Congress. Senator Leahy and Rep. Conyers have informed the White House Counsel that if there is no compliance by this coming Monday at 10:00 a.m., the legislative chambers will rule on the privilege claims "and consider whether the White House is in contempt of Congress."

And what then?

Here's what Senator Leahy had to say about enforcement, from last Sunday's Meet the Press:

MR. RUSSERT: You have asked the White House and others to respond to your subpoenas. They are now invoking executive privilege, and you said this: "We will take the necessary steps to enforce our subpoenas backed by the full force of law so that Congress and the public can get to the truth behind this matter." * * * * What happens if the White House just does not respond to these subpoenas? They invoke executive privilege, it's take it or leave it. What do you do?

SEN. LEAHY: Well, then, then, of course, you have to go to the next step, determine whether they have a legitimate claim of executive privilege. Based on the court cases, it appears they do not. . . . [I]f they do not have a basis for it, then you have a vote on a contempt citation, and it goes to the U.S. Attorney for prosecution. I would hope that's not necessary.

MR. RUSSERT: Are you sure the U.S. Attorney would prosecute?

SEN. LEAHY: Well, I think it'd be very difficult for him not to. But . . . since the debacle of the Nixon time and even in President's Nixon’s presidency, every single President, rather than do that, Republican or Democratic, has worked out a way to get [Congress] this information.
Senator Leahy is correct in one important respect: In almost every single historical case where a House of Congress has issued a contempt citation or threatened to do so, that has prompted the Executive branch to further "accommodate" the legislature by providing information sufficient to allow Congress to proceed with its investigation. (One possible exception, from the Nixon Administration, was Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974), in which the Administration successfully resisted a Senate subpoena.)

One might hope that the prospect of its officials being held in contempt would cause this Administration to do the same -- especially because the contempt is a crime punishable by up to a year in prison (see 2 U.S.C. 192), and because, as the Acting Attorney General has written, the court of appeals "has recognized that each branch has a 'constitutional mandate to seek optimal accommodation of each other's legitimate interests" (quoting U.S. v. AT&T, 567 F.2d at 127). But it would not surprise many observers if this Administration breaks the mold and refuses to further accommodate Congress -- particularly because it has already taken the view that Congress does not have any "legitimate interests" in determining why the President effectively dismissed the U.S. Attorneys. (I've previously explained that I think this view is wrong -- but I doubt I'm going to convince DOJ, let alone David Addington and the President.)

So let's say the two branches are at loggerheads after a contempt citation is issued. What then?

Legally, there are at least three options for Congress.

First, there's the remedy that Senator Leahy invokes: The House or Senate that has voted for contempt can certify that fact to the United States Attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action." 2 U.S.C. 194. The problem with this option is that the (Acting) Attorney General will almost certainly instruct the U.S. Attorney not to prosecute the action, notwithstanding the "duty" imposed by statute. How can the Attorney General issue such an order? Well, when a similar crisis arose in the mid-1980's (relating to contempt against EPA Administrator Anne Gorsuch), OLC issued an Opinion concluding that the statute is unconstitutional to the extent it requires a U.S. Attorney to prosecute a contempt action where the noncompliance is based on the President's assertion of executive privilege: In OLC's view, a U.S. Attorney thus "is not required to refer a contempt citation in these circumstances to a grand jury or otherwise to prosecute an Executive Branch official who is carrying out the President's [executive privilege] instruction." 8 Op. O.L.C. 101, 102.

This is a contestable conclusion. (There are many things about the 1984 OLC Opinion with which I disagree -- but whether the ultimate conclusion is correct is a tricky question.) Be that as it may, it's fairly certain that the Bush Administration will not repudiate it. Therefore, it is virtually inconceivable there will ever be any contempt prosecution brought by the U.S. Attorney. (The Administration would comply with the subpoenas long before it would authorize such prosecutions.)

Second, Congress can itself prosecute the contumacious official(s) to coerce them to comply -- a power that the Supreme Court has affirmed. See Jurney v. MacCracken, 294 U.S. 125 (1935); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821); see also Groppi v. Leslie, 404 U.S. 496, 499 (1972). As Justice Scalia explained in Young v. U.S. ex rel. Vuitton et Fils, S.A., 481 U.S. at 820, this legislative prosecution authority is a constitutional anomaly of sorts -- a "limited power of self-defense" for Congress, permissible because "any other course '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'" (quoting Anderson).

How would such self-help work? Well, believe it or not, the Sergeant-at-Arms of the Senate or House would personally arrest the officials and detain them in the Capitol jail or guardhouse (assuming such a facility still exists). (One of my students last semester noticed this gem on the website of the current Senate Sergeant-at-Arms, Terrance Gainer: "The Sergeant at Arms is authorized to arrest and detain any person violating Senate rules, including the President of the United States." We wondered in class: What could possibly have motivated Mr. Gainer or his staff to post that provocation?) The person would then be tried by the legislative house and, if found guilty (of civil contempt), could be detained until compliance with the subpoena or until the session of Congress ends, Anderson, 19 U.S. at 231, whichever comes first.

Congress has not invoked this authority since 1935 and, as far as I know, has never used it against a current or former government official. (The closest case was probably the contempt at issue in McGrain v. Daugherty, 273 U.S. 135 (1927), which was imposed against Mally Daugherty, a bank president and the brother of resigned and disgraced Attorney General Harry Daugherty, who Congress was investigating in connection with the Teapot Dome scandal.)

Thus, this option is unlikely . . . but not inconceivable, if Congress is willing to break relatively new ground, and to conduct a contempt trial.

Third, and most likely, Congress could file a civil action in federal court seeking declaratory relief, or an injunction requiring enforcement of its subpoena. Although I'm not aware of any statute that expressly grants the courts jurisdiction over such suits, both Congress and the Executive branch have filed suits of this sort in the past, asserting federal question jurisdiction under 28 U.S.C. 1331. The courts in such cases have not expressly reach edthe question of whether section 1331 jurisdiction is apposite. See Senate Select Committee on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51 (D.D.C. 1973) (holding that the $10,000 jurisdictional amount in controversy requirement then in the statute (it's since been eliminated) was not satisfied); United States v. House of Representatives, 556 F. Supp. 150 (D.D.C. 1983) (in which DOJ took the position that the controversy arose under the Constitution and laws of the United States, but the court did not reach the merits -- it dismissed the suit "until all possibilities for settlement have been exhausted"; and DOJ did not appeal).

Alternatively, if a contempt citation is issued against a former government official, such as Harriet Miers, she might initiate litigation in federal court seeking to quash the citation or have it declared unlawful. Or, in the unlikely event that it appears a former official such as Miers is inclined to comply with the subpoena, the U.S. itself might try to go to court to enjoin such compliance. See U.S. v. AT&T, 567 F.2d 121 (D.C. Cir. 1977).

And what would a court do if the privilege issue came before it? More than likely, the court would in the first instance try to persuade or coerce the parties to accommodate one another further, and would refuse to finally resolve the merits until there were a real, intractable stalemate. Judge Leventhal's conclusion from the 1977 AT&T case cited above is the sort of thing we might expect:
Negotiation has narrowed but not bridged the gap between the parties. Accordingly, we must adopt a somewhat more traditional approach. We begin by deciding that complete judicial abstention on political question grounds is not warranted. In addressing the merits, however, we continue to move cautiously. Taking full account of the negotiating positions, we have chartered the course that we think is most likely to accommodate the substantial needs of the parties. Doubtless, neither will be satisfied. But in our view there is good reason to believe that the procedure set forth in this opinion will prove feasible in practice, with such adjustments and refinements as may be evolved by the parties and the district court. What we decide is only that, so long as this procedure gives promise of satisfying the substantial needs of both parties, this court may appropriately continue to refrain from a decision upholding either of the claims of absolute authority. Should the parties test our approach and encounter difficulties, we may have to determine whether further relief is warranted. In that effort we will be aided by the experience of the parties.

Very few cases involving a congressional/executive privilege dispute have proceeded all the way to a judicial resolution on the merits -- the accommodation system, with prodding from the courts, has almost invariably resulted in a compromise, however imperfect to both sides. (NOTE: I'm not saying that the courts should necessarily avoid reaching the merits -- only that that is the likely result.)


In all this talk of the government refusing to prosecute, it ignores the fact that the facts survive past the 2008 election.

I find it interesting that the three options listed are distributed evenly across the three branches of government: executive, legislative, and judicial. I doubt the Democrats slim majority is sufficient to carry procedure motions needed to implement the legislative option (particularly in the Senate). The executive option would almost certainly get stonewalled. The judicial option . . . well, I would not be surprised to see this occur. And if the process is lengthy, I would not be surprised to see it be used as an electoral weapon against Republicans, particularly if the conflict stretches past February (when the primary season decision will be made). In which case electoral dynamics will become increasingly intertwined with this. Given that the firing of prosecutors appears to have been politically motivated, that would be ironic indeed.

I'm slightly surprised that you didn't include a fourth option, impeachment. I'm on record as opposing attempts to impeach the President, but I confess that I'm beginning to saver, at least slightly, following the Libby pardon. That is, although I don't agree with Gerald Ford that an impeachable offense is just whatever the House says it is, I do believe that something called "systematic violation of the rule of law and accountability" could legitimately be thought to be impeachable. Unfortunately, I doubt that many judiciary-oriented lawyers would agree, and I continue to believe that the public at large would probably view an impeachment effort as "mere politics." But, as we go through the possibilities, it seems to me valuable to include it lest we concede, without further discussion, that the President isn't moving closer and closer to legitimately impeachable offenses.

Perhaps this is why the Democrats dont't dare impeach; they know they cannot enforce the results.

It's not just the AGs, but the appointed judges. Why would they have been exempt from the BushCo vetting process?

The administration will defy the subpoenas and almost certainly get away with it.

This government has lost its legitimacy. Humpty Dumpty will not go back together again.

It's no wonder Daddy Bushit has been breaking down into tears in public: he knows his son has disgraced the office, the country, and his holier-than-thou family.

And, there's now no chance Jeb will get to be president.

I would dearly LOVE to watch the Senate Sergeant-at-Arms attempt to arrest the president of the United States. But I wouldn't want to BE the Sergeant-at-Arms attempting it.

I would dearly LOVE to watch the Senate Sergeant-at-Arms to attempt to arrest the President of the United States. But I wouldn't want to BE the S-o-A trying it.

What about a Special Prosecutor? Can Congress empower one?

Actually, there is a statute that confers juridiction over civil suits to enforce Senate subpoenas (28 USC 1365), but it contains the following exception: " This section shall not apply to an
action to enforce, to secure a declaratory judgment concerning the
validity of, or to prevent a threatened refusal to comply with, any subpena or order issued to an officer or employee of the executive branch of the Federal Government acting within his or her official capacity, except that this section shall apply if the refusal to comply is based on the assertion of a personal privilege or objection and is not based on a governmental privilege or objection
the assertion of which has been authorized by the executive branch
of the Federal Government."

One could argue that this exception does not apply where witnesses are no longer officers or employees of the executive branch.

It's blindingly obvious that the time for IMPEACHMENT is NOW.

Frankly, I think most Republicans who want to run against Congressional Democrats in 2008 would LOVE this to drag on until then.

"The Democrats were voted into office in 2006 promising to address all kinds of issues. They've passed none of them, and spend all their time investigating the President and sueing those who don't cooperate. Is this the kind of leadership America wants?"

Professor Levinson,

I agree with your view that impeachment is appropriate for acts that undermine the Constitutional order and/or the rule of law. I share your assessment about the views of "judiciary-oriented lawyers," based on my own conversations with people. I appreciate your willingness to begin considering impeachment as a remedy.

However, I disagree with your statement that the American people would see an impeachment effort as "mere politics." On the contrary, a July 10, 2007 American Research Group poll found that 45% of Americans favor the House of Representatives beginning impeachment proceedings against President Bush, and 54% of Americans favor the House of Representatives beginning impeachment proceedings against Vice President Cheney. These numbers are not inconsistent with similar (albeit not as directly worded) polls going back more than a year, including a 2006 Newsweek poll that found that 51% of Americans thought impeachment should be a "priority." It's my view that Americans have a better sense of these things than they often get credit for, even if the population as a whole is slow to anger.

In any event, the American Research Group poll can be found here:

The president has commited no impeachable offence. There Are no real crimes that he has been accused of committing. Many of his political enemies try to make actions made by him or someone in his administration sound like crimes. They lie about the facts while ignoring and denying the truth. After hearing the lies repeated by the media often enough many people eventualy begin to believe them.

Impeaching our president in this time of war is the worst thing that could possibly happen to the free world. I would agree that so far the war has been missmanaged but, this does not mean that it is the wrong war. We should be fighting this war as we have fought all wars that we have won in the past. All out and with overwhelming force. Destroying and demoralizing the enemy should be our number one goal. Protecting civilians should be a secondary consideration because in many cases the so called civilian would be an enemy if he wasn't facing an M-16.

My intention was not to make an argument for the war in Iraq but to show that the calls for the impeachment of the president are specious.

If the House of Representitives truely thought president or any of his administration had commited an offence that was impeachable they would already have it before the Senate for trial.

They (Pres. Bush's political enemeies) lie to us claiming the president or vice president should be removed from office without giving us any evidence of a real crime. They invent crimes to destroy administration officials. They tell us that they support our troops while working to make it harder for our soldiers to do the duty that they volunteered for. They make deals with our enemies. They tell the world over and over again that we have lost the war and we are going to give up - as soon as they gain power.

In short neither President Bush nor Vice President Cheney will be impeached. The people with the power to do it know that they have no grounds to do so.

God Bless America

impeachment? can't any of you count. check the math- not enough votes in the senate: 2/3 needed.

those loyal repub. robots would never vote against the Dunce Leader.

so you can forget about ousted bush from office.

There is another way to get the issue before the courts:
From Wikipedia, the free encyclopedia

A writ of mandamus or simply mandamus, which means "we command" in Latin, is the name of one of the prerogative writs in the common law, and is issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly.[1]

Mandamus is a judicial remedy which is in the form of an order from a superior court to any government, subordinate court, corporation or public authority to do or forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as the case may be, and which is in the nature of public duty and in certain cases of a statutory duty.[2] It cannot be issued to compel an authority to do something against statutory provision.

Mandamus can be supplemented by the statement that it is not only the command to do but also a command not to do a particular thing against the rights of the petitioner. Mandamus is supplemented by legal rights. It must be a judicially enforceable and legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when he is denied a legal right by someone who has a legal duty to do something and abstains from doing it.

The applicant pleading for the writ of mandamus to be enforced should be able to show that he has a legal right to compel the respondent to do or refrain from doing the specific act. The duty sought to be enforced must have two qualities:[3]

It must be a duty of public nature
The duty must be imperative and should not be discretionary.
Normally, a writ of mandamus does not issue to, or an order in the nature of mandamus is not made against, the private individual. It is not necessary that the person or the authority on whom the statutory duty is imposed be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorizing their undertakings. A mandamus would be equally applicable for a company constituted by a statute for the purposes of fulfilling public responsibilities. The court to which the application for the issue of mandamus is made will not constitute itself a court of appeal from the decision of the administrative authority and will not examine the correctness or otherwise of a decision on merits.[4] The exercise of administrative discretion is not interfered upon by the court, but it will do so if there has been an illegal exercise of the discretion. There is an illegal exercise of discretion where:

The order is made without, or in excess of jurisdiction
The order made is mala fide, or
The authority is influenced by extraneous consideration.
Contents [hide]
1 History of Mandamus
2 Purpose of Mandamus
3 Kinds of Mandamus
4 Mandamus in the United States
4.1 In general
4.2 Federal courts
4.3 State courts
5 Mandamus in England and Wales
6 Mandamus in India
7 References

[edit] History of Mandamus
The writ of mandamus is of a very ancient origin, dating back at the latest to the times of Edward II.[5] It seems originally to have been one of that large classes of writs by which the Sovereign of England directed the performance of any desired act by his subjects, the word "missive" in such writs and letters, having given rise to the present name of the writ. These letters, missives or mandates, to which the generic term mandamus was applied, were in no sense judicial writs but were merely commands issuing directly from the sovereign to the subject without the intervention of the court. The writ in the shape of these commands, however, became obsolete at a very early stage and gradually it came to be confined to the judicial writ issued by the King's Bench which has by steady growth developed into the writ of mandamus, which is, in general, a command issuing in the King's name from the Court of King's bench and directed to any person, corporation or inferior court of jurisdiction within the King's Dominions requiring them to do some particular thing therein specified which appertains to their office and duty, and which the Court of King's bench has previously determined, or at least supposes to be a consonant to right and justice. It is high prerogative writ of a most extensive remedial nature... And issues in all cases where a party has a right to have anything done, and hath no other specific means of compelling its performance.[6]

[edit] Purpose of Mandamus
The purpose of mandamus is to remedy defects of justice. It lies in the cases where there is a specific right but no specific legal remedy for enforcing that right. It also lies in cases where there is an alternative remedy but the mode of redress is less convenient, less beneficial or less effectual. Generally, it is not available in anticipation of any injury except when the petitioner is likely to be affected by an official act in contravention of a statutory duty or where an illegal or unconstitutional order is made. The grant of mandamus is a matter for the discretion of the court, the exercise of which is governed by well-settled principles.[7]

Mandamus, being a discretionary remedy, the application for that must be made in good faith and not for indirect purposes. Acquiescence cannot, however, bar the issue of mandamus. The petitioner must, of course, satisfy the Court that he has the legal right to the performance of the legal duty as distinct from mere discretion of authority.[8]

A mandamus is normally issued when an officer or an authority by compulsion of statute is required to perform a duty and which despite demand in writing has not been performed. In no other case will a writ of mandamus issue unless it be to quash an illegal order.

[edit] Kinds of Mandamus
There are essentially three kinds of Mandamus:

Alternative Mandamus: A mandamus issued upon the first application for relief, commanding the defendant either to perform the act demanded or to appear before the court at a specified time to show cause for not performing it.
Peremptory Mandamus: An absolute and unqualified command to the defendant to do the act in question. It is issued when the defendant defaults on, or fails to show sufficient cause in answer to, an alternative mandamus.[9] [10]
Continuing Mandamus: A Mandamus issued to a lower authority in general public interest asking the officer or the authority to perform its tasks expeditiously for an unstipulated period of time for preventing miscarriage of justice.[11]

[edit] Mandamus in the United States

[edit] In general
In the administrative law context in the United States, the requirement that mandamus can be used only to compel a ministerial act has largely been abandoned. By statute or by judicial expansion of the writ of mandamus in most of the U.S. states, acts of administrative agencies are now subject to judicial review for abuse of discretion. Judicial review of agencies of the United States federal government for abuse of discretion is authorized by the Administrative Procedure Act.

[edit] Federal courts
The power of the Supreme Court of the United States to issue a writ of mandamus outside its appellate jurisdiction was the controversy that led the Court to delve into the much more significant issue of judicial review in the famed case of Marbury v. Madison. In modern practice, the Court has effectively abolished the issuance of mandamus and other prerogative writs although it theoretically retains the power to do so.

In the context of mandamus from a United States Court of Appeals to a United States District Court, the Supreme Court has ruled that the appellate courts have discretion to issue mandamus to control an abuse of discretion by the lower court in unusual circumstances, where there is a compelling reason not to wait for an appeal from a final judgment. This discretion is exercised very sparingly.

The authority of the United States district courts to issue mandamus has been expressly abrogated by Rule 81(b) of the Federal Rules of Civil Procedure, but relief in the nature of mandamus can be had by other remedies provided for in the Rules, where provided by statute, or by use of the District Court's equitable powers.

[edit] State courts
In some state-court systems, however, mandamus has evolved into a general procedure for discretionary appeals from nonfinal trial-court decisions.

In some U.S. states, including California, the writ is now called mandate instead of mandamus, and may be issued by any level of the state court system to any lower court or to any government official. It is still common for Californians to bring "taxpayer actions" against public officials for wasting public funds through mismanagement of a government agency, where the relief sought is a writ of mandate compelling the official to stop wasting money and fulfill his duty to protect the public fisc.

Other states, including New York, have replaced mandamus (as well as the other prerogative writs) with statutory procedures. In New York, this is known as an Article 78 review after the civil procedure law provision that created the statutory procedure.

[edit] Mandamus in England and Wales
Originally known as a 'writ of mandamus' and more recently as an 'order of mandamus' , this procedure was renamed by The Civil Procedure (Modification of Supreme Court Act 1981) Order 2004 to become a 'mandatory order' .

[edit] Mandamus in India
The sine qua non for mandamus is the existence of a statutory public duty incumbent upon the person or body against whom the mandamus is sought. There must equally co-exist a corresponding right in the petitioner entitling him to claim the enforcement of such public duty. These two preconditions form the foundation for the issue of mandamus. The primary scope and function of mandamus is to "command" and "execute" rather than to "enquire" and "adjudicate". It cannot be issued to change the decision of a body so as to suit the petitioner. Obligations which are not of statutory nature cannot be enfoced by mandamus.[12]

The writ petition is not maintainable when a remedy provided for under Code of Civil Procedure is the available and therefore, the High Court cannot entertain writ petitions for mandamus and pay an enhanced compensation account as was demonstrated in the instant case. Here, though compensation was enhanced by the order dated 13 May 1996, the Government had failed to deposit the amount within reasonable time which compelled the claimants to file writ petitioner for a mandamus since the requisite time. The petitioners were directed to approach the executing Court for appropriate relief.[13]

[edit] References
^ Bryan A Garner, Black's Law Dictionary, p. 980, 8th Ed., St. Paul, USA, 2004
^ A.T. Markose: Judicial Control of Administrative Action in India, p.364
^ RK Choudhary's Law of Writs; Mandamus
^ Vice-chancellor, Utkal University v. SK Ghosh, AIR 1954 SC 217: 1954 SCR 883
^ Godiand's case, referred to in Widdrington's case, 1 Lev and R. v. Askew, 4 Burr 2186
^ Blackstone, 3 Com 100: High on Extraordinary Legal Remedies, Sec. 1
^ Gangadhar Narsingdas Agrawal v. Union of India, AIR 1967 Goa 142 (147); Regional Director v. AS Bhangoo, (1969) 73 Cal. WN 267; Megh Nath v. Director, Technical Education, UT Chandigarh, 1990 (1) RSJ 126
^ Basantilal v. Laxminarayan, 1970 MPLJ (Note) 6
^ Legal Dictionary
^ Vineet Narain v. Union of India, AIR 1996 SC 3386
^ R.P. Kapoor v. Delhi Development Authority
^ Government of AP v. Puniparthi Narayana Rajiu, 2002 Andhr. LT. 113 at pp. 113, 114
Retrieved from ""

I believe that there is an other path nobody has mentioned. If Congress sends a contenpt charge to the Asst AG and he refuses to act on it, the House can open Impeachment procedings against the Asst AG.

I'm pretty sure that Impeachment (a Constitutional Power) trumps Excutive Priviledge (an implied right). Thus the Congress has on open legal path to what ever information it desires.

> KCDillon said...
> The president has commited no impeachable offence.

Throughout 2005 and 2006, President George W. Bush repeatedly admitted in public speeches that his Administration was operating a secret domestic wiretap program outside the auspices of the FISA. Eventually, even the Bush Justice Department revolted, and a cadre of senior DOJ employees threatened to resign if the program was re-authorized over their objections. Defiantly, President Bush kept the program operating for more than a week after his own Justice Department informed him that such a program was legally indefensible; indeed, that each wiretap so conducted was and is a felony.

On Sept 6, 2006, in a televised East Room speech, President George W. Bush admitted that the CIA had been operating secret "black" prisons in Europe and elsewhere, and that certain "high-value" detainees had been sent there via extraordinary rendition, and imprisoned for some time.
Jurist coverage
Official White House transcript

Lawrence Wilkerson (Col. US Army ret. and former Chief of Staff to former Secretary of State Colin Powll) has stated that these secret prisons continue to operate, and may still contain thousands of detainees, about whom the Administration allows no information.

Such secret imprisonment is illegal under US law, under existing treaties, and under the Geneva Convention.

Last week, the Bush Administration "instructed" former counsel Harriet Miers to defy a Congressional subpoena by refusing to appear. This instruction itself is a felony violation of US law.

I could go on .

Marty, just a quick note on your observation that

"One of my students last semester noticed this gem on the website of the current Senate Sergeant-at-Arms, Terrance Gainer: 'The Sergeant at Arms is authorized to arrest and detain any person violating Senate rules, including the President of the United States.' We wondered in class: What could possibly have motivated Mr. Gainer or his staff to post that provocation?"

For what it's worth, this tidbit has been on the Sergeant-At-Arms web page since at least 2002. See the Wayback machine at*/
So it presumably isn't a specifically political or partisan "provocation." But that, in a sense, only deepens the mystery of why that bit was inserted. Does it come from the Senate rules? Or Senate lore? Or from dicta in some case? Is this worth further investigation?

dennisthemenace is right on. There are many, many precedents for the use of mandamus, especially in federal law. It's one very effective way to go (assuming that the case doesn't come before another loyal Bushie in the Federal Circuit).

You state, "as far as I know, [Congress] has never used [inherent contempt] against a current or former government official."

In fact, this did happen in the case you cite when inherent contempt was most recently invoked in 1934. William P. MacCracken, Jr. became Assistant Secretary of Commerce for Aeronautics on August 11, 1926, from which he resigned in October, 1929. His arrest arose from a meeting over which MacCracken presided in the Post Office Department. The investigation was targeting Postmaster General Walter Folger Brown.

See this 1934 article from Time

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