Congressman Brad Miller (NC-13) introduced two bills at the start of the new Congress this week to reaffirm the Constitutional powers of Congress – one to allow Congress to ask for a special prosecutor for criminal Contempt of Congress charges against executive branch officials, the second to require the Justice Department Office of Legal Counsel (OLC) to report to Congress all opinions allowing the Administration to ignore federal laws, executive orders, or regulations.

“Congress has to protect its powers under the Constitution to hold the President accountable no matter who is in the oval office,” said Rep. Miller. “These bills give Congress a way to enforce contempt in the future and restores constitutional checks and balances when the Justice Department refuses to act.”

Miller’s Special Criminal Contempt of Congress Procedures Act stems from the refusal of the Bush Administration’s Justice Department to prosecute House-approved contempt citations against White House Chief of Staff Joshua Bolten and former White House Counsel Harriet Miers for ignoring subpoenas in the investigations into the firings of U.S. attorneys for political reasons.  House Judiciary Committee Chairman John Conyers, Jr. (D-MI) also issued a subpoena to former White House Deputy Chief of Staff Karl Rove for testimony about politically motivated prosecution of prominent Democrats which was never enforced.

The Miller bill would allow a federal court to appoint an independent “Special Counsel” to investigate and prosecute alleged Contempt of Congress charges passed by the House of Representatives against current and former executive branch employees, when the Justice Department fails to do so. Like the expired Independent Counsel statute, the Special Counsel established by Miller’s bill would technically work for the Attorney General, and thus be an employee of the executive branch. In practice, the Special Counsel would be largely independent from both the executive and legislative branches and not subject to undue political influences.  Unlike the former Office of Independent Counsel, the Special Counsel would have a specific mandate, a finite budget, and a fixed two-year term of office.

In addition, Rep. Miller introduced The OLC Reporting Act of 2009 to curb “secret law” by requiring the Attorney General to report to Congress when the Department of Justice issues a legal opinion concluding that the executive branch is not bound by a federal statute.

“We can’t allow another administration to operate in secret the way the Bush Administration has,” Rep. Miller said. “ The Constitution gives Congress the duty to check the President’s use of power, and we can’t check what we don’t know about.”

The OLC Reporting Act of 2008 responds to the Bush Administration’s practice of relying on secret legal opinions written by the Justice Department’s Office of Legal Counsel (OLC) to justify ignoring the laws passed by Congress.  These opinions, such as the March 2003 John Yoo memo justifying the use of torture, have the force of law within the executive branch.   

The bill would require the Attorney General to notify Congress when it selectively interprets a law on the basis of the legal doctrine of “constitutional avoidance,” or when it determines, absent express Congressional authorization, that an existing law been superseded by a later law.  The Bush Administration has used both of these tactics to subvert the clear intent of federal statutes.