I consider Ken Starr’s finest achievement was getting so many Democrats on board to abolish the independent counsel, an unaccountable and therefore unconstitutional office that the Supreme Court mistakenly upheld way back in the 1980s in Morrison v. Olson. Starr’s genius was in revealing to Democrats that independent counsel investigations could target and harass Democratic presidents just as much as Republicans. And that was no fun.
Likewise I’m enjoying the Democrats sputtering now against Darrell Issa’s determination to hold Lois Lerner accountable for her clearly political targeting of conservative groups while she was at the IRS, because as with the case of the independent counsel, there are some good Democratic precedents for what Issa is doing. Roll Call reviews the precedents, concluding that Lerner might well be vulnerable to jailing.
But Roll Call missed one interesting precedent. Back in 1982, House Democrats threatened to jail EPA Administrator Anne Burford in a Capitol building jail cell also for contempt (but really for failing to spend Superfund money they way they wanted it spent), and withholding documents under a claim of executive privilege. Georgia Democrat Elliott Levitas explained in a hearing:
I remember before we made that decision of what to do, not only checking out the precedents on the inherent power of Congress to hold a person in contempt, but what would be done if that occurred. Who would go out and arrest Ms. Burford? And where would she be incarcerated? I checked out the location of the old jail in the Capitol Building. I actually went and met with the Architect of the Capitol, and he took me around and showed me where they [the Capitol police] used to hold prisoners.
Worth bringing up at the next hearing, and watching Elijah Cummings’ head explode. Anyway, it was out of this inter-branch conflict over the EPA that the famous Morrison v. Olson case arose.