Monday, November 17, 2008

Could the President be held in contempt?

I received this interesting question over the weekend:

QUESTION: Earlier in the course, we discussed how the Supreme Court lacks any ability to enforce its decisions and, therefore, out of a perfectly sensible sense of self-preservation, the justices try to avoid decisions that will create a great deal of conflict with the other arms of government if possible. If the Supreme Court were to hand down a decision, and the president decided to not follow it, could the Court then hold him in contempt and, if so, could the House then impeach him for "high crimes and misdemeanors"? Obviously, this still requires the cooperation of another branch to assist the Court, but could it happen?

ANSWER: The short answer is yes, but there are a few different steps to the relevant analysis. First, could a court (any court) hold the President in contempt? The answer would seem to be yes, as the Court implied in the famous Watergate tapes case, United States v. Nixon. At issue there was whether President Nixon was required to turn over the tapes which plainly revealed that he know of the Watergate break-in and was involved in its cover-up. The Court held that a federal court could order the President to turn over the tapes, and thus implicitly held that the court could hold the President in contempt if he did not. (Whether a sitting President could actually be criminally prosecuted is a different matter, and most people believe that would be unconstitutional.)

Second, could the President be held in contempt by a court for failing to enforce a statute? Conceivably, but this seems exceedingly unlikely. Since a contempt citation against a sitting President would be largely (perhaps entirely) symbolic, there is not much difference between that and an authoritative judgment that the Executive Branch has a binding legal obligation, and he is not following it. In practical effect, they are the same thing.

Finally, could the House initiate impeachment proceedings on this basis? Absolutely. And the charge of failing to follow (or ignoring) binding federal law probably would not be any different than an actual contempt finding. Ultimately, "high crimes and misdemeanors" are "political crimes" -- crimes against the Republic and its political well being. If the President is defying the obligations of his office (or a majority of the House believes so), that is grounds for impeachment. A specific contempt citation (which a court would be unlikely to issue regardless) would mostly be besides the point. As in the Clinton saga, whether the relevant offenses warranted impeachment or removal from office would be fought out in the courts of politics and public opinion.