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Oh, No, Not a Constitutional Showdown:
According to the AP, President Bush made a statement a few minutes ago in which he apparently threatened a constitutional showdown if Congress turned down his offer to have top aides testify about the U.S. Attorney firings only in private and not under oath. I gather this means that if Congress subpoenaed White House officials, the White House would assert executive privilege and force a lawsuit over whether the subpoena could be enforced.

  I wonder, though, wouldn't Congress be simply delighted to have this become a constitutional showdown? It would keep the issue in the headlines for weeks, and litigation would be likely to narrow the scope of executive privilege rather than expand it. Given that, this seems like a weird warning to make (assuming that the AP is reporting the warning accurately).
Public_Defender (mail):
Merely asserting executive privilege would make the Bush administration look like they had something to hide, just like taking the Fifth Amendment makes it look like the witness has something to hide.

If there is anyone competent left at the White House, they will realize that this is the beginning of an onslaught of subpoena's on many different topics. They either fight or give up. Given that they have only 22 months left, they may just try to run out the clock.
3.20.2007 7:17pm
Steve H (mail):
Can someone explain how the executive privilege argument could be used to prevent the United States Congress from issuing a subpoena to Harriet Miers, a private United States citizen?

I get how the privilege could be claimed to relieve her from having to answer questions regarding her conversations with the President, but I don't see how that privilege could be used to prevent her from testifying at all.
3.20.2007 7:26pm
Just an Observer:
I tend to agree with OK's political assessment. But the move is classically Rovian: Attack your opponents' apparent strength, and try to rally "the base." That support, particularly among congressional Republicans, may be unenthusiastic when it comes to Gonzales.

I am interested in knowledgeable assessment of the legal situation. If Bush is not bluffing, what is the outlook on executive privilege? What would the likely contours of such a case be? Doesn't immediate responsibility for enforcing congressional subpoenas lie with U.S. attorneys? IIRC, much of the thin precedent on executive privilege involves national security, and no one is invoking that here. Would the court consider a political standoff over the scope of the privilege justiciable?
3.20.2007 7:32pm
Justin (mail):
Well, it all depends on whether the Democrats have any spine. I think its safe to say with this White House that "not under oath" = instructed to lie.
3.20.2007 7:57pm
c.f.w. (mail):
Does claiming executive privilege imply the decision was made in the white house, perhaps by bush? If not by bush, how is it the executive privilege applies? Anyone in the WH gets to claim the executive privilege? Based on the Nixon case?

What about attorney client privilege or attorney work product privilege?

Those privileges go away if the crime/fraud exception applies.

This looks like a dead-bang loser for bush. In theory, there could be a privilege that applies, but he lacks the facts to get the theory convincingly developed and articulated by relevant courts, in my view.
3.20.2007 8:13pm
mjs (mail):
Justin:
Well, it all depends on whether the Democrats have any spine. I think its safe to say with this White House that "not under oath" = instructed to lie.
3.20.2007 6:57pm


As opposed to the Clinton White House, right, Justin? Does your contempt for Bush run so deep that you are really incapable of seeing what a silly, stupid point that is? I mean, really, this White House...? Scary that you Bush-haters apparently feel not the slightest bit of embarrassment at the illogic of most of your "digs," so long as you manage to get a cute and witty (or so you think) zinger off your chests. Guess it's cheaper than a therapist.

And to head off the predictable claptrap which you will spew forth should you respond to this: no, Justin, I think it is wrong when any administration, D or R, perjures itself.

[OK Comments: MJS, I trust that your reflexive hatred for reflexive Bush-haters won't blind you to your lack of civility.]
3.20.2007 8:28pm
Andrew W (mail) (www):
That's the constitutional showdown. But then there's the constitutional crisis: which agency is in charge of enforcing subpoenas? That'd be the Justice Department, right?
3.20.2007 8:32pm
AntonK (mail):
A lot of the criticism of the firing of the eight prosecutors by the Bush Justice Department has tried to differentiate between the 93 prosecutors that Clinton fired when he came into office by saying that that was a regular custom for new presidents while there is something suspicious about a president firing prosecutors who he doesn't think are following the administration's agenda.

Over the weekend on the Journal Editorial Report, John Fund referred to Clinton's firing not only all the Republican prosecutors when he came in, but also 30 more of his own appointees.


It's bizarre though, because the previous administration, the Clinton administration, not only fired 93 Republican-appointed U.S. attorneys on one day--they called it the "March massacre" back in 1993--and some of that was suspected in order to cover up for political cronies who were under investigation. During the Clinton administration they also fired, removed or replaced 30 Democratic appointees to U.S. attorney slots, very similar to this, which is only eight.
3.20.2007 8:34pm
Mark Field (mail):

Does your contempt for Bush run so deep that you are really incapable of seeing what a silly, stupid point that is? I mean, really, this White House...?


Would you agree that there have been Administrations which would not behave as Justin described? If you do agree, then perhaps the modifier makes sense.


A lot of the criticism of the firing of the eight prosecutors by the Bush Justice Department has tried to differentiate between the 93 prosecutors that Clinton fired when he came into office by saying that that was a regular custom for new presidents while there is something suspicious about a president firing prosecutors who he doesn't think are following the administration's agenda.


I think it's important to keep the sequence straight. It wasn't the critics trying to differentiate, it was the defenders trying to compare. When the issue of the 8 USAs first arose, a number of people tried to equate that to the Clinton Administration's replacement of all 93. That argument isn't very persuasive, as the critics have demonstrated.

If you now want to suggest a new and different defense, that can be analyzed on its own merits.
3.20.2007 8:50pm
Dick Schweitzer (mail):
Will not the subject of the enquiry (stated if not actual purpose of a hearing), be controlling as to the initial issue of the validity of any subpoenae? The Court might just as likely make some interesting (and useful) delineations there.

But, where executive discretion is absolute, can the considerations for, and participants in its exercise be subject to "oversight?"
3.20.2007 9:11pm
Fub:
[Orin Kerr, March 20, 2007 at 6:12pm, wrote:
According to the AP, President Bush made a statement a few minutes ago in which he apparently threatened a constitutional showdown if Congress turned down his offer to have top aides testify about the U.S. Attorney firings only in private and not under oath.
Maybe it's just a picayune thing, but isn't unsworn testimony, in the legal sense of the words, an oxymoron?
3.20.2007 9:22pm
Steve:
During the Clinton administration they also fired, removed or replaced 30 Democratic appointees to U.S. attorney slots, very similar to this, which is only eight.

I assume someone will provide backup for this claim by John Fund, as it seems to contradict everyone else's research, including that of the Congressional Research Service. The CRS (pdf link) found a mere eight examples of US Attorneys who were replaced during Clinton's tenure without serving a full four-year term, none of whom were fired.

If we're not counting the initial replacement of 93, I'd challenge Fund to name a single US Attorney who was "fired" or "removed" by Clinton - let alone 30. "Replaced," of course, is a horse of an entirely different color, and it could easily apply to US Attorneys who resigned and were replaced.

Fund isn't exactly noted for his honesty on claims like this, so I'll wait for the backup.
3.20.2007 9:44pm
Jules Siegel (mail) (www):
Kagro X at DailyKos.com discussed this back in December and has now summarized what he perceives to be the issues again. Here below is his basic argument. I'd be interested to know what merit it might have.

[L]et's look at the mechanics of subpoena power. In its investigative capacity, Congress has adopted for itself the use of a subpoena power that's roughly analogous to that more commonly seen in the judicial and law enforcement system, in which government prosecutors (employees of the executive branch) leverage the power of the judicial branch (in the form of its ability to sentence those brought before it for contempt, should they defy the subpoenas) to ensure compliance with the demands made.

But Congress is not the executive branch. Nor is it the judicial. Its independent enforcement powers are limited to only the most obscure and archaic procedure -- "inherent contempt" -- which hasn't been exercised since 1935, and with good reason: this procedure itself requires a trial before Congress. Not a particularly helpful substitute when you're trying to avoid a trial before Congress [read: impeachment] in the first place.

Instead, Congress depends for its enforcement powers on the executive branch. If you defy a Congressional subpoena, you face the possibility of charges of contempt of Congress, pursuant to the adoption of articles by whichever house is charging you. But those charges are not self-executing. In other words, they're a request that charges be brought. In order to be effective, those charges still have to be prosecuted in court, and that's up to the discretion of the U.S. Attorney for the District of Columbia. He's an employee of the "unitary executive," of course, and reports to the Attorney General.

So if you're conducting oversight of, say, the NSA spying program, and you want answers from Gonzales regarding the program's legality, and you subpoena him and he tells you to take a flying leap, what do you do?

You could try going to court, but not only will that pretty much run out the clock, but the courts are quite likely to tell you, "What are you crying to us for? You have your remedy. If you're too chicken to use it, that's your problem." They may well hand it right back to Congress as a "political question," and refuse to resolve it. After all, tied up in that question is yet another: should the legislative branch be able to leverage the judicial in order to force the executive to submit to its will?

Long story short: This is not an issue that can be resolved on moral, ethical, legal, or political grounds alone. It can be ignored for any or all of those reasons, but not resolved.
3.20.2007 9:47pm
Jules Siegel (mail) (www):
See JURNEY v. MACCRACKEN, 294 U.S. 125 (1935) for the Supreme Court decision on the 1935 case.
3.20.2007 10:02pm
Christopher Cooke (mail):
I looked into the "Clinton did it too, but with 93 USAOs" argument. It is false.
The supposed Arkansas USAO whom Clinton fired to cover up Whitewater is a fellow by the name of Charles Banks. Banks, it turns out, rejected a criminal referral from the RTC regarding Madison Guaranty that identified Bill and Hilary as "witnesses." So, if Clinton purportedly fired 93 USAOs to cover up his firing of Banks, why? Banks wasn't going to investigate him over Whitewater anyway and in fact had rejected the one referral that had been made about the matter. Some coverup. Combine this with Stuart Gerson, Bush 41's Deputy AG and Clinton's acting AG (until Reno), who said that the termination of the 93 USAOs was perfectly normal.

As for John Fund, my guess he is now apparently reading off of new, equally inaccurate talking points from the RNC, by claiming that Clinton fired 30 USAOs mid-term.

As for the conflict between Congress and the Executive Branch, Congress does not even recognize the attorney-client privilege (at least not expressly) for witnesses whom it subpoenas. I can't see it paying much deference to executive privilege. The courts will have to be the ultimate arbitrator, but the question is whether they will do so, or duck the issue using the political question doctrine.
3.20.2007 10:08pm
StevenK:
Both parties are hoping to make the other side look bad, politically speaking. (I also think they both believe in what they're doing, and would probably believe just as much if the parties were reversed and they were taking the opposite position.)

A constitutional showdown amounts to a political showdown, and either side could win. The other choice is submission by Bush. So, to answer your question, no, I don't think Congress is "delighted" by a showdown. I think they'd rather win by default.
3.20.2007 10:22pm
Andrew Okun:

I mean, really, this White House...?

Yes, this White House. I hated Reagan and Bush 41, too, but neither they nor Clinton hold a candle to these guys on secrecy. What's happening here is that Bush has gotten used, over the last six years, to not having to answer significant questions and he's trying to pull the same stuff again. The late Republican Congress -- and this is not true of Republicans generally -- did not believe in holding its own side accountable. Everything was done with an eye to political advantage. I heard Tom Delay on the radio this morning ... no apologies, no regrets, Democrats are "my enemies." I'm in favor of partisanship because that's how we fight about stuff, but that's too much.

Now the Democrats, still flinching from Delay-inflicted, are probably going to do the same stuff back and it will be ugly and wrong, but they're not there yet. This inquiry is proper.

Exchange on meeting up with a political friend yesterday:

Q: "What's new?"

A: "Oversight."
3.20.2007 10:33pm
David Maquera (mail) (www):
I ask this as a lifelong Republican: Who is giving such sophomoric political advice to President Bush???
3.20.2007 10:37pm
Paddy O. (mail):
I haven't been following this too closely. Was there any law broken? Is there any accusation of any law being broken? It sounds to me like Bush was legally able to do what he did. If he was legally able to do what he did isn't then what Congress is trying to do much the same. They are trying to be political enforcers against those they disagree with. I don't see the difference. Unless there's something illegal that I've missed, the whole scene is a bunch of politics. Why doesn't Congress get to doing things the American people want rather than get bogged down in political payback?

If they do, then it does play nice for Republicans who can, in 2008, show that Democrats don't actually have any other goals.

But, maybe there is something illegal I've missed, making this all worthwhile. If not, I can't imagine too many people caring how this turns out, except inasmuch it distracts against getting something new done.
3.20.2007 10:40pm
Porkchop (mail):
Congress has independent standing to seek a judicial order enforcing its subpoenas. They simply have a committee staff lawyer draft up a motion for an order to show cause and file it with the U.S. District Court for the District of Columbia. The Court will issue an order setting out a briefing and argument schedule, and it will go forward like any other case. Subpoena enforcement is not that hard, either in concept or execution.

Back in my youth there was this guy named Nixon who had some tapes he didn't want to turn over to Congress, and they went all the way to the Supreme Court, where they spent an hour or so discussing executive privilege, and then the Supremes decided that Nixon should give up the tapes. At that point, Nixon had to decide whether it was really a good idea to thumb his executive nose at a court order. The rest, as they say, is history.

It is true that the enforcement mechanisms are, for the most part, within the control of the executive branch, but I really, really doubt that any President wants the constitutional crisis that would ensue if he defied a court order upholding a congressional subpoena.
3.20.2007 10:58pm
Justin (mail):
I understand that this will fire up the base - but I'm not sure I understand exactly why. Can some conservative please tell me the passion behind, you know, standing up to Congress's determined overreaching to - uhhh, find out why USAO's were fired in very suspicious circumstances?

I'm not asking conservatives for technical defenses of either the underlying firings or the executive privilege argument. I'm asking why this is something that you would actively get behind. If the WH is guilty of firing prosecutors in order to manipulate elections and hide corruption, this seems to be the kind of battle that defense lawyers do, but not the battle that makes them proud to be a defense lawyer. If the WH is innocent, then shouldn't you feel at least some urge for them to open up and prove it?

Or is there, in today's day, a base-passion in simply the thrill of partisan politics, a game of constitutional chicken that heats the blood like we're drunk teenagers?
3.20.2007 11:18pm
Mark Field (mail):

Was there any law broken? Is there any accusation of any law being broken?


Potentially, yes. Lying to Congress is a crime, and a couple of the obstruction of justice statutes are broad enough that they could include some of the conduct here.
3.20.2007 11:20pm
Paddy O. (mail):
There were clear charges of illegal activity with Nixon. I don't hear any of that now.

Does there need to be shown clear wrongdoing (besides political)? I would think the Courts would give the President a fair amount of leeway and need something more than political payback to rule against him. What is the burden Congress has to show to overrule the President's own authority on this?
3.20.2007 11:20pm
Justin (mail):
Paddy O., as I mentioned in another post, we're talking about multiple counts of obstruction of justice (Iglesias, Lam, and the threat made before testifying before congress), and perjury. You may want to familiarize yourself with 18 USC 1512 (b) and (c), and 18 USC 1505.
3.20.2007 11:22pm
Justin (mail):
Depending on the facts, there could be arguments that RICO was also violated, and there could be criminal conduct related to malicious prosecution.

Furthermore, something doesn't have to be statutorily criminal to be impeachable activity. To some degree, what is impeachable is what Congress says it is.
3.20.2007 11:25pm
therut:
I personally think the Federal government is made up of kindergarden children. Something is wrong in D.C. and both sides stink. They are useless and I am tired of listening to them bicker and think We The People should charge them all with a domestic violence felony. No wonder no one worth a damn goes into politics. Why bother?
3.20.2007 11:33pm
Nick W. (mail):
Couldn't congress just have the capitol police physically arrest Rove once he was found in contempt? The last time I checked, the capitol police answer to the sgt-at-arms and not the president.
3.20.2007 11:38pm
J. F. Thomas (mail):
Does there need to be shown clear wrongdoing (besides political)? I would think the Courts would give the President a fair amount of leeway and need something more than political payback to rule against him.

Unfortunately for Bush, the rather frivolous pursuit and subsequent impeachment of Clinton for purely partisan reasons (even if they did finally find an actual felony to base the impeachment on).
3.20.2007 11:41pm
Porkchop (mail):

Back in my youth there was this guy named Nixon who had some tapes he didn't want to turn over to Congress, and they went all the way to the Supreme Court, where they spent an hour or so discussing executive privilege, and then the Supremes decided that Nixon should give up the tapes. At that point, Nixon had to decide whether it was really a good idea to thumb his executive nose at a court order. The rest, as they say, is history.

Oops, maybe it's advancing age. :-0 It was the special prosecutor who wanted the tapes. In any event, Nixon decided against precipitating a constitutional crisis by refusing to comply.

Congress can and does seek judicial orders to enforce subpoenas. Ironically, I once interviewed with Congressman Cheney for a position on the minority staff of the Iran-Contra committee, and he was really adamant about his lawyers being very familiar with enforcement of congressional subpoenas through judicial subpoena enforcement proceedings.
3.21.2007 12:21am
Clayton E. Cramer (mail) (www):

Unfortunately for Bush, the rather frivolous pursuit and subsequent impeachment of Clinton for purely partisan reasons (even if they did finally find an actual felony to base the impeachment on).
Fascinating. The guy in charge of directing law enforcement in the U.S. perjures himself, and that's a "purely partisan reason" to remove him from office.
3.21.2007 12:21am
Justin (mail):
"Fascinating. The guy in charge of directing law enforcement in the U.S. perjures himself, and that's a "purely partisan reason" to remove him from office."

Ummmmm....so you're saying...that Gonzales should be removed?

Cool, I can live with that.
3.21.2007 12:28am
J. F. Thomas (mail):
Fascinating. The guy in charge of directing law enforcement in the U.S. perjures himself, and that's a "purely partisan reason" to remove him from office.

I'm confused, are you talking about Gonazales or Clinton? The pursuit of Clinton was obviously partisan although he did indeed lie under oath. And anyway, apparently perjury is no longer a big deal. The recent emails have clearly shown that Gonzales lied about the circumstances surrounding the firings. Allowing WH officials to talk to congress off the record and not under oath just encourages them to lie even more.
3.21.2007 12:35am
Roy S:
Along the lines Orin suggests, what baffles me about this is why Bush would want to frame the "showdown" in the manner chosen. That is, he has chosen to go to the public with "I'm offering unsworn testimony, and if they want testimony under oath, they can't have that." Even if Bush has a legal basis for this distinction (presumably involving principled objections to the legislative branch subjecting executive branch employees to the oath), it seems like a hard sell to the public. Won't the people see this as equivalent to "I don't want them to have to tell the truth, and those lousy Democrats do?"
3.21.2007 12:41am
Justin (mail):
Roy S, you are assuming the President cares about being accountable to the people. He's not up for re-election in 08.
3.21.2007 12:43am
Dick Schweitzer (mail):
In Re: Post of Jules Siegel, supra -

It is interesting that such a clear cut view (which, as a lawyer, I find right on point) apparentlty comes from a very "partisan" source.
3.21.2007 12:45am
Just an Observer:
I ask this as a lifelong Republican: Who is giving such sophomoric political advice to President Bush???

Fred Barnes in public. (Karl Rove in private?)
3.21.2007 12:46am
Christopher Cooke (mail):
The issue of whether Clinton did indeed commit perjury was never decided by anyone. Perjury is different from lying under oath, as you must lie about a material issue in the proceeding. I thought it likely that Clinton committed perjury before the grand jury, but not in the Paula Jones trial.
3.21.2007 1:31am
Lev:
How is this any different, or much different, from the various Senate Intelligence Committee investigations and, if memory serves, the Joint Committee on Iran Contra, in which various individuals, both current and former, in the White House, including Reagan, Bush, Cheney, Clinton and Gore "testified" to congressmen and their investigators without being under oath?

Further, doesn't the President now have to specifically authorize claims of executive privilege, as a result of Clinton claiming privilege for just about everything including his dating habits?
3.21.2007 1:46am
Cornellian (mail):
Anyone got a cite for the statute that gives Congress subpoena power? Does it explicitly provide for executive privilege, or it there just a generic exemption for privileged communications?
3.21.2007 3:13am
Randy R. (mail):
Therut: I personally think the Federal government is made up of kindergarden children."

So you would like the Senate to do nothing in this matter? What better way to have the White House continue to act like children than to simply ignore it, as you seem to suggest?

It seems to me that Bush is acting exactly as he always has: He believes that he is answerable to no one, except Jesus, and that's that. He's merely acting on principle.
3.21.2007 3:19am
Jules Siegel (mail) (www):
From the newsroom-l listserv (very lightly edited for clarity):

MichaelP wrote:
Congressional Investigations: Subpoenas and Contempt Power

Summary

When conducting investigations of the executive branch, congressional committees and Members of Congress generally receive the information required for legislative needs. If agencies fail to cooperate or the President invokes executive privilege, Congress can turn to a number of legislative powers that are likely to compel compliance.

The two techniques described in this report are the issuance of subpoenas and the holding of executive officials in contempt. These techniques usually lead to an accommodation that meets the needs of both branches. Litigation is used at times, but federal judges generally encourage congressional and executive parties to settle their differences out of court. The specific examples in this report explain how information disputes arise and how they are resolved.

For legal analysis see CRS Report 95-464A, Investigative Oversight: An Introduction to the Law, Practice, and Procedure of Congressional Inquiry, by Morton Rosenberg, and CRS Report RS30319, Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments, by Morton Rosenberg.

A number of legislative tools, including subpoenas and contempt citations, are covered in CRS Report RL30966, Congressional Access to Executive Branch Information: Legislative Tools, by Louis Fisher. For a general report on oversight methods, see CRS Report RL30240, Congressional Oversight Manual. This report will be updated as events warrant.

In addition take a look at: LEGAL EFFECTIVENESS OF CONGRESSIONAL SUBPOENAS ISSUED AFTER AN ADJOURNMENT SINE DIE OF CONGRESS, Memorandum for Janet Reno, by Chris Schroeder, Acting Assistant Attorney General, Office of Legal Counsel, November 12, 1996

"...the Supreme Court has stated that the authority to subpoena is an 'indispensable ingredient' of Congress' legislative power. Eastland v. United States Servicemen's Fund, 421 U.S. 491, 505 (1975). In McGrain v. Daugherty, 273 U.S. 135, 174 (1927), the Court declared that "the power of inquiry-with process to enforce it-is an essential and appropriate auxiliary to the legislative function."

According to the Court:

"A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information ---which not infrequently is true -- recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed.

In response to Dick Schweitzer, I would point out that the issue that Kagro X discusses is enforcement of the subpoena. I think that any reading of JURNEY v. MACCRACKEN supports the view that the Sergeant at Arms has the power to arrest and detain individuals in order to enforce compliance. Kagro X's dismissal seems a bit ingenuous.
3.21.2007 9:30am
Justin (mail):
Wow, Lev, that rhetoric sure is powerful.

Except, you know, for the long list of White House staffers in the Clinton Administration who testified (under oath) before Congress.
3.21.2007 9:41am
Anderson (mail):
I think what Bush is about here is this:

Finding a way to keep Rove, or Miers, from having to plead the Fifth before Congress.

Even in this day &age, that would presumably make the present storm look like a gentle summer breeze.
3.21.2007 9:54am
rarango (mail):
This case seems pretty simple to me--the attorneys were (probably) fired for partisan political reasons--esp in New Mexico given those phone calls from the honorable members; and the hearings and subpoenas are being conducted for (probably) partisan political reasons. Like duhhhh--whats hard about this? I would hope both Rs and Ds spare us all the "higher purpose" arguments--they simply aren't very convincing.

These issues, of coure are vital to the continued existence of the republic, especially as the war extends into its fourth year, the government continues to be funded by a continuing resolution, and the democratic controlled congress seems incapable of exercising its authority to simply end the war by cutting off funding for it. Political theater, legislativie masturbation, and of course, "oversight" are ever so much more important than, say, passing a budget, restoring all of those missing civil liberties, and ending a war. (sarcasm off)
3.21.2007 10:04am
Just an Observer:
Thanks, Jules Siegel, for that informative post.

FYI, here is an online link to the CRS Congressional Oversight Manual, which does have a dispassionate description of subpoena and enforcement procedures and history.

I think it is important to recognize that the standoff between Congress and the White House is still several steps away from the brink. A negotiated settlement is still possible -- and if history serves, negotiations frequently are not settled until the parties actually are at the brink of a congressional contempt finding.

(And remember, Fred Fielding is an old hand at this stuff. That's why he was recruited. This is also not the first rodeo for Patrick Leahy or John Conyers.)

As I understand it, the next steps planned are for the House and Senate Judiciary committees to authorize issuance of subpoenas. Actual issuance of the subpoenas would be a separate step, and service yet another. Then the served parties might contest in court, or might just stonewall. If they do defy subpoenas, then the houses of Congress might vote contempt. Actual enforcement of such contempt findings could be really tricky (a U.S. attorney is probably in the loop), but things usually do not reach that stage.
3.21.2007 10:08am
dwa:
Furthermore, something doesn't have to be statutorily criminal to be impeachable activity. To some degree, what is impeachable is what Congress says it is.


Can you clarify this? If something is not coded in statute, or specifically in violation of the Constitution, how can it be a crime, which is kinda sort of a requirement for impeachment? Are you suggesting that the requirements for impeachment can be waived by Congress at will, or that they may retroactively declare perfectly legal, if potentially politically embarassing, activities as "crimes" that rise to the level of impeachment, otherwise known as ex post facto laws? This strikes me as very dangerous territory to venture in to.

Potentially, yes. Lying to Congress is a crime, and a couple of the obstruction of justice statutes are broad enough that they could include some of the conduct here.


This forces us to ask the question, does Congress have the right to force people into giving sworn testimony concerning situations in which no criminal activity has taken place, or is even reasonably suspected, all for the purpose of dredging up politically embarassing testimony, maybe even fishing for a perjury charge? (Do note that Lam was not fired but rather not recommended for another term, and furthermore was already on the hotseat long before the Cunningham story broke, which led to her involvement, so forgive me if I feel that the whole obstruction of justice argument just doesn't hold water) And I of course mean the New Perjury (tastes great AND less filling!) evidenced in the Libby trial, where you don't even have to be consciously lying, just remember things differently than other people, who can't possibly themselves be mistaken because they're testifying against a Republican.
3.21.2007 10:36am
Ramza:

These issues, of coure are vital to the continued existence of the republic...

An independent and fair judicial system is also of vital important to the continued existence of the republic.

Not saying what you said about the war isn't important, congress has the power and time to do both. Lets try not to make this into a game of Hobson's choices when there is really no reason to.
3.21.2007 10:45am
Justin (mail):
"This forces us to ask the question, does Congress have the right to force people into giving sworn testimony concerning situations in which no criminal activity has taken place, or is even reasonably suspected, all for the purpose of dredging up politically embarassing testimony, maybe even fishing for a perjury charge?"

Yes (although perjury involves relevance as a portion of the proven charges - some famous lawyer once successfully litigated a case by proving that the defendant, an American soldier in World War II, could not be helping Congress pass a law that had already been passed, and thus was not guilty of perjury). But certainly this would not pass muster here, because there is reasonable suspicion that a crime has taken place, and in any event, given the (theoretically legal) obstruction of justice that very much appears to have taken place, congressionally enacted reform can take place at minimum, and so a valid purpose exists nevertheless.

And there's no Judicial review of a political impeachment. See Nixon v. United States, 506 U.S. 224 (1993).
3.21.2007 11:00am
davod (mail):
Nothing I have read here addressess Executive Privilege.
3.21.2007 11:21am
dwa:
But certainly this would not pass muster here, because there is reasonable suspicion that a crime has taken place, and in any event, given the (theoretically legal) obstruction of justice that very much appears to have taken place, congressionally enacted reform can take place at minimum, and so a valid purpose exists nevertheless.


But like I pointed out in my post, the belief that there is a reasonable suspicion of a crime is materially false, as a) Lam wasn't fired, she was not renominated for another term (she additionally was "on the list" long before the issue of Cunningham came up, and the administration certainly made no efforts to stop the work she began after the fact, which, in reasonable people, would at least imply they weren't motivated to remove her to protect Cunningham), and b) it is the President's prerogative to fire attornies general and nominate replacements at his whim in any event, regardless of whether this is good policy or not.

Back to my main point; are you absolutely certain you want to say that Congress can, on a whim, bring witnesses forward to make sworn testimony on issues not related to violations of the law (remember, they did not start with demands for testimony related to accusations that the administration removed these attornies in violation of federal hiring laws, obstruction of justice, or other violations of federal law, but rather, with allegations that, wonder of wonders, politics played a part in the "removal" of political appointess, which is none of their concern)which is essentially criminalizing political disagreements? Please cite me relevent statutes which give Congress such broad powers and explain how they don't horrendously violate the separation of powers, let alone basically grant congress the right to throw privacy rights entirely out of the window as they see fit, and if you are a-okay which such powers eventually being vested in people who politically disagree with you.
3.21.2007 11:28am
M. Gross (mail):
I am once again amazed that the Bush administration has decided to lie about something, and thus made the entire issue about ten times worse than if they had simply told the truth.

They should have simply told Congress they didn't like the 8 AG's work, and terminated them thuslessly, as was quite within their authority. There's no huge amount of scandal in that alone.
3.21.2007 11:34am
loki13 (mail):

Furthermore, something doesn't have to be statutorily criminal to be impeachable activity. To some degree, what is impeachable is what Congress says it is.


Can you clarify this? If something is not coded in statute, or specifically in violation of the Constitution, how can it be a crime, which is kinda sort of a requirement for impeachment? Are you suggesting that the requirements for impeachment can be waived by Congress at will, or that they may retroactively declare perfectly legal, if potentially politically embarassing, activities as "crimes" that rise to the level of impeachment, otherwise known as ex post facto laws? This strikes me as very dangerous territory to venture in to.


dwa,

You may not like this, but the poster was entirely correct. 'High crimes and misdemeanors' is an undefined term, to be defined by Congress. It is a *political* question. An impeachable offense is what Congress deigns it to be. It is not defined by the criminal code (there are many incidental criminal laws a President accidentally or purposely may break that may not be impeachable) and there are activities that may violate no known law that a President may do that may be impeachable. If Congress behaves in an out of control manner and impeaches a President for no reason, the remedy is for the people to express their displeasure at the ballot box by voting out the Congress.

Historically, impeachment is incredibly serious, and not to be taken lightly. That is why many Constitutional scholars found fault with the Clinton impeachment, and why Andrew Johnson was eventually not convicted. It is the overturning of a valid election of the people. When I see activists say, "Impeach Bush, Impeach him now" I shudder- I may disagree with him, I may even dislike him strongly, but he was duly elected, and unless clear and convincing evidence comes out of serious and widespread malfeasance (not necessarily convictable criminal crimes) I do not believe such rhetoric is helpful.

Anyway, to sum up ConLaw 101: Impeachment is what Congress wants it to be. Then they have to answer to the people.
3.21.2007 11:39am
JosephSlater (mail):
On the off chance that that the title to Orin's original post was a reference to Monty Python's "Oh no, not the comfy chair!" rountine, kudos (of a kind). If not, never mind.
3.21.2007 11:40am
Justin (mail):
dwa, the lying to Congress (perjury), any attempts to obstruct justice by interfering with an ongoing investigation (McKay, Iglesias), the removal of an attorney for the purposes of interfering with an ongoing investigation (McKay, Iglesias), and the obstruction of justice by threatening people if they disclose truthful matters to Congress (all 8) are all crimes. There is an open question as to whether a decision not to renew a term of a political appointee WHEN THAT RENEWAL IS DONE FOR THE PURPOSE OF IMPEDING A FEDERAL INVESTIGATION is a crime, but its an open question - not a cut and dried one as you claim. But even if we grant you that, the idea that there's no reasonable suspicion for a crime is absurd. If the President was an ordinary citizen, and we were talking about an ordinary warrant, the idea that the police couldn't now obtain one simply boggles the mind.
3.21.2007 11:49am
FantasiaWHT:
Clinton, Martha Stewart, Libby, Gonzalez...

I'm a pretty partisan guy in general, but this whole "there was no underlying crime committed but we're gonna stick you with perjury or obstruction anyway" idea just utterly appalls me.
3.21.2007 12:01pm
dwa:

Anyway, to sum up ConLaw 101: Impeachment is what Congress wants it to be. Then they have to answer to the people.


According to Gerald Ford. And, presumably, by Congress themselves. But that is certainly no surprise, and not really relevent. The verbiage, as well as the supporting literature and arguments, which are well-known, point to a restricted view of high-crimes and misdemeanors, not an as-you-wish view, and certainly not what I was asking clarification of, which is Justin's statement that it doesn't have to be statutory to be a crime, implying that non-criminal acts can somehow be crimes worthy of impeachment, which is a logical impossibility.
3.21.2007 12:01pm
Anderson (mail):
but this whole "there was no underlying crime committed but we're gonna stick you with perjury or obstruction anyway" idea just utterly appalls me.

I used to think this, until it was pointed out to me that obstructing justice, and perjury, are ALL ABOUT making it impossible to prosecute an underlying crime, or even to determine whether that crime was even committed.

So to limit obstruction/perjury charges to cases with underlying crimes charged, is basically to *reward* perjurers and obstructors.
3.21.2007 12:10pm
Anderson (mail):
They should have simply told Congress they didn't like the 8 AG's work, and terminated them thuslessly, as was quite within their authority.

Well, they could have, but (1) they would have been lying - in some cases, they had no real objections to the work.

And (2), they obviously were afraid to fire them for no stated reason at all. When someone gives you a false reason for his actions, it's because he doesn't want to give you the true one.

Congress is entitled to be curious as to the true reason, as it had just surrendered confirmation authority over these posts.
3.21.2007 12:12pm
M. Gross (mail):
Well, they could have, but (1) they would have been lying - in some cases, they had no real objections to the work.

"Didn't like their work" is a pretty broad reason. I think it certainly encompasses firing them for not investigating voter fraud claims.
3.21.2007 12:21pm
DrGrishka (mail):
I simply do not see a way for Congress to enforce their subpoena, other than by having Sargeant at Arms arrest AGAG, Rove, and Miers. (I would like to see that just for sheer amusement).

Other than that, it seems to me that this p***ing match between tow ends of the Pennsylvania Avenue is not justiciable. Why would any court want to get involved in this childishness? Plus Congress has plenty of tools to force the President to comply. Beginning with impeachment and ending with cutting off funds to run the White House. If they don't have the cojones to use these powers, I do not see why the courts should help them.
3.21.2007 12:23pm
Justin (mail):
Impeachment and cutting off funds requires a supermajority of Congress - 2/3 of the Senate in any event. Under United States v. Nixon, 418 US 683 (1974) and to a lesser degree Clinton v. Jones, 520 US 681 (1997), it appears that this is *not* simply a political question.

Furthermore, Congress should not be required to make the irresponsible choice of crippling the executive (especcially in a time of war) in order to conduct its constitutionally-expected oversight, solely because the President decides to take an equally immature position.

Given both that the law and policy is in favor of at least some attempts to resolve this judicially, I don't think Congress should simply sidestep that route entirely.
3.21.2007 12:30pm
Adeez (mail):
If I may make a broad point relating to this and other issues:

I can understand siding w/an administration on a not so cut-and-dry issue when the administration has otherwise been honest and open on other issues. But here we have an administration that is such a demonstrable failure, whose contempt for the public as well as Congress has been so palpable since Day 1. It has lost the benefit of any reasonable doubt long, long ago.

And no, it's not partisanship. Anyone who cares about our Constitution and what made this nation great ought to be outraged at this administration, and many of those who would never vote Democratic or label oneself a liberal have expressed such outrage. The only valid question is what's wrong with those who still refuse to see it.
3.21.2007 12:35pm
Tom Holsinger (mail):
I suspect Bush's motive is to defuse this latest instance of executive incompetence by turning it into a "controversy about a controversy". I.e., give the Democrats an opportunity for more mindless partisan bickering, and waste their energy on that to keep them from focusing on something more dangerous.
3.21.2007 12:36pm
dwa:
Justin, do you have any facts to back up those accusations? The dismissal of Inglesias was known to be because of his refusal to prosecute voter fraud, McKay largely for spending more time complaining, in public, not to his superiors in the DoJ, of budget cuts than actually doing his job, and I could go on, but it isn't necessary to my point, because these accusations were not why Congress called for hearings to begin with; they called for hearings because they believed these firings/refusals were politically motivated, and accusations of criminal neglect only came afterward, and as Congress has absolutely no business telling the President he can't remove one of his appointees due to political differences (especially when those differences result in prosecutors not carrying out their duties as assigned by the President through the DoJ), this thing had absolutely no reason to get that far.

Also:

There is an open question as to whether a decision not to renew a term of a political appointee WHEN THAT RENEWAL IS DONE FOR THE PURPOSE OF IMPEDING A FEDERAL INVESTIGATION is a crime, but its an open question

you have got to be kidding me. The President is obligated BY LAW to reappoint someone involved in an investigation who's term is set to expire? This is delusional; there is absolutely no reason why someone else can't pick up where Lam left off, which, obtw, is exactly what happened, and why Cunningham is in jail.
3.21.2007 12:48pm
Bruce Hayden (mail) (www):
Somehow firing (or forcing the resignations of) the U.S. Attys investigating White Water and Rep. Rostenkowski was legal, but this is illegal? Come on. One of those fired by Clinton was running an investigation what involved his wife, and the second, the Chair of the Ways and Means Committee.

The above comments affirm the adage that a DA can indict a ham sandwitch. Yes, someone could make a convoluted claim and case that the AG (President, et al.) interferred with justice or whatever by firing a U.S. Atty. investigating someone that some Representatives think should be investigated.

But before getting too excited about this, what happens in a bit under two years, when another of these U.S. Attys. is investigating another financial misdoing by the incoming Presidend Hillary Clinton? Should she be impeached for having her AG fire that U.S. Atty.? Or is it somehow ok if she fires all of them like her husband did - even if a bunch of ongoing investigations are scuttled?

Frankly, I don't think that you want to go there. If you criminalize the Bush Administration firing USAs, it is going to be very hard to decriminalize the firing of them by the next Democrat in the White House.
3.21.2007 12:52pm
William Tanksley (mail):
Can some conservative please tell me the passion behind, you know, standing up to Congress's determined overreaching to - uhhh, find out why USAO's were fired in very suspicious circumstances?


Simple. It's because giving in to these demands as they are now would result in a prejudged show trial. (Listen to the rhetoric!) Resisting *might* result in some better circumstances, or even no trial at all (unlikely, of course).

This *is* politics. That's all it is, through and through, on both sides (and down the middle). Politics started this, it's politics right now, and the final decision will be reached politically, and will influence our policies into the future. Why fake shock and horror that one side wants a less unfavorable position?

Bush's proposal of a simple interview is essentially a counteroffer to some senatorial proposals of a public trial with witnesses (but not the Senate) under oath. Both are ridiculous extremes -- but one is a response to the other.
3.21.2007 12:54pm
rarango (mail):
Justin: true enough about supermajorities for impeachment, but is it not true that any bill the president can veto requres a supermajority to override?

My purposely sarcastic point upthread was to suggest there were more important priorities with which the congress could be dealing (and I do acknowledge the philosophical points about independent judiciary and all of that.) Almost any issue, of course, can be transformed into a philosophical issue that could threaten the republic; however, in the scheme of things, I think time and effort spent on this particular issue is rather a waste of time. But that is strictly my opinion.
3.21.2007 12:57pm
Bruce Hayden (mail) (www):
I think that the reason that the Administration is willing to go to the wall here has little to do with the merits, and a lot to do with the next Congressional elections. The Democrats took control of the House for the first time in 12 years, by winning a number of swing and even Republican leaning districts. And the current House leadership is doing almost all it can to drive those seats back to the Republicans in 2008. I don't think that many of us really believed that the Democrats in Congress could actually be more corrupt than the Replicans were when in power, but to many, they appear to be. Add to this, turning a routine political firing and hiring into a criminal matter while in the midst of conducting a war? That won't lose votes in dark Blue districts, but those aren't the ones likely to shift back to the GOP in 2008.

The other thing though is that President Bush (43) seems to be very careful about maintaining the presidents perogatives and power vis a vis Congress and the courts. It is as if he looked at those powers as a sacred trust that he needed to pass on to his successor undiminished (or, even better, strengthened). We saw something very similar when Congress was investigating the NSA TSA program.
3.21.2007 1:01pm
Mark Field (mail):

The other thing though is that President Bush (43) seems to be very careful about maintaining the presidents perogatives and power vis a vis Congress and the courts. It is as if he looked at those powers as a sacred trust that he needed to pass on to his successor undiminished (or, even better, strengthened).


That's the argument Nixon made. Whatever he did wasn't for him, it was for "future presidents".


I don't think that many of us really believed that the Democrats in Congress could actually be more corrupt than the Replicans were when in power, but to many, they appear to be.


I think such a conclusion reflects partisanship rather than informed judgment. The new Congress has been in power for all of 3 months, compared to 12 years for the Republicans. It would be hard to more corrupt with just 2% of the opportunity.


One of those fired by Clinton was running an investigation what involved his wife


If you're referring to Banks, he had refused to treat the Clintons as "involved" (specifically, as material witnesses).
3.21.2007 1:15pm
loki13 (mail):
dwa,

I believe you missed the point of my post. I am not referring simply to Gerald Ford's (in)famouns quote, but rather to what is taught in most (if not all) ConLaw classes- impeachment is what Congress believes it to be.

There are crimes that Congress would not impeach over. Speeding, for example. Or other malum prohibutum misdemeanors.

There are non-crimes that may be impeachable. A president who drinks himself into a stupor every day and neglects his duties (with the exception of required ones, such as the State of the Union), would likely be impeached without too much of a problem (a high crime, perhaps).

Again, Congress may impeach. And convict. And then they'll have to explain to their electors why they did so. Impeachment is an extraordinary remedy granted to Congress as an ultimate check on executive power, and as such is the big stick that should not be used except in extraordinary circumstances. It was for this reason that Andrew Johnson survived.
3.21.2007 1:20pm
FantasiaWHT:

I used to think this, until it was pointed out to me that obstructing justice, and perjury, are ALL ABOUT making it impossible to prosecute an underlying crime, or even to determine whether that crime was even committed.

So to limit obstruction/perjury charges to cases with underlying crimes charged, is basically to *reward* perjurers and obstructors.


Yep, I understand this counterargument. In my mind, those negatives don't outweigh the negative results from allowing these perjury/obstruction charges. Especially when the acquittal/dismissal of the underlying crime is NOT based on the alleged perjury/obstruction.

It's too easy for mistakes/forgetfulness/simply not knowing to be seen as an intentional cover-up. The idea that in these criminal trials there was no REASONABLE doubt that they weren't intentionally lying seems patently ludicrous to me.
3.21.2007 1:26pm
Paddy O. (mail):
Justin, I'm not a lawyer. That's sort of my point of asking. In the post it was mentioned this would be bad for Bush. But if the arguments rely on nitpick political interpretation of debated incidents that on the surface seem quite legal (Bush can fire US attorneys), and then the law breaking comes in how Bush responds to a partisan congress I'm not sure there's going to be a great deal of fallout. Especially if Congress itself does nothing positive to help it's own image. The pork added to the defense bill suggests this may not happen.

Nixon was in trouble because there was a sexy break-in. Spies, and burglars, and nasty language, and political attacks against the opposing party all were better than fiction. It was a rousing tale. Nixon was a weasel with a lot of skeletons.

Bush has major issues. But, it seems it's all going to boil down to whether he had the authority to do what he did, even if people dislike the reasons. Unless you can explain it with a bit of flair besides referring me to read up on something I have no idea how to read up on, then it's just not going to make for a grand scandal.

Clinton had sex. Nixon had bungled burglars. Bush has what? Arguments with those who politically despise him? Not sexy.

Bush is gambling here that it's so not sexy that Congress is going to get even worse coverage. Because from my seat there's nothing to this other than political posturing on both sides.

Obstructing a clearly partisan investigation (even if there are some merits) just doesn't stand out enough to be worth the fight. And in 2008 Republicans, with new candidates, will be able to run against these present Democrats with charges they do nothing but whine and play politics. And unless Congress finds a real cause, the Republicans will be absolutely right.

I think Bush is comfortable with this.
3.21.2007 1:37pm
DrGrishka (mail):
Justin,

Both Nixon v. US and Clinton v. Jones involved disputes between the Executive and the judicial branches. Thus, courts were already involved. This is a dispute between Congress and the President and there is no need to draw in a third branch. If Congress does not think that this is important enough to take the big guns out, they should not be able to get the courts to help them avoid unpalatable choices. If they do think that this is important enough, then let them get the guns out.
3.21.2007 2:14pm
Bob from Ohio (mail):
US v. Nixon was a criminal case. The SC recognized the existence of Executive Privilege but said it had to yield to a criminal investigation.

Here, we have a political dispute between Congress and the Executive. Since the overriding policy in favor a criminal investigation is not present, who knows how the Courts will balance the need of Congress to investigate and the need of the Executive to keep advice private from his personal staff.

Perhaps they will use the political questions doctrine and decline to rule at all. After all, Congress can use other means (impeachment, cut offs of funds) in theory at least to get its way.

As for its political impact, will keeping it in the headlines really affect the President's core supporters? Due to Iraq, his support has already been striped down to the bare bones. The perception among many of those supporters is that this is just political.
3.21.2007 2:15pm
Porkchop (mail):
Okay, now I'm getting confused. When did we start talking about impeachment? This is not a tempest in a teapot, but it is not Hurricane Katrina, either, at least not yet,

Congress can investigate virtually anything in the course of determining whether and what legislation is appropriate. Congress may, for example, want to change the way US attorneys are fired. The Senate has already passed a bill to change the USA Patriot Act procedure for replacing US attorneys. There is no need for suspicion of an underlying crime before a Congressional subpoena can be issued.

As a cautionary note, all parties ought to recall the mess that resulted when Andrew Johnson was impeached, but not convicted, for violating a law passed by the Radical Republicans that required the consent of the Senate for the removal of cabinet officers. His acquittal was not precedent for anything, but it has been commonly agreed since, as the President and Attorney General have both said, that executive officers, including US attorneys and cabinet officers, serve at the pleasure of the President. They really do! He can fire any or all of them on a whim. Now, the cavalier way these US attorneys were dismissed raises my hackles plenty, but it's not a violation of the law to do it unless it obstructed justice. US attorney positions are political patronage jobs. In most cases, they go to pretty good prosecutors, but it is still all about politics.

As to the firing of US attorneys en masse at the beginning of a new administration, it is really no different than the replacement of cabinet members by a new president. US attorneys are lower-level officials, but they are still presidential appointees. The president gets to pick his team, and he gets to make mid-game substitutions.

Nevertheless, Congress clearly has the right to examine the process and make a determination as to what, if anything, it would like to do about it. Don't lose sight of the fact that there is no constitutional requirement that US attorneys be appointed in a particular way or for a particular term. Congress could change their status from presidential appointees to career civil service if it wanted to (unlikely, but it could be done). They are not principal officers who require Senate confirmation. They could put the various offices directly under the control of Main Justice and assign "district chief prosecutors" in each district if they wanted to. Similarly, they could have the chief judge of each district appoint the US attorneys so they would be independent of the political machinations in Washington.

Article Two, section 2, cl. 2 of the Constitution provides.

"but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

I think it is pretty clear from the quoted material that Congress can structure the system however it wants to (assuming that the President signs the bill or there are enough votes to override a veto). If the present subpoenas might shed light on how to change the system, they can justified as legislatively necessary and will most likely be enforced by the courts. The President can then decided whether to comply a la Nixon, or to refuse. At that point, I suppose, we can start to talk about impeachment, but it is premature now.
3.21.2007 2:25pm
Jules Siegel (mail) (www):
To those who keep making the claim that there is no crime to be investigated, I'd like to ask if you feel that obstruction of justice is not a crime.
3.21.2007 2:38pm
TDPerkins (mail):
Bob from Ohio wrote:

The SC recognized the existence of Executive Privilege but said it had to yield to a criminal investigation.


Except, evidently, if it was Bill Clinton--he can lie and stay in office.

Yours, TDP, ml, msl, &pfpp
3.21.2007 2:41pm
Justin (mail):
DrGriksha and Bob from Ohio -

I'm not sure how your attempt to differentiate would matter. Presumably, Congress would either sue the White House to enforce the subpoenas in US District Court (such as the Cheney FOIA case) - that would lead to an argument of standing, but that's a different argument than political question abstention. Or Congress would enforce the subpoenas under their own inherent authority (McCrackan).

From US v. Nixon:

The Special Prosecutor's demand for the items therefore presents, in the view of the President's counsel, a political question under Baker v. Carr, 369 U.S. 186 (1962), since it involves a "textually demonstrable" grant of power under Art. II.

The mere assertion of a claim of an "intra-branch dispute," without more, has never operated to defeat federal jurisdiction; justiciability does not depend on such a surface inquiry. In United States v. ICC, 337 U.S. 426 (1949), the Court observed, "courts must look behind names that symbolize the parties to determine whether a justiciable case or controversy is presented." Id., at 430. [citations omitted]

....

This setting assures there is "that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S., at 204.

[End of Nixon citation]

Thus, if the Court has standing, the contrasting and diametrically opposed positions of the two parties - that is, the Senate and the President - would satisfy Baker v. Carr. Although *standing* might be an issue - and standing will be a question involving statutory and common law interpretation dependant on facts not yet developed - it is difficult to see how the executive privilege argument could be nonjusticiable due to the lack of a "contravery" or due to the question being overly "political."

Of course, just because the Supreme Court *should* rule one way does not mean that it *will* when nakedly partisan interests are at stake (see Bush v. Gore).
3.21.2007 2:47pm
Justin (mail):
BTW, to those saying that there's no *underlying* crime, I would like to posit that the *underlying* crime was, in the MacKay and Iglesias cases, malicious prosecution, and in the Lam case, corruption and bribery.

Or are those, like outing an undercover CIA agent, not crimes anymore either?
3.21.2007 2:49pm
TDPerkins (mail):
Jules Siegel wrote:

To those who keep making the claim that there is no crime to be investigated, I'd like to ask if you feel that obstruction of justice is not a crime.


Jogn Bad Elk

If someone who knows there is no crime to justify an arrest, or otherwise knows an arrest is unlawful, may resist a police officer making an illegal arrest to the point of killing them, then surely merely obstructing a specious investigation cannot be unlawful in and of itself.

Yours, TDP, ml, msl, &pfpp
3.21.2007 2:57pm
Anonymous Reader:
For those who state that there was obstruction of justice, please provide proof.

Anonymous Reader
3.21.2007 3:03pm
TDPerkins (mail):
Or are those, like outing an undercover CIA agent, not crimes anymore either?


You mean about Valerie Plame, who was not a covert agent, who got her Democratic Party hack husband sent to investigate uranium purchases and who then publicly lied about what he reported Congress for partisan reasons?

That what you man? Gotcha, check.

Yours, TDP, ml, msl, &pfpp
3.21.2007 3:12pm
DrGrishka (mail):
Justin,

Congress can't sue the President anymore than the President can sue Congress. Subpoenas are enforced by the filing of criminal charges by the DOJ (through the US Attorney for DC). obviously, DOJ won't sue itself. Congress has no authority to engage in a criminal prosecution.

As for McCracken, I would like to see Sergeant at Arms attempt to arrest Mr. Rove or Ms. Miers.
3.21.2007 3:18pm
mouldfan:
For what it's worth there are three ways that Congress can enforce its subponeas. I'll start with the two statutory methods.

The first, and arguably weakest, is via "civil contempt," which only applies to the Senate, and specifcally excludes use against Executive Branch officials. See 2 USC 288d (2000). This may, however, be used against Ms. Miers as she is no longer an executive branch employee, but a private citizen. There is precedent for this as back during Whitewater, the Senate used civil contempt to compel the disclosre of notes taken during a White House meeting involving then-counsel William Kennedy.

The second statutory method, is the one metioned by several commentators above. The "contempt of Congress statute, 2 USC 192, 194 authorizes the US Attorney for DC to sumbit to a grand jury for indictment any person found by the Congress to be in contempt. This statute was passed in 1857, but has only been used once against an executive branch official. That was in 1982-83 against EPA Administrator Anne Burford. In that case, the DOJ argued that since prosecution was solely within the discretion of the executive branch the statue is unconstitutional and they didn't have to sumbit anything to the grand jury. They sued to obtain an injunction, however, the DC district court dismissed the case and it was never appealed. See United States v. House of Representatives, 556 F.Supp. 150 (D.D.C. 1983). This issue has never been settled. Ultimately in the Burford senario, Fred Fielding, then WH Counsel for Reagan negotiated a settlement that involved the disclosure of ALL of the documents that Congress wanted from EPA, dispite the fact that Pres. Reagan had claimed "executive privilege."

Finally, there is a procedure known as "inherent contempt," which involves an arrest by the Seargent-At-Arms (or the Capitol Police I suppose), trial at the bar of either the House or Senate, and a full vote of the offended body to convict. Either house of Congress may use the procedure independent of the other's consent, and both have done so previously. The history of inherent contempts dates back to 1793, and its use has been affirmed by the Supreme Court several times. See e.g., Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821); see also McGrain v. Daugherty, 273 U.S. 135 (1927). The procedure hasn't been used since 1935, however, as Congress has preferred to use 2 USC 192, 194 instead.

A final note on "executive privilege." It is, despite what the DOJ says, a qualified privilege and has been so held by every court that has ever reviewed it. See e.g., United States v. Nixon, 418 U.S. 683 (1974); In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997); Judicial Watch, Inc. v. Department of Justice, 365 F.3d 1108 (D.C. Cir. 2004).

In the end, the Court's have tried mightly to stay away from these types of disputes. The best example in the "national secuirty" context was in the 1970s involving AT&T and wiretapping. Twice the dispute between Congress and the PResident was heard before the DC Circuit and twice they declined to decide the case on the merits, opting instead to require further negotiations and compromises between the political branches. See United States v. AT&T, 551 F.2d 384, 385 (D.C. Cir. 1976) [AT&T I]; United States v. AT&T, 567 F.2d 121, 124-25 (D.C. Cir. 1977) [AT&T II]. This is a political, fight, not a court fight, and hopefully it stays that way. Whoever is polticlly stronger will previal, right now I'd say that's the Congress, though they have to be very careful with how they proceed, lest they lose what little advantage they may have.
3.21.2007 3:21pm
TDPerkins (mail):

or Ms. Miers.



That handbag flailing away would make great television.

Yours, TDP, ml, msl, &pfpp
3.21.2007 3:49pm
Mark Field (mail):

You mean about Valerie Plame, who was not a covert agent, who got her Democratic Party hack husband sent to investigate uranium purchases and who then publicly lied about what he reported Congress for partisan reasons?


Is this a test to see how many inaccurate claims you can cram into one sentence?
3.21.2007 4:14pm
Mark Field (mail):

For those who state that there was obstruction of justice, please provide proof.


Nobody's claiming "proof". The claim is that the facts could be interpreted that way, thus justifying additonal investigation.
3.21.2007 4:16pm
Jules Siegel (mail) (www):
Well, here are some things to think about:

It Wasn’t Just a Bad Idea. It May Have Been Against the Law.By ADAM COHEN, The New York Times
The facts about the purge are still emerging. But based on what is known — and with some help from Congressional staff members and Stephen Gillers, a law professor at New York University — it was not hard to spot that White House and Justice Department officials, and members of Congress, may have violated 18 U.S.C. §§ 1501-1520, the federal obstruction of justice statute.

Some crimes that a special prosecutor might one day look at:

1. Misrepresentations to Congress. The relevant provision, 18 U.S.C. § 1505, is very broad. It is illegal to lie to Congress, and also to “impede” it in getting information. Deputy Attorney General Paul McNulty indicated to Congress that the White House’s involvement in firing the United States attorneys was minimal, something that Justice Department e-mail messages suggest to be untrue.

Attorney General Alberto Gonzales made his own dubious assertion to Congress: “I would never, ever make a change in a United States attorney position for political reasons.”

The administration appears to be trying to place all of the blame on Mr. Gonzales’s chief of staff, Kyle Sampson, who resigned after reportedly failing to inform top Justice Department officials about the White House’s role in the firings. If Mr. Sampson withheld the information from Mr. McNulty, who then misled Congress, Mr. Sampson may have violated § 1505.

But Mr. Sampson’s lawyer now says other top Justice Department officials knew of the White House’s role. Senator Charles Schumer, Democrat of New York, said last week that “Kyle Sampson will not be the next Scooter Libby, the next fall guy.” Congress will be looking for evidence that Mr. Gonzales and Mr. McNulty knew that what they told Congress was false or misleading.

Convictions of this kind are not common, but they happen. Just ask former White House aide David Safavian, who was convicted last year of making false statements to a Senate committee.

2. Calling the Prosecutors. As part of the Sarbanes-Oxley reforms, Congress passed an extremely broad obstruction of justice provision, 18 U.S.C. § 1512 (c), which applies to anyone who corruptly “obstructs, influences, or impedes any official proceeding, or attempts to do so,” including U.S. attorney investigations.

David Iglesias, the New Mexico United States attorney, says Senator Pete Domenici, Republican of New Mexico, called him and asked whether he intended to bring indictments in a corruption case against Democrats before last November’s election. Mr. Iglesias said he “felt pressured” by the call. If members of Congress try to get a United States attorney to indict people he wasn’t certain he wanted to indict, or try to affect the timing of an indictment, they may be violating the law.

3. Witness Tampering. 18 U.S.C. § 1512 (b) makes it illegal to intimidate Congressional witnesses. Michael Elston, Mr. McNulty’s chief of staff, contacted one of the fired attorneys, H. E. Cummins, and suggested, according to Mr. Cummins, that if he kept speaking out, there would be retaliation. Mr. Cummins took the call as a threat, and sent an e-mail message to other fired prosecutors warning them of it. Several of them told Congress that if Mr. Elston had placed a similar call to one of their witnesses in a criminal case, they would have opened an investigation of it.

4. Firing the Attorneys. United States attorneys can be fired whenever a president wants, but not, as § 1512 (c) puts it, to corruptly obstruct, influence, or impede an official proceeding.

Let’s take the case of Carol Lam, United States attorney in San Diego. The day the news broke that Ms. Lam, who had already put one Republican congressman in jail, was investigating a second one, Mr. Sampson wrote an e-mail message referring to the “real problem we have right now with Carol Lam.” He said it made him think that it was time to start looking for a replacement. Congress has also started investigating the removal of Fred Black, the United States attorney in Guam, who was replaced when he began investigating the Republican lobbyist Jack Abramoff. Anyone involved in firing a United States attorney to obstruct or influence an official proceeding could have broken the law.


But I doubt that this will convince anyone who still believes that Valerie Plame was not a covert agent and that she sent her husband to Niger. Do you have any proof of those claims?
3.21.2007 4:27pm
kwo (mail):
This entire brouhaha hinges on the suspicion of wrongdoing, specifically the suspicion that the Justice Dept. and possibly the White House fired these 8 USA's in order to obstruct justice. Yet the facts seem to be that only Lam was actually investigating a political ally of the WH (Cunningham and/or Lewis). I understand how interfering with an investigation can be a crime, but I don't see that in this case, since Cunningham is in jail and Debra Yang just said the Lewis investigation was hers (meanwhile the Yang resignation does smell funny, but I think that's a separate issue).

So what are the suspected crimes in the remaining cases? Iglesias got a phone call from Domenici, McKay was being pressured to investigate an election, and I'm not even sure what the Demo accusations are for the other five. Granted Domenici acted unethically, but where's the crime in those cases? Assuming the Democrats could prove a link between Domenici's call and Iglesias' firing, and could even show that the link passes through the White House, what law was broken?

Likewise with McKay: some Republicans thought he should investigate voter fraud, he found no reason to investigate, and then he got fired. Even if the Democrats conclusively prove why he got fired, isn't his decision still a judgement call? Where's the crime in that case? Once again it's unethical, but I don't see the illegality.

I just don't see any "high road" purpose for the subpoenas. The only case that might have any illegality is the Lam case, and as mentioned Cunningham's in jail, so the obstruction charge seems pretty far-fetched, no?
3.21.2007 6:05pm
DrGrishka (mail):
Jules,

I think the fact that Ms. Plame recommended her hubby for the mission has been pretty well discussed and accepted.
3.21.2007 7:42pm
Anonymous Reader:
Mark Field,

I don't feel comfortable with your line of reasoning:

"Nobody's claiming "proof". The claim is that the facts could be interpreted that way, thus justifying additonal investigation."

Anyone can interpret things a number of different ways, that doesn't make it true or should arouse suspicion. I'm pretty sure no one wants to be taken to court or convicted of a crime merely because of an intrepretation of events. Not to say that anyone would be convicted here, but your line of reasoning is wishy washy.

Anonymous Reader
3.21.2007 8:25pm
Mark Field (mail):

Anyone can interpret things a number of different ways, that doesn't make it true or should arouse suspicion. I'm pretty sure no one wants to be taken to court or convicted of a crime merely because of an intrepretation of events. Not to say that anyone would be convicted here, but your line of reasoning is wishy washy.


I think my line of reasoning is pretty much essential. In a great many cases, the fact of a crime is not immediately apparent. Sometimes there is no body, but someone disappeared without explanation. Sometimes facts only become clear when something else happens. As we learn new information, we have to make judgment calls about whether the situation calls for a formal investigation of a crime.

In this case, you have several suggestive facts. First, Bud Cummins (the AK Attorney) told Congress that he got a call from McNulty (I believe it was) which he said would have caused him to open an investigation into obstruction of justice had he still been the Attorney. Second, you have emails which on their face conflict with statements Gonzales gave to Congress under oath. Third, you have Domenici and Wilson admitting to making calls which are dubious at best and which Iglesias considered improper. Fourth, you have muddled and inconsistent explanations coming from the WH regarding the facts. Taken together, these seem sufficient to me to warrant further investigation.
3.21.2007 8:42pm
Justin (mail):
DrGriksha,

These things are handled all the time at the state level in a variety of ways. I'm sure the standing question is not particularly difficult to overcome.
3.21.2007 8:57pm
Jules Siegel (mail) (www):
DrGriksha, I think the fact that Ms. Plame recommended her hubby for the mission has been pretty well discussed and accepted.
Really? Well how about showing me some evidence? You know, like a document, or sworn testimony by an official who actually personally observed it happening. The most you will be able to come up with is a brief email in which she described his qualifications in response to a request from her superior officer.

Let's look at her sworn testimony before Congress.
Transcript of Plame Testimony

REP. STEPHEN LYNCH (D-MA): I want to ask you now under oath: Did you make the decision to send Ambassador Wilson to Niger ?

MS. PLAME WILSON: No. I did not recommend him, I did not suggest him, there was no nepotism involved -- I didn't have the authority. And Congressman, if you'll allow me briefly to just lay of the sequence of events -- (cross talk) --

REP. LYNCH: That was my next question, if you would. You know, I sort of doubted this. If I was going to send my wife somewhere, it wouldn't be Niger , but -- (laughter) -- nothing against Niger , but -- you know.

Please, if you could lay out -- walk us through everything you did that may have been related around the time of the decision to send Ambassador Wilson to Niger .

MS. PLAME WILSON: Thank you, Congressman. I'm delighted as well that I am under oath as I reply to you.

In February of 2002, a young junior officer who worked for me -- came to me very upset. She had just received a telephone call on her desk from someone -- I don't know who -- in the office of the vice- president asking about this report of this alleged sale of yellow cake uranium from Niger to Iraq . She came to me, and as she was telling me this -- what had just happened, someone passed by -- another officer heard this. He knew that Joe had already -- my husband -- had already gone on some CIA mission previously to deal with other nuclear matters. And he suggested, "Well why don't we send Joe?" He knew that Joe had many years of experience on the African continent. He also knew that he had served -- and served well and heroically in the Baghdad Embassy -- our embassy in Baghdad during the first Gulf War. And I will be honest. I had -- was somewhat ambivalent at the time. We had 2-year-old twins as home, and all I could envision was me by myself at bedtime with a couple of 2-year-olds. So I wasn't overjoyed with this idea. Never the less --

REP. LYNCH: I get it

MS. PLAME WILSON: We went to my branch chief, or supervisor. My colleague suggested this idea, and my supervisor turned to me and said, "Well, when you go home this evening, would you be willing to speak to your husband, ask him to come into headquarters next week and we'll discuss the options? See if this -- what we could do" Of course. And as I was leaving, he asked me to draft a quick e-mail to the chief of our Counterproliferation Division, letting him know that this was -- might happen. I said, "Of course," and it was that e- mail, Congressman, that was taken out of context and -- a portion of which you see in the Senate Select Committee on Intelligence Report of July 2004 that makes it seem as though I had suggested or recommended him.

REP. WAXMAN: Thank you, Mr. --

REP. LYNCH: Mr. Chairman, if I could just follow up, because -- it'll just -- 30 seconds.

REP. WAXMAN: Without objection.

REP. LYNCH: Thank you. And I want to go back to that Senate Intelligence Committee hearing. There were three Republican senators who included a more definitive statement which -- now this is a quote. It said, "The plan to send the former ambassador to Niger was suggested by the former ambassador's wife, a CIA employee." What is your reaction to that statement in the Senate report about the genesis of your husband's trip to Niger in 2002?

MS. PLAME WILSON: Congressman, it's incorrect. It's been borne out in the testimony during the Libby trial, and I can tell you that it just doesn't square with the facts.

So that's the extent of the "recommendation." If you have any evidence that she lied, show it.
3.21.2007 9:36pm
godfodder (mail):
Boy, the foolishness on display here is breath-taking. I suppose it makes the idiotic partisan bickering in DC seem less unique, but that's hardly a compelling justification.

Some of you seem to think that it is a wise thing to attempt to criminalize every stray comment, ignorant statement, and difference of opinion that arises during the course of business in Washington. Jesus help us if you get your way. Just because you demonize the other side doesn't mean that they are actually demons! What's more, they too have long memories. What is the purpose of going out of your way to try to destroy people for trivial offenses? I mean beyond just spite.

And people wonder why the killing in the Middle East goes on and on, generation after generation. It's just human nature I guess... the worst of human nature.
3.22.2007 12:02am
Lev:
Justin 3.21.2007 8:41am

Wow. What a substantive response.

How many of those white house staffers testified under oath to congress about the advice they formulated and provided to Clinton about how he conducted and performed his actual duties as President, and about what he said and they said in arriving at his performance of his actual duties?
3.22.2007 1:18am
dwa:

So that's the extent of the "recommendation." If you have any evidence that she lied, show it.


That's rich. Plame couldn't have possibly recommended her husband because...she said she didn't.

Btw, The US Senate Select Committee On Intelligence says she's lying. Proof enough for you?
3.22.2007 11:50am
Jules Siegel (mail) (www):
To dwa:

Here's what the memo actually says:
Officials from the CIA's DO Counterproliferation Division (CPD) told Committee staff that in response to questions from the Vice President's Office and the Departments of State and Defense on the alleged Iraq-Niger uranium deal, CPD officials discussed ways to obtain additional information. [Redacted] who could make immediate inquiries into the reporting, CPD decided to contact a former ambassador to Gabon who had a posting early in his career in Niger.

Some CPD officials could not recall how the office decided to contact the former ambassador, however, interviews and documents provided to the Committee indicate that his wife, a CPD employee, suggested his name for the trip. The CPD reports officer told Committee staff that the former ambassador's wife "offered up his name" and a memorandum to the Deputy Chief of the CPD on February 12, 2002, from the former ambassador's wife says, "my husband has good relations with both the PM [prime minister] and the former Minister of Mines (not to mention lots of French contacts), both of whom could possibly shed light on this sort of activity."
Thus the memo consists of hearsay about recollections by unnamed informants that may or may not have been accurate.

Moreover, I believe the contents have been challenged by one of the sources, who -- if I recall correctly -- stated that it did not reflect what he said and that he wished to enter a correction but was forbidden to do so by his superiors.

I would also ask you to tell me exactly who wrote this document and whether or not its contents were accepted as valid by the entire committee.

So you are offering a dubious document that I know has been challenged by other very well-informed sources and you are using this to impugn the sworn testimony of the one person who knows best what actually happened, and who reports that the opinions express in the memorandum about her role in her husband's trip were refuted in testimony given during the Libby trial.

But given all that, exactly where does this document say that she's lying. It hardly differs from her testimony. It certainly is a far cry from the right wing story that she sent her husband on a junket to Niger.

As you might have guessed by now, I have been around and around about this. Every single item of "proof" presented by right wing sources about Valerie Plame that I've examined turns out to be either unsupported hearsay with no evidentiary value of any kind, or a rotting pile of lies and distortions.

Now let's get back to where this whole thread began.

Why would Congress insist on sworn public testimony recorded on video tape with a full written transcript?


The answer to that question is very simple.

In order to avoid the kind of proceedings that produced the very document that you offer as proof that Valerie Plame was lying under oath.
3.22.2007 2:58pm
DWPittelli (mail) (www):
To Jules Siegel,

Yes, but recalling that Plame, unlike Libby, is not going to be tried for anything, wouldn't the net effect of the Fitzgerald investigation be to make any President see that it is unwise for him to allow his aides to testify, if there is any choice in the matter? When disagreement between witnesses (and now any disagreement between testimony and the most tendentious reading of documents) is likely to lead to charges of perjury, and of Administration complicity in obstruction of justice, how could it be otherwise?
3.24.2007 2:38pm
DWPittelli (mail) (www):
The Supreme Court has also found that executive communications are "presumptively privileged" (1973, 1974), but that in the Nixon criminal case, with a Special Prosecutor, after indictments, with a proper, court-ordered subpoena, the presumption was overcome, but only to the extent that the documents should be available for in camera inspection (i.e., the judge seeing the documents privately, to see if they are relevant to the criminal investigation). From U.S. vs. Nixon:

"We have no doubt that the District Judge will at all times accord to Presidential records that high degree of deference suggested in United States v. Burr, supra, and will discharge his responsibility to see to [418 U.S. 683, 716] it that until released to the Special Prosecutor no in camera material is revealed to anyone. This burden applies with even greater force to excised material; once the decision is made to excise, the material is restored to its privileged status and should be returned under seal to its lawful custodian."

In contrast, today we have no indictment, no subpoena, no judge to inspect the documents, and no suggestion that the documents will generally be kept private unless used as evidence of a crime. (Indeed, I read that the Judiciary Committee has been making them public on its web site.)
3.24.2007 2:43pm
Jules Siegel (mail) (www):
DWPittelli:

You make my point far better than I make it myself.

You presume that mere disagreement among witnesses will suffice for perjury charges. Unfortunately, for your position, the standard for indictment is much higher (except if it involves a Democratic president, of course, who makes a misleading statement in a civil trial entirely unrelated to any underlying crime).

The real issue is not perjury, but truth. The White House is seeks to avoid the criminal charges that the administration knows will inevitably occur if his aides tell the truth.
White House Watch by Dan Froomkin

"And here's a priceless soundbite from press secretary Tony Snow's interview on ABC News yesterday morning:"

Diane Sawyer: "Why not let Karl Rove go up there and show he has nothing to hide? Testify, under oath, and with a transcript? Let everyone see it?"

Tony Snow: "This is what I love, this Karl Rove obsession. Let's back off. First, the question is: Do you want Karl Rove on TV, or do you want the truth?"

Diane Sawyer: "Why can't you have both?"
3.25.2007 9:47pm