“Ambition must be made to counteract ambition,” wrote James Madison in Federalist Paper #51.
The Founders were suspect of government. And so when they mulled ideas about how to form the American government, they strove to make power disparate, strewn across the branches. Madison asserted that this was “essential to the preservation of liberty.”
He wrote that “each department should have a will of its own: and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.” Madison believed that subdividing power in this manner created what he called a “double security” to protect the people.
“The different governments will control each other, at the same time that each will be controlled by itself.”
But Madison was clear that he believed the legislative branch should be the most-powerful area of government. It was ultimately the voice of the people.
Madison fought to inoculate each branch and department of the federal government from the encroachment of others. This helped achieve the goal of checks and balances. But it was only natural there may be an occasion where one branch winds up usurping the power and rights of another one.
Which brings us to the debate over whether the House of Representatives should hold Attorney General Eric Holder in contempt of Congress for failing to provide documents about Fast and Furious, the Mexican firearms sting operation that went awry. An inquiry determined that many of the guns the U.S. freed up contributed to violence near the U.S.-Mexico border. One of the weapons that “walked” was believed to be used to kill Border Patrol Agent Brian Terry.
There’s been a battle cry from House Republicans for lawmakers to vote on a contempt resolution for Holder. They claim the Attorney General is stonewalling and hasn’t coughed up the relevant documents detailing what went wrong with Fast and Furious.
It’s cut and dried to freshman Rep. Dennis Ross (R-FL).
“Nothing short of a contempt citation is good enough from our POV,” said Ross.
Ross joined fellow freshman Reps. Ben Quayle (R-AZ), Trey Gowdy (R-SC), Sandy Adams (R-FL), Tim Griffin (R-AR) and Tom Marino (R-PA) in drafting a letter to the House Republican leadership, demanding a contempt resolution.
The arrogance of evading a congressional investigation for self protection and the protection of cronies insults not only the Terry family but also all those whose lives are endangered by allowing guns to knowingly cross the U.S. border into the hands of dangerous criminals,” the freshmen wrote. “It’s time for the House to formally recognize the obvious – that Attorney General Holder has not and will not cooperate with the legitimate investigation launched by the House Oversight and Government Reform Committee and is therefore in contempt of Congress.”
Of course, this is precisely the type of constitutional conflict that Madison hoped to avoid by diffusing power and granting each part of the government independence. But still, it’s natural that the branches might periodically collide – especially since Madison felt the legislative branch was the first among equals. And some of these conflagrations should be expected anyway as Congress controls the purse strings and has oversight responsibility.
“Contempt of Congress” citations were varied when the republic was in its infancy. For instance in the early 19th Century it moved against newspaper editors who declined to answer Senate questions or published privileged information. An 1821 Supreme Court case upheld the right of Congress to find people in contempt. But when Congress votes to hold someone in “contempt,” it typically refers the resolution to the Department of Justice to determine whether that individual should face any legal consequences.
Congress entertained several high-profile contempt issues from 2007-2009. Democrats controlled both chambers and were determined to find out if the administration of President George W. Bush fired a number of U.S. Attorneys for political reasons.
The House and Senate Judiciary Committees subpoenaed then-Bush adviser Karl Rove. Rove refused to testify and both panels then voted to hold him in contempt. But contempt must be approved by the entire House or Senate. Neither body took the Rove complaint to the next level.
That was not the case with White House Counsel Harriet Miers and White House Chief of Staff Josh Bolten. After Miers and Bolten tried to sidestep Congress, the House voted to hold them both in contempt on Valentine’s Day, 2008. Some Republicans abandoned the House chamber in protest.
The Bush White House contended that neither Miers nor Bolten had to testify and were immune from appearing before Congress to explain the firings.
So all of this pits the legislative branch against the executive branch. And who gets to decide who’s right? The judicial branch.
This is what Madison was talking about in Federalist #51 when he wrote that “different governments will control each other, at the same time that each will be controlled by itself.”
In many respects, this is settled law. The Nixon White House made a similar case about absolute presidential privilege during Watergate. But the Supreme Court decided that President Nixon’s advisers were not exempt.
When the Miers/Bolten case went to court, U.S. District Judge John Bates said there was no ground to excuse Miers from appearing before Congress. Bates also ordered the White House had to fork over all material tied to the dismissal of the U.S. Attorneys. The Bush Administration appealed. But once President Obama was elected, his administration brokered an agreement for Miers and Rove to testify to Congress.
Contempt of Congress resolutions cut to the essence of tension between government departments and branches that Madison wrote about. That’s why it’s a dicey proposition. And even if Congress feels its in the right and not getting what it needs from a president’s administration, a lengthy legal battle usually ensues – even if the House and Senate voted to hold someone in contempt. That’s why these constitutional squabbles are so combustible. And it’s partly why the House Republican leadership is cautious about forging ahead with a contempt resolution for Eric Holder on Fast and Furious.
Late last week, House Speaker John Boehner (R-OH), Majority Leader Eric Cantor (R-VA), Majority Whip Kevin McCarthy (R-CA) and Oversight Committee Chairman Darrell Issa (R-CA) dashed off a missive to Issa. It was clear that the House GOP was frustrated with how Holder’s department responded to Congressional requests for information about Fast and Furious. But the word “contempt” never appears in the brief.
“If necessary, the House will act to fulfill our constitutional obligations in the coming weeks,” warned the letter. It’s unclear what those “constitutional obligations” may be.
It could involve contempt. It could involve a non-binding resolution which raps Holder’s knuckles for not providing Congress the material lawmakers want. It could involve more hearings.
This is a case study of where the ambitions of one branch of government crash headlong with another.
“Ambition must be made to counteract ambition,” wrote Madison. And it’s very tough for one branch of government to tell the other one what to do.