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May Congress Order the Justice Department To Prosecute People Who the Justice Department Firmly Believes are Innocent?

I'm not a separation-of-powers maven, but my sense is that the Reagan Administration — and, more recently, the current Administration — have been right to say no. The issue has of course come up in the executive privilege context:

Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege....

Under federal law, a statutory contempt citation by the House or Senate must be submitted to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action."

But administration officials argued yesterday that Congress has no power to force a U.S. attorney to pursue contempt charges in cases, such as the prosecutor firings, in which the president has declared that testimony or documents are protected from release by executive privilege....

The Justice Department is apparently relying on the reasoning given in this Reagan Justice Department Office of Legal Counsel memo; and my sense is that the memo is generally quite correct.

1. Recall that all this is happening because of the existence of the executive privilege — the executive branch's qualified (which is to say not absolute) right to refuse to allow testimony about confidential communications within the branch. The scope of the privilege is complex, as are the circumstances in which it can be overcome. But this is the privilege that the administration is asserting (as best I can tell at least plausibly) to block testimony and production of documents by chief of staff Joshua Bolten and former White House counsel Harriet Miers. The official view of the Justice Department (whether one thinks it right or wrong) is that the matter is covered by the executive privilege, and that Congress therefore lacks constitutional power to order the testimony and production of documents by the witnesses.

2. Now at this point, one way Congress can enforce its subpoenas is by prosecuting the witnesses in federal court for the crime of contempt of Congress (which, despite its name, in this case simply means refusal to testify when ordered to do so). But since federal prosecutions are generally initiated by the executive branch, Congress would have to get a federal prosecutor to get an indictment from a grand jury and then proceed with the prosecution. And there is a federal statute under which Congress claims the power to order prosecutors to do so.

The trouble is that this means (a) stripping the executive branch of its traditional "prosecutorial discretion," which is to say the discretion to decide whether to charge any particular potential defendant, and (b) ordering the executive branch to prosecute someone who, according to the executive branch's official view, is innocent. The executive branch's position is that Bolten and Miers have a good defense to the subpoena, much as a private lawyer ordered to testify about confidential conversations with his client would have a good defense — privilege. They are therefore not guilty of the crime of contempt of Congress.

It seems to me that action (a) is indeed a violation of the separation of powers, because it is placing in Congress's hands — rather than in the executive's — the quintessentially executive decision whether a federal prosecutor would prosecute someone in federal court. Even Morrison v. Olson, which upheld a special statute authorizing a special prosecutor who would be outside the President's authority, does not, it seems to me, go that far; among other things, it does not allow the legislature to mandate a prosecution. And action (b) is likewise solidly against our constitutional traditions, even accepting the propriety of independent prosecutors: When an independent prosecutor is prosecuting someone, I take it he believes (as prosecutors generally should believe) that there is at least probable cause to think that the target is guilty. Here the statute involves Congress ordering the Justice Department to prosecute someone who is, according to the officially decided view of that very same Justice Department, clearly innocent.

3. This having been said, firmly insisting on denying Congress any power to initiate prosecutions of people who resist its commands — commands that Congress wants to argue are lawful — would indeed make it much harder for Congress to make its commands stick. Impeachment, whether of the President or of subordinates, would still be an option, but there are many problems with it. As it happens, though, the law has long recognized two tools that Congress has here, one of which is a deep but narrow exception to the normal principles of separation of powers. Marty Lederman (Balkinization) (who I think likely disagrees with me on parts of what I say above) points to them. "Congress could file a civil action in federal court seeking declaratory relief, or an injunction requiring enforcement of its subpoena." And

Congress can itself prosecute the contumacious official(s) to coerce them to comply — a power that the Supreme Court has affirmed. See Jurney v. MacCracken, 294 U.S. 125 (1935); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821); see also Groppi v. Leslie, 404 U.S. 496, 499 (1972). As Justice Scalia explained in Young v. U.S. ex rel. Vuitton et Fils, S.A., 481 U.S. at 820, this legislative prosecution authority is a constitutional anomaly of sorts — a "limited power of self-defense" for Congress, permissible because "any other course 'leads to the total annihilation of the power of the House of Representatives to guard itself from contempts, and leaves it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it'" (quoting Anderson).

How would such self-help work? Well, believe it or not, the Sergeant-at-Arms of the Senate or House would personally arrest the officials and detain them in the Capitol jail or guardhouse (assuming such a facility still exists). (One of my students last semester noticed this gem on the website of the current Senate Sergeant-at-Arms, Terrance Gainer: "The Sergeant at Arms is authorized to arrest and detain any person violating Senate rules, including the President of the United States." We wondered in class: What could possibly have motivated Mr. Gainer or his staff to post that provocation?) The person would then be tried by the legislative house and, if found guilty (of civil contempt), could be detained until compliance with the subpoena or until the session of Congress ends, Anderson, 19 U.S. at 231, whichever comes first.

Congress has not invoked this authority since 1935 and, as far as I know, has never used it against a current or former government official. (The closest case was probably the contempt at issue in McGrain v. Daugherty, 273 U.S. 135 (1927), which was imposed against Mally Daugherty, a bank president and the brother of resigned and disgraced Attorney General Harry Daugherty, who Congress was investigating in connection with the Teapot Dome scandal.)

This latter approach is something that was a shocker to me when I first learned about it; after all, here Congress would not only order a prosecution, but could actually try and punish the person, though subject to certain limits. This is a deeper departure from the separation of powers than simply ordering the Justice Department to prosecute — in front of a normal judge and jury — would be.

Nonetheless, it is a departure that is sanctioned by longstanding legal doctrines, and (relatedly) by our constitutional history. It may be less pernicious in certain ways, because at least it is a departure that does not force a prosecuting office to prosecute someone who they think is innocent. But more importantly, it seems like the legally authorized approach — the use of a traditional and narrow departure from standard constitutional norms, and not a new departure.

4. My tentative view, then, is that when the Justice Department takes the view that a witness is properly claiming executive privilege, it should not prosecute the witness for contempt of Congress, and any attempts by Congress to force it into such a prosecution are unconstitutional. Congress retains tools to vindicate its interests. It's just that the tool of forcing the Justice Department to prosecute is not a permissible one.

Related Posts (on one page):

  1. May Congress Order the Justice Department To Prosecute People Who the Justice Department Firmly Believes are Innocent?
  2. Executive Privilege and Contempt Prosecutions:
Mr. Impressive (mail):
There is no plausible claim that Ms. Miers is "innocent" of contempt of Congress. She did not even show up!

It is one thing to assert that a particular question cannot be answered because of a privilege, whether that privilege is executive privilege or the 5th Amendment privilege against self-incrimination. But note, when you invoke such a privilege, you still must show up and you have to answer all questions not covered by the privilege. The executives claim is outlandish. It is not the case that they can say with a straight face that all of the questions Ms. Miers would be asked would be covered by privilege. No one can seriously dispute that Ms. Miers has a legal obligation to answer questions not covered by privilege. And no one can seriously dispute that if she had showed up to a hearing, some questions that could and would have been asked cannot plausible be covered by executive privilege. That a privilege exempts an individual from answering some questions covered by the privilege obviously does not mean that it also exempts them from answering questions not privileged. No one, no matter how expansive of a view of executive power they take, can plausible argue that Ms. Miers, now a private citizen, does not have to answer questions not covered by executive privilege!

Ms. Miers failure to show up for hearing is clearly contempt, and there is no plausible arguments to the contrary. The executive branch cannot plausible believe she has no obligation to even show up to a hearing where at least some of the questions would not be covered by privilege. Apparently, Ms. Miers thinks she is so high and mighty in her capacity as a private citizen that she is above testifying to the representatives of the people about even non-privileged questions.

A refusal by the executive branch to enforce a clear violation of the law when requested to by Congress, where, as here, there is no plausible defense or claim of innocence, (because by not showing up, Ms. Miers refused to answer even questions not plausibly covered by privilege) would be a purely lawless act.

Whatever happened to the rule of law?? This administration has demonstrated a pattern of lawlessness and arbitrary exercises of power. We apparently are degenerating into a society that is ruled by arbitrary exercises of whim, not by law. With due respect, Eugene Volokh's view on this matter is not even plausible, must less respectable.
7.22.2007 4:40am
BruceM (mail) (www):
I've always thought Congress has an inherent power to hold someone in contempt. Otherwise how could congress force people to testify? I don't see it as being any different than a judge having the power to hold someone in contempt. Any judge has the inherent power to hold someone in contempt without having to first seek an information/indictment or other permission from the local prosecutor. I don't see it as a separation of powers issue, but rather a slight overlap of powers. Not all powers have to be separate.

And as the first poster noted, Miers completely and utterly failed to show up, there is no plausible argument that she is "innocent" and any declaration by a politicized DOJ to the contrary is just the more reason why an inherent legislative contempt power is necessary.
7.22.2007 5:40am
David Walser:
Mr. Impressive: Ms. Miers failure to show up for hearing is clearly contempt, and there is no plausible arguments to the contrary. [Emphasis in the original. (And, boy, was there a lot of emphasis in the original.)]

That sounds like an almost irresistible challenge. Can anyone play? How about the following:

If Congress issued a summons to the President to testify, would he be required to comply? IIRC, this is an open question. Prior administrations have taken the position that the President and members of his personal staff are not subject to the beck and call of Congress. Usually, the President makes members of his staff available to Congressional committees as a courtesy. I don't believe any prior administration has admitted there is a general obligation for members of the President's staff to honor such requests. Also as a courtesy, Congress usually does not take such testimony under oath.

If the forgoing historical summary is accurate (which I believe it is), why is it implausible for the administration to believe that this may be one of the circumstances in which it is not required to honor Congress' request for testimony from members of the President's staff? Arrangements over when and under what circumstances a member of the administration will testify before Congress are the subject of almost constant negotiations. If it is so obvious that Congress can compel the administration's testimony at will, why does Congress bother negotiating? Shouldn't it simply inform the administration when and where Mr. X or Ms. Y is to appear? What power does the administration have that forces Congress to negotiate the resolution to these questions? The fact these negotiations exist and have been ongoing in one form or another for decades suggests that it's not nearly implausible as you suggest for Ms. Meir's refusal to appear to be anything but unlawful.
7.22.2007 6:05am
David M. Nieporent (www):
I wonder if boldfacing random words makes an argument more compelling. Hmm. Sometimes it works!

Bruce, the question EV was asking was not whether Congress (or a judge) has the power to hold people in comtempt, but whether Congress has the power to force the DoJ to prosecute for contempt. And as a practical matter, how could you force someone to prosecute? Can Congress force the prosecutor to do a good job, too? Can Congress order the prosecutor to call certain witnesses?

As for the boldfaced argument, is it actually a "lawless act" to decline to prosecute someone? If a police officer stops you for jaywalking and says, "Don't do that again," is that a "lawless act" because he didn't write you a citation for a clearly illegal act? If a woman uses a gun for which she doesn't have a carry permit to defend herself against a rapist, and the prosecutor declines to prosecute her on the grounds that it would be utterly insane to do so, is this a "lawless act" or a reasonable excercise of prosecutorial discretion?
7.22.2007 6:11am
Public_Defender (mail):
The dangerous part of the president's position is that he is pushing for an armed confrontation with Congress, and that's something we expect to see in countries like Pakistan.

So what happens if the Sergeant-at-Arms shows up with armed guards to arrest Harriet Miers and armed guards from the FBI order the armed guards from the Sergeant-at-Arms to stand down? Do they shoot it out? Does the Sergeant-at-Arms lay seige to Miers' home? Does the Sergeant-at-Arms withdraw and wait for a time when he can snatch her unaware?

The far more prudent course of action would be for the executive to appoint a prosecutor whose job it is to make non-frivolous arguments to enforce the subpoena.

This is similar to asking the executive to defend a statute that that the executive believes is unconstitutional. As long as there are non-frivolous arguments in support of constitutionality, he exeuctive has a duty to defend the statutue. Any other solution would allow the executive to unilaterally ignore statutes by settlement agreement with like-minded people.

The DC court of appeals and the US Supreme Court are not exactly packed with liberals. Bush would be more prudent to fight the privilege fight using briefs in the courts instead of using guns in the streets.
7.22.2007 7:42am
Mr. Impressive (mail):
David M. Nieporent,

It is no ordinary act of "prosecutorial discretion" to refuse a request by Congress to bring contempt charges where there is no basis for thinking that the defendant is innocent. This is not at all like not prosecuting jaywalking, which is an absurd comparison.

There is a statute which authorizes the Congress to order a US Attorney to bring contempt charges. There is no like statute requiring a local prosecutor to bring a jaywalking case. There is no plausible argument that this statute is unconstitutional when it comes to contempt charges for not testifying on matters not covered by privilege.

That you resort to such a lame comparison that so obviously is inapplicable tends to demonstrate that there are no plausible and respectable arguments on the other side.
7.22.2007 7:42am
Mr. Impressive (mail):
Mr. Walser,

Ms. Miers is no longer a member of the President's staff, but is instead merely a private citizen.
7.22.2007 7:45am
ATRGeek:
As an aside, I agree that Miers not appearing at all before Congress has no plausible justification on the grounds of executive privilege. She is clearly in contempt.

As for Professor Volokh's other arguments:

I don't disagree with much of the substance, but I think he is mistaken about the essence of the OLC argument. First, as I understand it the OLC argument does not actually require the Justice Department to believe that executive privilege was correctly raised. As I noted before, it seems the argument is that there could be no criminal prosecution at all in executive privilege cases, meritorious or not, because it would somehow chill the President from raising the privilege. That is a much bolder claim than Professor Volokh's.

Second, the OLC memo also argues that Congress could not use its inherent contempt powers to enforce its subpoenas (see footnote 42). Obviously that is not a prosecutorial discretion issue, and must depend entirely on the OLC's chilling argument.

So, the OLC's opinion is much broader than Professor Volokh suggests. The basic claim is that there should be no possibility of criminal sanctions for any executive official invoking executive privilege, in no forum and regardless of the merits of the claim.

Yikes.
7.22.2007 7:48am
TruePath (mail) (www):
Leave off the guy for the bold. He isn't trying to make his argument more compelling with the bold merely more understandable and easy to read (well and perhaps thereby more compelling). I certainly find that when an author emphasizes what they think are the key/most forceful points in their argument it's easier for me to skim. Now I personally have been leaning more to italics lately because apparently some people have issues with bold but I still thinks it's no different than adding question marks to indicate questions or periods to denote the end of a sentence.
7.22.2007 7:52am
TruePath (mail) (www):
Question 1: Does the sergeant at arms have the authority to arrest people anywhere but in the capital? Is it restrained in some way or could he really fly off to North Dakota to arrest someone if they weren't testifying?

Question 2: Could congress use it's power to set the court's jurisdiction (or just laws in general) to give itself the power to bring a case against witnesses who refuse to testify?

----

As far as not showing up to testify at all it may be fishy in this case (I really haven't paid enough attention to say) but the president (and his advisers) must have some authority to ignore congressional summons.

Lets just consider the extreme case where a president is faced with a extremely hostile house who wants to disrupt a summit meeting the president is planning to hold with a foreign official. Can they schedule him to testify at that time? If he doesn't show does this mean they have the power to arrest him? What if congress just wants the president to resign? Could congress serve a subpoena on the president to testify every day? or otherwise so frequently request him or his staff to show up they couldn't conduct their job?

So obviously there is some power vested in the executive branch to ignore frivolous congressional subpoenas. Now things get more interesting. Suppose congress wants to subpoena the president for no other reason than to mock his policies and make him look dumb in a forum where they have the upper hand. Can the president refuse this sort of frivolous subpoena? What about his aids? If so then isn't there a plausible argument that there was no purpose in calling Harriet Miers to testify, knowing she would claim privilege, other than to have camera shots of her claiming it?

The view that the president and some sufficiently close staff have the power to ignore congressional subpoenas seems quite attractive to me for these reasons.

--

However, I'm deeply troubled by congresses inability to force a prosecution when the executive disagrees with the charges. This creates the serious risk that a president engaged in criminal wrongdoing could prevent impeachment merely by effectively blocking any inquiry into his actions. Say by letting it be known that the justice department would refuse to prosecute anyone who chose not to testify on the issue and privately assuring them that he would pardon everyone on his way out the door.

As an earlier commenter pointed out the house sergeant at arms business seems disturbing as it runs the risk of armed standoffs between the house police and the president's security force. So if possible I would prefer they did this using their power over the court's jurisdiction or by passing some other law.
7.22.2007 8:13am
TruePath (mail) (www):
Question 3: Does the president actually have the power to avoid this whole issue by signing pardons? Could he pardon people even when they are being charged under the inherent contempt power of congress? In other words could the president counter continued attempts by congress to make his officials testify by pardoning those officials for that contempt each time they don't show?
7.22.2007 8:17am
martinned (mail) (www):
L.S.,

Surely getting an injunction is by far the easiest way to solve this problem?
7.22.2007 8:18am
American Psikhushka (mail) (www):
BruceM-

Any judge has the inherent power to hold someone in contempt without having to first seek an information/indictment or other permission from the local prosecutor.

Huh? In order for a judge to do anything to someone they have to be legitimately in the judge's court. And of course due process has to be followed - Notice, etc.

When judges get their robes they don't get to automatically pick out people on the street and imprison them. This country isn't a bananna republic, although its getting there.
7.22.2007 8:21am
volokh watcher (mail):
EV:

Maybe you would speak to whether the OLC's memo, or more to the point, this Administration, also is of the view that a Supreme Court decision upholding a contempt finding against an executive-privilege claim also falls into an "enforcement-free zone."

After all, who is the Supreme Court to tell the executive to enforce a judgment? Enforcement is, whether of a legislative or judicial law, an essential aspect of the unitary executive.

Andrew Jackson is reputed to have told John Marshall to enforce his own, and the rest of the Supreme Court's, judgment in the Indian-Removal cases.

I see no principled distinction between a SCOTUS ruling -- which is a law -- and a statute directing the executive branch to act against a contemnor.

"Judicial review," you say? Show me where in Art. II it says the president must abide by the Supreme Court's interpretation of the president's constitutional powers?

Or Art. III. Where is there any mention that the judicial branch is the final arbitor?

Sure, since Marbury that's been the way things have worked.

But this Administration has made abundantly clear to anyone willing to see that the Constitution -- that is, our system of government -- operates on a handshake. And sometimes, handshakes are made to be ignored.

It's a real shame Bush's term will be over before he has the chance to ignore a Supreme Court ruling on the Nixonian argument rejected in 1974 that each branch has final say over the constitutionality of its own actions.
7.22.2007 9:15am
David M. Nieporent (www):
TruePath: using boldface for emphasis is fine; that's why it's there. The problem is overusing it.

Mr. Self-Proclaimed Impressive:
There is a statute which authorizes the Congress to order a US Attorney to bring contempt charges. There is no like statute requiring a local prosecutor to bring a jaywalking case. There is no plausible argument that this statute is unconstitutional when it comes to contempt charges for not testifying on matters not covered by privilege.
Sure there is. The "plausible argument" — in fact, I think entirely compelling argument — is that the constitution says that Executive Power is vested in the President of the United States, not in Congress, so Congress can't order US Attorneys to do anything.

And as I said, how can they give such an order? Can they also order him to call certain witnesses? To make certain legal arguments? To appeal if a particular decision goes against him?
7.22.2007 9:26am
paul lukasiak (mail):
Question 1: Does the sergeant at arms have the authority to arrest people anywhere but in the capital?

Yes. In the very first case concerning inherent contempt heard by the Supreme Court, (Anderson v Dunn, 1821) there is a reference to the Sergeant at Arms being ordered to arrest the individual "wherever he be found" (paraphrase). (Unfortunately, judicial language back in that day was even more difficult to understand than it is today, however, my understanding is that this case forms the precedential basis of Congress' inherent contempt powers.

******************

Marty Lederman (Balkinization) (who I think likely disagrees with me on parts of what I say above) points to them. "Congress could file a civil action in federal court seeking declaratory relief, or an injunction requiring enforcement of its subpoena."

It should be noted that the White House asserts that the courts have no authority in this matter -- i.e. that even if such a civil suit were filed, and the courts found for Congress, the Executive Branch would ignore it.

******************

I agree with the good professor that separation of powers requires that deference should be shown to the Executive on questions of prosecution of cases. What we are looking at here is a confrontation between two fundamental principals underlying Constitutional government -- separation of powers vs checks and balances.

IMHO, Bush's actions are designed to destroy the fundamental pricipal of "checks and balances", and the only recourse for Congress is impeachment. The House must empanel a special impeachment committee ASAP, and issue revised subpoenas for Miers, Bolton, etc that make specific reference to the impeachment proceedings. By including "impeachment" in the subpoenas, Congress strengthens its hand substantially, because the likelihood of the Courts deferring to the Executive when impeachment is at issue is far greater than if this was a case of "garden variety" oversight.

Congress should take a two-track approach -- "inherent contempt" against those not currently employed by the White House, and statutory contempt for those who are employed by the White House. Only if the courts decide in favor of the White House on the statutory contempt issue -- or should the White House refuse to act in defiance of the courts, "inherent contempt" procedings should then be instituted against current WH employees.

****************

As to the question of whether a sitting President could be compelled to testify by a congressional subpoena, the answer should be "no" except in cases of impeachment. (and in that case, the President could decline to testify citing 5th Amendment protections.) A reasonable President, when faced with an "oversight" subpoena from congress, would simply go to court to have it quashed -- and I suspect that the courts would agree to do so with very little difficulty. But the important thing is that the President not "defy" the subpoena, but that he address it through the courts. Defiance of a Congressional subpoena, i.e. simply ignoring it, would be an impeachable act.
7.22.2007 9:55am
paul lukasiak (mail):
Sure there is. The "plausible argument" — in fact, I think entirely compelling argument — is that the constitution says that Executive Power is vested in the President of the United States, not in Congress, so Congress can't order US Attorneys to do anything.

But there is nothing in the Constitution that forbids Congress from limiting the discretionary powers of the executive -- and Congress is specifically empowered in Art I Sec 8 To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

The "vesting of Executive power" clause of Article II does not, IMHO, mean that Executive powers cannot be defined and limited by Congress. It simply makes the President the Chief Operating Officer, with Congress acting as the "Board of Directors".

In other words, there is a strong argument to be made that the "statutory contempt" provisions requiring prosecutors to act when ordered to by Congress can limit the President's discretionary powers over prosecutions in this particular case, because the law is "necessary and proper for carrying into execution the foregoing powers."

(Could Congress' power to set up "inferior tribunals" also enter into this equation?)
7.22.2007 10:17am
paul lukasiak (mail):
Question 3: Does the president actually have the power to avoid this whole issue by signing pardons? Could he pardon people even when they are being charged under the inherent contempt power of congress? In other words could the president counter continued attempts by congress to make his officials testify by pardoning those officials for that contempt each time they don't show?

I'd give a qualified "yes" to that statement -- because while the President can pardon someone convicted under "inherent contempt", he probably does not have the power to free that person from Congressional imprisonment as long as that person remains in defiance of a subpoena.

Also, there is the matter of pardons and impeachment procedings -- I don't know exactly what the limiting clause ("except in cases of impeachment") means, and while I suspect that it was designed to prevent the President from excercising his pardon power when someone is/has been impeached and/or convicted, it can also be read to prevent the President from using his pardon power to "obstruct justice" in impeachment procedings by pardoning those who are held in contempt of Congress during such procedings.
7.22.2007 10:30am
runape (mail):
EV's framing of the problem is quite skewed. The problem ought not be considered as whether Congress may order Justice to prosecute people whom Justice "firmly believes" are innocent. The true problem is whether the President may force Justice NOT to prosecute someone whom Justice believes is NOT innocent.

EV's presentation of the problem seems persuasive because this Justice Dept is more in lockstep with the administration than just about any in memory, and it's inconceivable that Gonzalez et al would oppose Bush on this. But it's plausible that many lower level Justice Dept folks (perhaps even US Attorneys?) disagree with Bush. And it's from this perspective that the true tension of the "unitary executive" [sic] [snark] arises.
7.22.2007 10:35am
Orangutan (mail):
I'm probably missing something here.

If I remember correctly, CIVIL contempt does not require a trial or a hearing. Do not pass Go... It's a coercive, equitable power the court uses to compel a party to act, right? Criminal contempt is considered punishment, so it gets due process and all that. The executive enforces the "law," but doesn't the Congress retain its power to enforce equitable measures?

Can't Congress hold Miers in civil contempt, throw her in jail, and then threaten the same to other hold-outs until the Court settles the privilege issue? Wouldn't this avoid the conflict between the branches?
7.22.2007 10:35am
Rhymes With Right (mail) (www):
There is, of course, another troubling aspect to the notion that Congress has the authority to order the Justice Department to prosecute -- by extension, that implies that Congress has the authority to order the Justice Department not to prosecute (ore even investigate) when it believes a crime has been investigated.

Imagine, if you will, making the William Jefferson case simply disappear -- or a Congressional attempt to pull the plug on a special prosecutor who is taking its investigation in a direction a Congressional majority doesn't like.

And these folks claim to be against politicizing the Justice Department? The decision to fire at-will employees is nothing compared to the Congressional attempt to override the separation of powers.
7.22.2007 10:37am
Rhymes With Right (mail) (www):
Paul -- in which case, would you be equally amenable to an executive order limiting the legislative power of Congress, correct?
7.22.2007 10:40am
Mr. Impressive (mail):
David Nieporent,

So, is it your position that the executive has the right to disregard duties assigned to it by law at its own discretion? If a law allocates money to the executive branch on the condition that department X report to Congress on those expenditures, can department X spend the money but not prepare the required report? If Congress allocated X amount of money to a particular end, can the executive refuse to spend that money?

The idea that the executive can disregard the duties assigned to it by law has already been decided against the executive branch. In Train v. United States of New York, a unanimous Supreme Court ruled that President Nixon could not refuse to spend funds allocated by Congress. The President has a duty to "take care that the laws are executed." He does not have a right to violate laws that require particular duties to be performed. In that case, the particular duty to be performed that was required by law was the spending of money. Executive discretion did not include the right to disregard a duty clearly required by law. The President could not exercise his discretion to spend less than was authorized by Congress, where Congress required that the whole amount allocated be spent. Could Congress give the President more discretion? Could they have allocated say, up to $1 million but left it to the discretion of the President to spend less. Of course. But in this particular case, the law did not grant the the President such discretion and he had no choice but to follow the law as it was written.

There is no non-frivolous argument that Ms. Miers is not guilty of contempt of Congress. As a co-equal branch of government, Congress has the right to engage in investigations and coercively gather testimony from private citizens. As part of that core legislative power, Congress has the right to ensure that those who hold the Congress and the people in complete and utter contempt are appropriately sanctioned. Congress has a right to expect the executive to obey the law on this particular matter. Just as in Train, the statute here does not give the executive discretion. Just as in Train, the subject matter in which the law does not grant the executive discretion is a core legislative power of Congress. In Train, that core legislative power was the power of the purse. Here the core legislative power is the ability to engage in legislative investigation and oversight.

The executive has the right to exercise discretion when such discretion is built into the law. But it does not the right to blatantly disregard the law. When it comes to jaywalking, prosecutorial discretion is built into the law. There is no requirement that all instances of suspected jaywalking be prosecuted. And further, jaywalking has nothing to do with a core power of the legislature.

In contrast, in the case in Train v. City of New York, laws granting the executive the authority and discretion to prosecute jaywalking or not, there was no discretion built into the statute. President Nixon had to spend the money that was specifically allocated by law. He could not exercise discretion to spend less than was allocated, because the statute did not grant him that discretion. Period.

To think that the executive has the discretion to disregard the law flies in the face of Article II, which affirmatively requires that the President "shall take care that the laws be faithfully executed." When the President refuses to enforce the law, when there is no non-frivolous argument that Ms. Miers is innocent or has any defense arising from privilege, he is abusing the law, not faithfully executing it.

By completely disregarding the law, the President is violating Article II and the Constitution of the United States which he solemnly swore to uphold.

But this is nothing new for this administration, which holds our Constitution and the rule of law in utter contempt.
7.22.2007 11:08am
paul lukasiak (mail):
There is, of course, another troubling aspect to the notion that Congress has the authority to order the Justice Department to prosecute -- by extension, that implies that Congress has the authority to order the Justice Department not to prosecute (ore even investigate) when it believes a crime has been investigated.

1) The statutory contempt law does not compel prosecution -- it compels prosecutors to present the case to a grand jury, and only if the grand jury issues an indictment would prosecution become (theoretically) compusory. The grand jury process acts as a means of preventing arbitrary and/or improper prosecutions for contempt of congress.

2) There is nothing in what I've written that suggests, or can be rationally extrapolated to suggest, that Congress has the power to stop prosecutions. (It does, of course, have that power -- it can deny funding for prosecutions, for example -- but this is irrelevant to my argument.)
7.22.2007 11:10am
Mr. Impressive (mail):

Congress can't order US Attorneys to do anything.



Actually. Congress can order US Attorney to do something. It can order them to spend all the money that is allocated for a particular purpose. See Train v. City of New York.
7.22.2007 11:13am
paul lukasiak (mail):
Paul -- in which case, would you be equally amenable to an executive order limiting the legislative power of Congress, correct?

Please explain how that logically follows from anything I have written.
7.22.2007 11:14am
David M. Nieporent (www):
The "vesting of Executive power" clause of Article II does not, IMHO, mean that Executive powers cannot be defined and limited by Congress.
Generally speaking (there are some exceptions, like the pardon power) I agree -- but I think it does mean that the Executive powers can't be wielded by Congress.
7.22.2007 11:17am
David M. Nieporent (www):
So, is it your position that the executive has the right to disregard duties assigned to it by law at its own discretion?
No. My position is that:

(a) the power of Congress to "assign duties" to the president is limited; and
(b) the remedy for the president failing to do so is impeachment, rather than Congress taking the executive power upon itself.


To think that the executive has the discretion to disregard the law flies in the face of Article II, which affirmatively requires that the President "shall take care that the laws be faithfully executed."
That begs questions left and right -- like whether the law in question is constitutional in the first place. Consider the following two statutes:

(1) "X is a felony"
(2) "X is a felony; prosecutors shall prosecute people for X."

Your position seems to be that the second statute is different than the first; that the first permits the president to ignore violations if he wishes, while the second does not. But if the president's duty is to "take care that the laws be faithfully executed," then why doesn't his duty to prosecute derive from the "take care" clause of the Constitution, even in the absence of the "shall prosecute" clause of the statute? My response is that prosecutorial discretion is inherent in the executive power. It has to be, because the alternative would be that Congress can wield the executive power and direct the actions of prosecutors.
7.22.2007 11:29am
Bruce Hayden (mail) (www):
To think that the executive has the discretion to disregard the law flies in the face of Article II, which affirmatively requires that the President "shall take care that the laws be faithfully executed." When the President refuses to enforce the law, when there is no non-frivolous argument that Ms. Miers is innocent or has any defense arising from privilege, he is abusing the law, not faithfully executing it.

By completely disregarding the law, the President is violating Article II and the Constitution of the United States which he solemnly swore to uphold.
I have reread Article II twice, and haven't found this. Because of that, could you provide me with the relevant section or paragraph that you are citing?

What I have found is:
The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows:...
and
Before he enter on the execution of his office, he shall take the following oath or affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
Both in Section 1.
7.22.2007 11:32am
paul lukasiak (mail):
Can't Congress hold Miers in civil contempt, throw her in jail, and then threaten the same to other hold-outs until the Court settles the privilege issue? Wouldn't this avoid the conflict between the branches?

I would suggest that "inherent contempt" is the equivalent of "civil contempt" in this case.

****************

And these folks claim to be against politicizing the Justice Department? The decision to fire at-will employees is nothing compared to the Congressional attempt to override the separation of powers.

I think that your concerns are justified to some extent, which is why this whole case is so troublesome. Bush is acting in bad faith, which requires Congress to assert its own powers in good faith to restore "checks and balances." But in doing so, precedent will be created that may eventually lead to another Constitutional crisis if Congress uses those precedents in bad faith. (And, as we saw with the abuse of Congress's impeachment powers in Clinton's case, Congress is certainly capable of using its powers in bad faith.)

As Mr. Impressive has so eloquently pointed out, the President is required to "faithfully execute the laws", and the Miers case is an obvious example of his defiance of that requirement under the general definition of "faithfully". What Bush is doing is not merely "rewriting the Constitution", but rewriting the dictionary as well -- creating brand new definitions for words like "faithfully" that are without precedent.

Ultimately, the best solution is going to have to wait until we have a Democratic Congress and President who can negotiate a new law defining the limits of Executive Privilege, and requiring court review of disputes that may arise under that legislation. Its unfortunate that it has come to this pass, because the Constitution was written with the assumption that all the branches of government would act in good faith -- but from the impeachment of Clinton, to Bush v Gore, to Bush's unprecedented power grabs, the last three decades demonstrate that no branch of government can be relied upon to always act in good faith.
7.22.2007 11:33am
Bruce Hayden (mail) (www):
I applogize to all here. I did a textual search, and Impressive was right. The last line of Section 3 of Article II is:
he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.
7.22.2007 11:38am
Mr. Impressive (mail):
David M. Nieporent,

Obviously, and as anyone who has gone to law school should know, the powers of the three branches overlap somewhat at the edges.

Or is it your position that the Sergeant at Arms of the House, the Senate Sergeant at Arms, and the Capitol Police are unconstitutional?
7.22.2007 11:43am
paul lukasiak (mail):
Generally speaking (there are some exceptions, like the pardon power) I agree -- but I think it does mean that the Executive powers can't be wielded by Congress.

I would agree. The problem is how one defines "wielding". And I would suggest that legislation that prescribes or proscribes Executive action does not constitute "weilding" per se. For support, I would cite the (again) Art I, Sec 8, which empowers Congress


To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.


In other words, it seems to me that Congress is authorized in this section to define how the Executive branch "carr[ies] into execution" the powers granted to it under the Constitution.
7.22.2007 11:45am
Mr. Impressive (mail):

(2) "X is a felony; prosecutors shall prosecute people for X."


Your missing a major point. The argument is that the statute does not give the President discretion and it goes to a core legislative function. Prosecuting X does not usually go to a core legislative function. In contrast, spending all the money allocated (since Congress holds the power of the purse) or laws against contempt of Congress (since Congress has the power to conduct investigations and oversight) go to a the very core functioning and purpose of the legislature.
7.22.2007 11:49am
JBX:
I hope EV will post an update if Marty Lederman responds. I scanned through the comments and saw that he hadn't. The rest of you folks are kind of annoying.
7.22.2007 12:03pm
neurodoc:
I am impressed by the quality of the posts above, and I have nothing of clear value to add to them on the Constitutional law considerations. I would, however, like to offer some comments from my perspective as a citizen of these United States:

There a great many things that one is legally permitted to do, but that one should not do. Joe Welch did not tell Joe McCarthy that he could not do what he was doing, because in fact McCarthy could do it. Welch famously told the senator in effect that he should not be doing what he was doing. ("Senator, have you no decency left...")

Perhaps there is a colorable case for what the Administration seems to be preparing to do, but ought they do it? Has the Executive really been so weakened over the years that it is right that they dig in their heels on this to preserve (increase?) the president's ability to govern on behalf of the country? What/whose interest(s)are they out to serve, and would what they contemplate doing serve them? Would it be about doing the best by this country at present and for the future, or about serving suspect interests (cover up of dubious practices or frank wrongdoing) of the current incumbents?

Do those who think what the Administration contemplates doing is legally permissible think that the Administration should do it? If they do, would they explain how they think the interests of this country would be well served by it, not just the interests of those who currently occupy the White House.

I don't see this contest as a "partisan" one because that might imply that in the end it really reduces to one between Dems and Repubs, whereas I believe it is more one between the public interest on one side and the power and self-interest of a few on the other. What a "gift" Bush would give this nation at a time when it could happily do without it!
7.22.2007 12:13pm
Mark Field (mail):
Excellent post, neurodoc.
7.22.2007 12:44pm
Martin Ammorgan (mail):
Odd. A website bursting to the seams with self-declared "libertarians" who never ever side against the executive interest. Funny that.
7.22.2007 12:47pm
Mr. Impressive (mail):
Michael Dorf has an interesting point of view concerning the strategy Congress should take in trying to enforce contempt of Congress charges against Ms. Miers here.
7.22.2007 12:52pm
Rich Paul (mail) (www):
I'm not sure that the Libertarian philosophy implies a particular spot to draw the line between the executive and the legislative branches of government.

But I thought the Master-At-Arms argument was a novel way of "getting" the moron-in-chief.
7.22.2007 1:21pm
Martin Ammorgan (mail):
Actually I prefer Mr. Kleinmans-Congress should just defund the agencies the Executive branch won't let it oversee. I'm not sure what value as a taxpayer I'm presently getting from the DOJ anyway.
7.22.2007 1:24pm
Smokey:
''Ms. Miers failure to show up for hearing is clearly contempt, and there is no plausible arguments to the contrary.''

It's fun when the very first post is sitting there like a softball on a tee. [And does anyone not have contempt for Congress?]

Let's turn the question around & ask: can the president hold Congress in contempt?

And re:
Question 1: Does the Sgt-at-Arms have the authority to arrest people anywhere but in the capital?

C'mon! Who do you think the Sergeant-at-Arms is, Ronnie Earle, galavanting all over Texas from his geographically small district in Austin, indicting whomever he pleases?

The duties and authority of the Sgt-at-Arms in both Houses comes from their respective rules, which in turn come from their version of Robert's Rules of Order [Parliamentary Procedure]. The Sgt-at-Arms has immediate authority within the Session. Otherwise the Sgt-at-Arms could chase Harriet all over the country - hey, maybe all over the world - and walk her back to the Senate holding her by the ear.

And re the arguments that the President 'shall take care that the laws be faithfully executed,' the Meiers question pales into insignificance compared with the Presdent's deliberate failure to enforce federal immigrations laws. The Constitution states that the president's sworn duty is to repel invasions. The Constitution doesn't restrict its language to 'military' invasions -- which this invasion could well become.
7.22.2007 1:58pm
ATRGeek:
Mandatory prosecution laws are not uncommon, particularly in Europe and Latin America, but also in some state and local jurisdictions as well (eg, with respect to domestic violence). So, near-absolute prosecutorial discretion is not somehow inherent in the executive power.
7.22.2007 2:09pm
Martin Ammorgan (mail):
Mr. Paul- forget theory. Executive means Bush. Libertarians have should have as much business supporting Bush as atheists do calling for mandatory baptism.
7.22.2007 2:11pm
ATRGeek:
By the way, Dorf is right that in disputes about government powers which end up in court, the defendant usually has the advantage, largely because the court could decide not to take action for any number of reasons and regardless of the merits. The Administration certainly has been making use of this fact whenever it can, and it would be interesting if Congress decided to turn the tables.
7.22.2007 2:17pm
markm (mail):
Martin: Noting that Congress seems to be considering an unconstitutional and remarkably stupid means of enforcing its subpoena in this case doesn't mean we support the executive in general. (Aside from separation of powers, etc., ordering someone who doesn't want to prosecute to prosecute is remarkably stupid, unless your goal is to get the defendant acquitted. How would you enforce a "and don't foul it up" order?)

runape:

EV's framing of the problem is quite skewed. The problem ought not be considered as whether Congress may order Justice to prosecute people whom Justice "firmly believes" are innocent. The true problem is whether the President may force Justice NOT to prosecute someone whom Justice believes is NOT innocent.

I believe that was already settled in the affirmative by Nixon's "Saturday Night Massacre". Of course, Congress may then impeach for obstruction of justice...

Further back, someone asked in effect whether the President could suborn his subordinates to refuse to testify, lie, or otherwise obstruct an investigation. Sure he can, just like the Godfather can bump off witnesses. However, if there's anyone with any integrity among the President's men, they'll be testifying to Congress about this obstruction, and any congressman or senator with integrity will then support impeachment, regardless of party. Oh wait, integrity in DC? What was I thinking???
7.22.2007 2:24pm
ATRGeek:
Rich Paul,

It seems to me that a pragmatic libertarian generally would favor strong checks running in every direction between the branches of government, since that would produce the greatest possible friction when it came to using and abusing government power.

So, I could see a libertarian NOT liking mandatory prosecution laws, since prosecutorial discretion historically has been an important check on legislative power. Conversely, I would think a libertarian would also NOT like broad executive privilege claims, since congressional oversight investigations historically have been an important check on executive power.

So, it seems to me that a pragmatic libertarian might reasonably support the inherent contempt approach, which would preserve both prosecutorial discretion and the ability of Congress to conduct oversight investigations. And while the spectacle of various government officials sticking each other in jail because they cannot resolve their disputes might cause others to be concerned about people losing confidence in the government, it seems to me that from a libertarian perspective, such an effect would just be icing on the cake.
7.22.2007 2:27pm
Martin Ammorgan (mail):
Markm-Congress' mandatory prosecution law is hardly unconstitutional. I'll go first: Article I. Section 1: all legislative power is vested in Congress. We have a statute, neither vetoed nor declared unconstitutional, which is presently U.S. law.

Your turn. Executive privilege is provided for in the Constitution in Article ?

It's time to kill this stupid and dangerous doctrine once and for all.
7.22.2007 2:36pm
Dave D. (mail):
...The sham of a bare Congressional majority investigating the firing of at-will Executive employees makes the Executive/Congressional authorities arguments silly. There is no there, there. This is a show hearing, and any trial arising from Ms. Miers so called contempt will be a show trial; of interest, but no value.
..Smokey has it right. Bigger and much more important issues are being avoided while Congress reactivates the Angels-on-the-head-of-a-pin quarrel. Libertarians and other Bush haters have once again attacked the Presidency as a means to attack Bush. And that's not even in their short term interests. Foolish choices are their forte. Their record is intact...100% Fantasy.
7.22.2007 2:36pm
Martin Ammorgan (mail):
IOW we have a statute signed into law by a former Executive which the current Executive-whose Constitutional mandate it is to execute that law-has arbitrarily decided not to faithfully execute it, and it's Congress that's the stupid one?
7.22.2007 2:40pm
MLS (mail):
In discussing this issue, it is important to keep in mind that until comparatively recently information access disputes between Congress and the executive branch have been treated as political, not legal, matters. Since the 1970s there have been ten cases where executive branch officials were cited by a congressional committee for contempt, but there has never been a contempt of Congress prosecution against any executive branch official (nor has inherent contempt ever been used as a method of obtaining information from the executive branch)

As the House explained in its brief in Waxman v. Evans: "Prior to World War II, congressional subpoenas were rarely directed to executive branch officers. Modern practice has seen subpoenas increasingly used with respect to executive officials, and such subpoenas are now routinely used to compel the production of executive branch information which an executive branch agency resists providing upon simple request. If an executive official fails to comply with a subpoena, the committee can threaten to hold the official in contempt, an action that has been taken against a number of cabinet officials in the years since Watergate. In most cases the executive branch has been compelled to produce the information sought when a congressional committee has escalated a dispute to this level. However, because the executive branch controls the machinery for prosecution, there are also incentives for the legislative branch to attempt to resolve the dispute short of an actual contempt referral to the U.S. Attorney. In fact, there has been only one occasion in history where the full House has voted to refer an executive official (EPA Administrator Anne Gorsuch) to the U.S. Attorney for contempt, and this matter was resolved shortly thereafter without a prosecution."
7.22.2007 2:46pm
BruceM (mail) (www):
Bruce, the question EV was asking was not whether Congress (or a judge) has the power to hold people in comtempt, but whether Congress has the power to force the DoJ to prosecute for contempt.

David: Well I understand that, but the question seems premised on the position that Congress forcing the DOJ to prosecute someone is the only way for congress to have some it deems a contemnor held in contempt. Otherwise why ask the question?
7.22.2007 2:47pm
Heh:

Congress' mandatory prosecution law is hardly unconstitutional. I'll go first: Article I. Section 1: all legislative power is vested in Congress. We have a statute, neither vetoed nor declared unconstitutional, which is presently U.S. law.


Ah. But what would the first step in trying to get a law declared unconstitutional? In my mind, It would be to refuse to enforce it. If congress thinks that is wrong, they can take it to court. The defense would be something like "I don't think the law is within the constitution" (but with more supporting details, of course). Then it can work it's way through to SCOTUS and they can make a decision.

Right now in not going through court the biggest gain is that you won't lose, and by not losing you aren't in a position where you look like a sore loser (or alternatively like someone who won't take an answer they don't like regardless of where it came from). In my mind that's the main reason both sides haven't forced this to court yet. And to me that suggests they are both less sure of their footing than their bluster claims :)
7.22.2007 2:55pm
Dave D. (mail):
...The whole thing is coneshaped and the point ends at impeachment. If Congress isn't willing and able to do that, with the reasonable possibility that conviction will follow in the Senate, then this is all an empty gesture and a colossal waste of time. Precious time, important opportunities &vital interests ignored. This is not free entertainment. This is not the Constitutional crises of our time, it's a nuisance suit by the egoists in Congress over NOTHING IMPORTANT. It's all sizzle and no meat. Bush haters are being diddled at the expense of any useful work being done. It's not about government, it's about entertainment of your partisan base and the upcoming election. Pretending it's about the balance of power is just pretending. It's smoke and mirrors. It will be resolved with a wimper.
7.22.2007 2:55pm
SIG357:
A website bursting to the seams with self-declared "libertarians" who never ever side against the executive interest. Funny that.


I don't know that there are any self-declared "libertarians" here who "never ever" side against the executive interest. That aside, the libertarian interest is not fixed in opposition to or support of any particular branch of government.
7.22.2007 3:32pm
ATRGeek:
Dave D.,

Actually, among the other possible outcomes of a congressional investigation is Congress passing new laws.
7.22.2007 3:33pm
Martin Ammorgan (mail):
Sig, I just go by what I read. Apparently, they all think their libertarians here-their term, not mine. Last week it was all about how Libertarians can support the war in Iraq(!). And they had nary a word to say in fall 2006 when habeas was being debated in Congress. We all know how Libertarians detest habeas. And now not one post about Bush's latest EO on torture either. Actions speak louder than words.
7.22.2007 3:44pm
Martin Ammorgan (mail):
Oh, and now it's the Executive Branch who determines whether people are "innocent". See the all cap headline to the FPP. Not even a court of law declares a person innocent, so we are truly blessed to have such an omniscient Justice Department.
7.22.2007 3:49pm
Barbara Skolaut (mail):
Somebody has to say it: If contempt of Congress really is a crime, most of America should be in jail.
7.22.2007 3:50pm
David M. Nieporent (www):
Ah. But what would the first step in trying to get a law declared unconstitutional?
I think Heh raises a key point here. The claim, "The president can't defy this law because it hasn't been declared unconstitutional" -- even if that's a valid claim in the abstract, something I'm not entirely convinced of -- loses serious force in a situation like this where it can only be declared unconstitutional if the president first defies it. If the president decides to obey it, nobody else has standing to challenge it.

Bruce, the question isn't premised on the position that Congress forcing the DOJ to prosecute is the only way for Congress to enforce its contempt, because EV lays out other possibilities in this very post. He asked the question, presumably, because he's interested in the question.


Mr. Impressive:
Or is it your position that the Sergeant at Arms of the House, the Senate Sergeant at Arms, and the Capitol Police are unconstitutional?
Not at all. While it's true that they perform quasi-executive functions, they do so from within the legislative branch -- there's your "overlap." That's different than ordering executive branch officials around.

Is your position that they're superfluous, since Congress can just order the executive branch to do their jobs?
7.22.2007 3:51pm
Laura S.:
I'm shocked by the people seem so eager for this to turn into all out war. Bush has shown himself to be a thoroughly poor leader and incompetent administrator. Yet this confrontation is BDS at its worst.

The rhetoric, the thirst for vindication is out-of-step with the facts. I recommend people sit-down and reflect on this Washington Post editorial which while tangential is yet another instance of this developing problem.

Bush is disgusting, but Congress is plainly descending into nothing more than political brinkmanship that is making it harder and harder for me to reflexively pull the democrats lever come election day. I'm sure they are thinking that the public will be so exhausted by all of this that people will vote "D" just to get some peace; however, I'm starting to wonder whether I'll vote at all if this keeps going.
7.22.2007 3:53pm
SIG357:
Do those who think what the Administration contemplates doing is legally permissible think that the Administration should do it?

Yes.


If they do, would they explain how they think the interests of this country would be well served by it, not just the interests of those who currently occupy the White House.

I think that the interests of the country are well served by maintaining separation of powers and not making the executive branch totally subordinate to the other branches. That is not a new and startling idea, since the last occupant of the White House felt the same way. As have all prior Presidents.

More to the point, if there were a Republican Congress attempting to engage in this sort of fishing expedition against Democrats then the vocal supporters of Congress on this thread would be silent.

This is a political squabble which certain people want transfered to the judicial sphere. It does not belong there. There is not the slightest sign that any crime has been committed which would warrant Congress issuing subpoenas to investigate. Congress is arguably abusing its own powers in this instance. Does that entitle the executive to launch an open-eneded investigation into the activities of Congress? To subpoena the confidential records of the DNC? I imagine there would be a lot of politically damaging stuff to be found in such records. On what grounds would you oppose such a move?
7.22.2007 3:55pm
Martin Ammorgan (mail):
If the president decides to obey it,

We lack such a conditional under the Constitution.
7.22.2007 3:56pm
Little Loca (mail):
You say that Congress has other ways to go after these people or whateverz but you don't say what they are. I mean, they really don't. Congress can only "execute" its orders when the executive is willing; but that can't be the law. Thus, the executive should be forced to prosecute in this case.

Also, you EV makes a huge (and unjustified) "benefit of the doubt" argument when he says that the proscutors believe in those people's innocence. Do they *really*? Also, can the prosectuors' view of their innocence actually always be coextensive with the executive's official stance on the innocence of the parties involved? Not really. The executive heads aren't lawyers and don't have the same prosecutorial ethics to uphold and whateverz, so you can't play the "ethics" card up in this peace when you know dat dat just ain't all dis is about.
7.22.2007 3:57pm
Little Loca (mail):
Also, this whole issue just proves to me that our system really isn't all we make it out to be. It relies on reasonableness and cooperation among the branches. Once one branch (read: Bush and the power hungry executive) decides that they aren't going to play well with others, well, then everything falls apart and (as we see) we don't really have answers for what will happen when push comes to shove, or whateverz.
7.22.2007 4:03pm
Martin Ammorgan (mail):
David N.- What if we had a goofball President who believed along with certain talk radio callers that the federal income tax is unconstitutional. (yes-it's stupid, but lots of people really believe this).

According to you and Professor Volokh, the president could order the IRS agents to cease collecting taxes, because, in Volokh's formulation: the IRS firmly believes the taxpayer is innocent.

Do you really believe we live in a country where nothing could be done while the constitutionality of the tax system was litigated?
7.22.2007 4:09pm
SIG357:
Whatever may be said for excessive bolding, can we agree that deliberate mispelling is intolerable? Hopefully we can agree on dat much.
7.22.2007 4:10pm
SIG357:
Martin Ammorgan

We already have the situation of a President who refuses to enforce existing immigration law or secure the borders. As far as I can tell, the proper solution to such problems lies with "we the people" at election time. We have a republic, if we can keep it.

Yes, nothing could be done while the constitutionality of the tax system was litigated. What do you think could be done differently?
7.22.2007 4:15pm
Public_Defender (mail):
. . . It relies on reasonableness and cooperation among the branches. Once one branch (read: Bush and the power hungry executive) decides that they aren't going to play well with others, well, then everything falls apart . . . .
I used to say my liberal friends exaggerated when they compared Bush to a dictator, but he is acting like the military leader of a banana republic, not the President of the United States.

What happens if Congress tries to send the Sergeant-at-Arms to enforce the subpoena but the President (through FBI agents or some other executive-branch police force) denies that authority? Does the FBI use armed force against the Sergeant-at-Arm's officers the same way the FBI would use armed force to stop a kidnapping?

The prudent thing for the president junta chief to do would be to let the very conservative DC Circuit and US Supreme Court resolve the issue.
7.22.2007 4:19pm
Martin Ammorgan (mail):
Sig-I agree with you re: elections. But in the meantime, call a spade a spade. The President is violating the law and breaching his constitutional duty.

That sophists keep offering such pap as the Justice Dept. gets to declare people innocent helps no one but the wrongdoer.
7.22.2007 4:21pm
Martin Ammorgan (mail):
PD-we've long left theoretical btw. Don't forget Comey's testimony that he sent FBI agents to physically enforce access to the hospitalized Ashcroft.
7.22.2007 4:24pm
Elliot Reed:
"Innocent", which is not even a term of art, makes it sound like the executive sincerely believes the person didn't commit the act they're accused of committing, but what's really going on is that Congress and the executive have a different interpretation of the law. Is it really the case that the executive has a constitutional right always to follow its own interpretation of the law, rather than that of the Congress? That's an invitation to the worst in self-serving interpretations, as has clearly happened here.

Incidentally, how can Congress have an inherent contempt power? How is that not an unconstitutional bill of attainder?
7.22.2007 4:29pm
Mark Field (mail):

Incidentally, how can Congress have an inherent contempt power? How is that not an unconstitutional bill of attainder?


In Tevya's word, tradition. Prof. Volokh quoted the reasoning in his post.
7.22.2007 4:32pm
Public_Defender (mail):
Maybe a more subtle approach for Congress would be to issue an arrest warrant and place it in the same national network that state, local, and federal law enforcement uses to enforce warrants. (I'm sure Congress could make funding for the system contigent on the system being available to Congress.)

Then, the burden shifts to Bush to go court to get the warrant out of the system. Otherwise, the next time Miers is pulled over or questioned by any cop any place, she faces immediate arrest and detention. The warrant can be enforced by any law enforcement any place in the country. My guess is that there are plenty of Democratic county sheriffs or local police chiefs who would be happy to enforce the warrant.

At least we know the Bush Administration is not opposed to indefinite detention without due process.

P.S. (after proof-read): I just re-read "My guess is that there are plenty of Democratic county sheriffs or local police chiefs who would be happy to enforce the warrant." Bush's actions really do put us in banana republic territory.
7.22.2007 4:35pm
Public_Defender (mail):
Incidentally, how can Congress have an inherent contempt power? How is that not an unconstitutional bill of attainder?

Bush is not exactly in much of a position to oppose indefinite detention without due process.
7.22.2007 4:37pm
Mark Field (mail):

If the president decides to obey it, nobody else has standing to challenge it.


If the President refuses to obey it, who has standing to challenge that? Will the caption read "House of Representatives v. Attorney General"? And what is the relief the court might grant? Is it mandate compelling the AG to prosecute? I think that's barred by Marbury v. Madison (has that case ever been cited for its actual holding before?).
7.22.2007 4:38pm
volokh watcher (mail):
Congress has a third option -- besides inherent contempt proceedings (how early Nineteenth Century!) and impeachment.

Congress has the power of the purse.

And as soon as one party gets a veto-proof majority, then that party can enforce a demand for information to the occupant of the oval office. If s/he doesn't comply or chooses to litigate, it's amazing how quickly money for all those lawyers in the White House counsel's office or [fill in the blank] can dry up.

Until such time as a veto-proof majority holds Congress, those defending this administration -- on principle -- should be prepared for a Democrat[ ] president who treats a GOP Congress like crap.

Of course, such brilliant lawyering only denies the citizens of America an open government. But isn't that what Cheney is all about?
7.22.2007 4:47pm
SIG357:
Maybe a more subtle approach for Congress would be to issue an arrest warrant and place it in the same national network that state, local, and federal law enforcement uses to enforce warrants. (I'm sure Congress could make funding for the system contigent on the system being available to Congress.)


And you think that Bush's actions place us in banana republic terriory? What authority does Congress have to issue a warrant for somebodies arrest? Would you be comfortable with a Republican Congress possessing such power and using it to punish its political enemies?
7.22.2007 4:56pm
ReaderY:
Congress has the power of impeachment. But it lacks the power to order a specific prosecution just as it lacks the power to disturb a specific judgment.
7.22.2007 4:59pm
SIG357:
Until such time as a veto-proof majority holds Congress, those defending this administration -- on principle -- should be prepared for a Democrat[ ] president who treats a GOP Congress like crap.


Some people here appear to have been born yesterday, or after 2001 at any rate. But that is no excuse for not at least glancing at the blog you are commenting on, where you would learn that President Clinton made the same agruments for executive privilege that President Bush has made. In other words, Democratic presidents do treat GOP Congresses "like crap".
7.22.2007 5:01pm
Thomas_Holsinger:
I repeat what I said in an earlier thread - the whole fuss is a fund-raising gimmick by Congressional Democrats.
7.22.2007 5:03pm
Anon. E. Mouse (mail):
Mr. Ammorgan wrote:

It's time to kill this stupid and dangerous doctrine [pros. discretion] once and for all.

wow.

So the next time you are pulled over for 72 in a 65, mandatory ticket? No "let off with a warning"?

And the 17yo kid whole gets BJ from his 16yo girlfriend...no discretion to NOT prosecute, so long as the legislature decreed that sodomy with a minor is a 20 year offense. Nope, gotta prosecute and go for the max sentence, even if Congress didn't really "mean it" when they passed the law. (After all, when does Congress get to decide they didn't mean it?)

You folks gotta stop looking at this through the lens of "Bush is Evil." In your zeal to punish Bush the Abominable and all his minions, you are going to wreck a pretty good mechanism.

Don't throw away the stove because you don't like the soup.

//Mandatory random bold and Kool Spellingz.
7.22.2007 5:08pm
Thomas_Holsinger:
Congress has a direct contempt power. The Democratic majority won't use it because they don't have the votes.
7.22.2007 5:11pm
Martin Ammorgan (mail):
Mr. Mouse-the doctrine I was referring to was executive privilege, not prosecutorial discretion. As I understand the law as written here, Congress mandated no discretion to prosecute vel non. Like it or not, that's the law.

Fiat justitia et ruat coelum
7.22.2007 5:22pm
U.Va. 2L:
I'm just bristling for an all-out war because it will prevent Congress and the Executive from doing anything. And the less they manage to get done, the better.
7.22.2007 5:27pm
Anon. E. Mouse (mail):
Mr. Ammorgan,

I apologize, I mis-read your post.
7.22.2007 5:28pm
Kazinski:
Contrast if you will the rather modest claims of executive privilege with the sweeping claim of immunity that both houses of Congress asserted in the William Jefferson search warrant incident.

The President claims that advisor's to the President can keep advice on the lawful exercise presidential power confidential as long as it isn't in order to conceal a crime.

Congress claims that congressional offices are lawless zones where there is "no controlling legal authority", where congressman can conceal evidence beyond the reach of any law.
7.22.2007 5:34pm
Anon. E. Mouse (mail):
Mr. Ammorgan,

As I understand your position, mandatory prosecution is constitutional?

This would mean that Congress (or state legislatures, as long as the state constitution doesn't interfere), could simply add a mandatory prosecution clause to each and every statute it passes.

Thus, there is no prosecutorial discretion except where Congress grants it. Prosecutorial discretion is, then, really a power of Congress, not the executive.

Why do we pretend the AG works for the President?
7.22.2007 5:36pm
paul lukasiak (mail):
More to the point, if there were a Republican Congress attempting to engage in this sort of fishing expedition against Democrats then the vocal supporters of Congress on this thread would be silent.

I doubt it -- at least if a Democratic President were attempting this kind of power grab.

The key here is orderly process when there is a dispute between branches of government. Bush has just declared war on the concept of checks and balances, rather than using the courts to determine what the limits of congressional and executive powers are.

The Miers case is the most egregious example. She is a private citizen. As such, there is no serious argument that can be made that says she does not have to show up in response to a congressional subpoena. If Miers felt that the subpoena was invalid, she had the option of going to court to have it quashed.

But instead of following the orderly procedure, she simply ignored it. And the White House has declared that she won't be prosecuted for ignoring it.

It doesn't matter if you think that the US Attorney's scandal is a stupid fishing expedition, or are convinced that the White House deliberately fired certain prosecutors in a conscious effort to obstruct justice. Congress has the power to issue subpoenas, and no individual has the right to simply ignore that subpoena.

The same thing goes for the documents subpoenaed from the RNC. Either the RNC produces the documents, or goes to court to have the subpoena quashed. They don't have the option of just ignoring the subpoena. Period.

I was personally appalled by some of the investigatory antics of the GOP during Clinton's term (I mean, investigating fan mail for Socks the Cat?). But Clinton never just said "screw you".... he abided by the law, and the traditions of trying to reach accomodation with Congress.

The big difference is that there is now a Democratic majority in Congress that respects the founding principals that underly the Constitution such as "separation of powers" and "checks and balances." The GOP doesn't give a crap about any of that --- to them, power is a tool to be utilized for maximum political advantage, regardless of what it means to fundamental principals of government.
7.22.2007 5:47pm
Martin Ammorgan (mail):
Mr. Mouse, you mean a world where a freely elected legislature passes laws that an executive is sworn to faithfully execute? You're right. That'll never work.

I believe Congress can pass whatever law it wants. The President either vetoes it or a Court strikes it down. Until such time, the law is the law, and our President's duty is to faithfully execute it.
7.22.2007 5:49pm
Martin Ammorgan (mail):
Attn: Professor Volokh and similarly misguided commenters-your legal advice urgently needed in Iraq:

Washington Post, Sunday, July 22, 2007; Page A10:


"Also Saturday, Prime Minister Nouri al-Maliki publicly asked the Iraqi parliament to cancel its August recess or shorten it to two weeks...

"The parliament cannot accept this request because it is unconstitutional," said Khudair al-Khuzai, minister of education and a member of Maliki's Dawa party. The Iraqi constitution specifies a two-month recess for lawmakers between each of the year's two legislative sessions and says the prime minister can choose to extend each session, but for no more than one month.

Mahmoud Othman, a Kurdish lawmaker, said he was upset that Maliki would make such a request.

"It seems that he has no knowledge about the Iraqi constitution," Othman said. "These 30 days cannot be shortened unless you change the constitution."


The mission is clear: Teach those Iraqis how to abuse a constitution.
7.22.2007 6:07pm
TMac (mail):
So Clinton only showed contempt of court.
7.22.2007 6:08pm
Mr. Impressive (mail):
I wanted to clarify something. While there is no plausible and respectable argument that Ms. Miers is innocent of Contempt of Congress (which Mr. Volokh argued), there is a plausible and respectable argument that the executive has discretion to not enforce a statute that it reasonably believes is unconstitutional.

I just wanted to clarify, because saying that there are not even any plausible arguments on the other side is a very strong claim that can only be made with respect to a subset of the arguments presented by the other side.

There is no plausible or respectable argument that Ms. Miers is actually innocent or has any defense whatsoever for her criminal actions. However, whether the statute that allows Congress to direct a US attorney to prosecute an individual clearly guilty of criminal contempt to a grand jury is Constitutional is more tricky.

Train v. City of New York would suggest that Congress can direct the executive when it comes to core powers of the legislature. However, in that case, it was not Congress directly forcing the executives hand, but rather the City of New York which brought the case. Further, Congress has an alternative to forcing the executive to act to vindicate its core power. Congress could and should just order Ms. Miers arrest using the police forces already at its disposal.

I am certainly not saying that the executive would win in a showdown over whether the statute is constitutional, only that there are respectable arguments on that side. The argument that is not plausible, much less respectable is the argument that Ms. Miers is innocent of criminal contempt. Just to be clear.
7.22.2007 6:09pm
Anon. E. Mouse (mail):
Mr. Ammorgan,

Thank you for clarifying. So although you were referring to executive privilege in my earlier quote, you would indeed say roughly the same thing for prosecutorial discretion.

Thus, you would insist on receiving a speeding ticket for 72 in a 65.

Likewise, you would insist that the Georgia teenager be prosecuted to the full extent of the law for having oral sex with his teenage girlfriend.

My own interpretation of "faithfully execute" includes a significant degree of prosecutorial discretion. I see it as a safety valve available to our freely elected executive to protect us from, at best, poorly worded laws, and at worst, an overenthusiastic legislature.

It is a point on which reasonable people may disagree.
7.22.2007 6:12pm
Dave D. (mail):
...People arrested on Federal warrants are turned over to Executive branch law enforcement officers at the first opportunity, often in the field. Your NCIC Congressional warrant isn't going anywhere. Go ahead, all you wannabe Gingriches, furlough Federal law enforcement by stopping their funds. Arrest Ms. Miers, impeach Bush, send the Congressional hall monitor out to perp-walk the President to the Capital Hill dungeon. DO IT ! And Congress' 14% approval rating will be a dim, fond memory. Do you think Nancy and Harry can pull this off ? They can't get anything else done without bungling it. DO IT . A larger Republican majority couldn't convict the last President after he lied to a Federal Magistrate and a Federal Grand Jury. Do you really think this Senate can convict a President for firing 9 political appointees ? DO IT !
7.22.2007 6:16pm
Smokey:
Mr. Impressive:
''While there is no plausible and respectable argument that Ms. Miers is innocent of Contempt of Congress (which Mr. Volokh argued)...''
You better be a little nicer to the Professor. You might flunk out.


Anyway, we shouldn't lose sight of the fact that this whole Meiers issue is built on sand -- the absurd proposition that a president is not allowed to fire an appointee for any reason, or for no reason at all.

They are at-will employees.
7.22.2007 6:27pm
Martin Ammorgan (mail):
They are at-will employees because Congress made them at will employees by statute. Congress could change the law if the "at will" thing was being abused. Except now we'll never know b/c mum's the word.
7.22.2007 6:40pm
Public_Defender (mail):
People arrested on Federal warrants are turned over to Executive branch law enforcement officers at the first opportunity, often in the field. Your NCIC Congressional warrant isn't going anywhere.

That's the case for executive-issued arrest warrants, but what would prevent a friendly local sheriff or police chief from holding Miers until the Sergeant-at-Arms picked her up? Nothing. What's Bush going to do about it? Go to court? He's ruled that out. Send in the Marines or an FBI SWAT team?

As I said, Bush's antics put us in a banana republic situation.
7.22.2007 6:45pm
Mr. Impressive (mail):
Smokey,

Congress has a right to investigate actions that it thinks are merely improper. Such actions do not have to be illegal. Such investigations can inform the law-making function. It also has the right to investigate actions that it thinks are entirely proper. A positive example can also inform lawmaking.

The point isn't whether you, or I, or anyone else would embark on a particular investigation or engage in a particular sort of oversight if we were in charge of a particular Congressional committee. The point is that the Congress has a right to engage in such investigations and oversight, and it has the right to issue subpoenas. When you are issued a subpoena, you are legally obligated to show up. You are also legally obligated to answer any questions not covered by a privilege. That you disagree about whether a particular investigation should be held does not justify engaging in criminal contempt.
7.22.2007 6:52pm
TruePath (mail) (www):
A couple points on the discussion so far:

1) One can believe in in prosecutorial discretion without believing that congress doesn't have the power to remove it. It is an unstated assumption in any criminal bill passed that the prosecutor may use their discretion in enforcing the law even if the law is phrased as an imperative command. The question is just whether congress, by unambiguous statement, can revoke executive privilege.

2) The 'Impeachment or Nothing' crowd overlooks the fact that as a practical matter one needs evidence of serious, willful wrongdoing to impeach a president. Showing he has a different interpretation of executive power, no matter how strained and unreasonable, or even just saying you smell a rat shouldn't be enough to impeach the president.

This leaves us with a serious problem: If congress suspects that serious wrongdoing has occurred how can they get enough information to determine if impeachment is necessery? Ultimately however we resolve the legal nitty gritty a workable balance of power requires some minimally effective way for congress to conduct legislative oversight.

3) Obviously there are limits to what sorts of conditions congress can attach to it's funding allocations. Suppose congress tried to condition their funding of presidential transport and staff on a trip to israel on the president refusing to meet the leader of the PLO? Or what if they passed a funding bill for the DoD that gave them their money conditional on a certain individual being appointed secretary of defense. In order for our government to work at all we need to interpret the constitution using common sense not as an axiomatic framework. Neither the congress nor the president get to exercise their power in a way that clearly undermines core powers of the other branches. I mean if congress could make their funding allocations conditional on whatever they liked their would be no difference at all between executive departments and legislative ones.

Ultimately my feeling is that a congressional attempt to force a prosecutor to try and defeat the president's view of executive privilege should fall under the political question doctrine and the courts should dismiss any such attempt to compel. Maybe the law is technically valid but in real terms it doesn't work. However, there still needs to be some means besides impeachment for congress to get information but I don't know what it should be.
7.22.2007 7:06pm
American Psikhushka (mail) (www):
Orangutan-

If I remember correctly, CIVIL contempt does not require a trial or a hearing. Do not pass Go... It's a coercive, equitable power the court uses to compel a party to act, right?

I don't know if you were responding to my post, but civil contempt requires some measure of due process as well. If it's a party we're talking about, it has to be someone legitimately before the judge's court - who received Notice, counsel, etc. If it's a witness, there's a requirement that the person be served with a subpoena - served Notice.

I don't know if you were assuming Notice so I might be stating the obvious. But Notice is a very fundamental due process right, without it alls kinds of fraud, corruption rights violations, etc. could occur. If there wasn't a requirement for Notice and that someone had to legitimately be before a particular court judges could pick someone off the street and imprison them, claiming "contempt".

Note I'm referring to regular contempt here not contempt used in Congressional proceedings. But since Congressional contempt has to result from ignoring a subpoena, that too at least requires notice.
7.22.2007 7:09pm
volokh watcher (mail):
SIG357:

Some people here appear to have been born yesterday, or after 2001 at any rate. But that is no excuse for not at least glancing at the blog you are commenting on, where you would learn that President Clinton made the same agruments for executive privilege that President Bush has made. In other words, Democratic presidents do treat GOP Congresses "like crap".


Hey, Siggy:

Maybe you missed the 2001 congressional hearings on Clinton's January 2001 pardons. Maybe your were sleeping.

Just so you know, he invoked NO executive-privilege claims.

No, instead he badly weakened the executive branch, and the unitary executive theory, by letting his advisors testify -- as he did fairly regularly during his administration -- about matters of presidential advice.

Sure, Clinton -- and we can never talk about a Republican president doing anything without saying "But Clinton did it, so therefore whatever we do is 'okay'" -- refused Congress's request for information from time to time.

But, let's see Siggy, I don't recall anyone on this blog calling any assertion of executive privilege "astonishing" -- as Mark Rozell, a professor of public policy at George Mason University (bastion of liberalism).

Yes, Sig, whenever partisan Reputhu . . Republicans need to justify Bush/Cheney's enormously destructive conduct, they say . . . but Clinton did it too.

Won't wash, pal.
7.22.2007 7:16pm
paul lukasiak (mail):
I am certainly not saying that the executive would win in a showdown over whether the statute is constitutional, only that there are respectable arguments on that side. The argument that is not plausible, much less respectable is the argument that Ms. Miers is innocent of criminal contempt. Just to be clear.

I would suggest that it would lose, because the statute in question requires that evidence regarding contempt be presented to a grand jury, and prosecution would only result if the grand jury found sufficient evidence for a federal indictment.

The grand-jury procedings ensure that the legislature is not arbitrarily interfering with the proper use of prosecutorial discretion of the executive, and the process is consistent with the Constitutional requirement that laws be "faithfully executed."

The proper means by which a President can challnge a subpoena issued by Congress under its Article 1 Section 8 powers is to go to court to quash the subpoena -- not decide by fiat that private citizens can ignore any congressional subpoena once the President uses the magic words "Executive Privilege".

The President could literally allow people to get away with murder -- because if he can use magic words to stop the enforcement of a subpoena, those same powers can be used to stop the execution of search warrants, arrest warrants, etc. etc. etc.

Again, the wingnuts need to understand that regardless of how they feel about the US Attorney investigation, there is a right way and a wrong way to go about resisting subpoenas based on executive privilege claims. Bush is going about the wrong way --- and if he is allowed to get away with it, well, just imagine what Hillary will do with that power, and tell me that you want HER to be able to do what Bush is doing...
7.22.2007 7:19pm
paul lukasiak (mail):
2) The 'Impeachment or Nothing' crowd overlooks the fact that as a practical matter one needs evidence of serious, willful wrongdoing to impeach a president. Showing he has a different interpretation of executive power, no matter how strained and unreasonable, or even just saying you smell a rat shouldn't be enough to impeach the president.

I would suggest that telling a private citizen to ignore a Congressional subpoena is will wrongdoing. "Executive privilege" does not exist in the Constitution, whereas Congress's power to pass laws necessary to execute its own powers IS in the constitution. Bush has every right to challenge the supoena in court -- Harriet Miers has no right, as a private citizen, to ignore a subpoena, and by instructing her to do so, Bush is involved in precisely the kind of "high crime" (subversion of the Constitutional order) that impeachment was designed to address.
7.22.2007 7:24pm
Smokey:
Well, Mr *cough* Impressive, there's the issue of separation of powers. The Legislative Branch is equal to the Executive Branch -- not superior to it. Same with the Judicial Branch. That's the basic problem with this subpoena: it's illegal [see? Two can play at the 'it's illegal' game].

I look at this non-issue as being as ridiculous as if the Administration issued a subpoena for, say, Sen. Harry Reid to step up front and center, and be publicly cross examined by the evil Karl Rove and Dick Cheney. Sauce for the goose/sauce for the gander.

And keep in mind that this partisan bluster is being instigated entirely by the Democrats. They are making this what it is, and the country -- which doesn't want to hear it -- be damned.

I don't have a problem with Meiers answering questions -- so long as they concern the time frame after she exited the Executive Branch.

The fact that Congress is huffing and puffing proves one thing: they don't have the balls to impeach. So they resort to frantic, red faced arm-waving instead.

BDS at its finest.
7.22.2007 7:27pm
Avatar (mail):
There's a functional feedback mechanism involved - it's the election. If you think that Bush's refusal to cooperate with Congressional investigations is an abrogation of his duties as the executive, well then, put it in front of the people. Win the election, and then go to town - you'll have the appropriate records available and your appointees in the appropriate offices.

(Not that I'm comfortable with the idea of incoming administrations engaging in wholesale prosecution of the outgoing administration. If you're worried that you can't afford to lose power, you might be tempted to avoid doing so through extreme measures, and that sort of thing is emphatically bad for the republic.)

None of the issues we're worried about here are urgent. The country is not going to fall because Bush isn't getting warrants for foreign surveillance, it's not going to fall because he fired a few attorneys. If there's real malfeasance going on, it can be addressed in due time; there's no pressing reason to provoke a constitutional crisis to resolve it now.

I think what we're seeing is a consequence of the echo chamber - people have been telling each other that Bush is an Evil Man who Must Be Stopped for long enough that it's now a justification for whatever they're doing to that end.
7.22.2007 7:49pm
Dave D. (mail):
...So many folks here are striving to get on a train going where they don't want to go; impeachment. Every other privelege case for decades has been worked out. 100% of them. No jail, no impeachment, a wimper. They were so unimportant no one can remember the details. This will die a silent death too. The President doesn't have to explain to a coequal branch of government why he fired the saintly nine because Congress made the law that said he didn't need a reason. Any reason. None. ZIP. Congress can throw Ms. Miers in prison for 30-365 days and fine her $100-1000. That's all they can do. The same folks who approved of a President lying, cheating and perjuring himself are going to throw a retired Presidential lawyer in jail because she won't tell them what her client discussed in confidence. How rich.
7.22.2007 7:58pm
Mr. Impressive (mail):
Smokey,

The bottom-line is that Ms. Miers is a criminal who refused to show up and answer even questions that were obviously not protected by executive privilege or any other privilege.

If you are going to invoke a privilege, you still must show up and answer any questions not covered by the privilege. Ms. Miers did not do this. She is thus a criminal.
7.22.2007 8:07pm
Martin Ammorgan (mail):
Dave D.-

The executive branch has already explained why they fired the U.S. Attorneys. In fact they've explained it more than once in often conflicting accounts.

Since so many top level DOJ people, McNulty, Sampson, etc. have already resigned although they didn't do anything wrong, the mind boggles what they would do if they actually did do something wrong. Seppuku perhaps.
7.22.2007 8:17pm
Kazinski:
Mr. (not so) Impressive,
If Miers is a criminal, please site the criminal statute that she violated. Or has she been designated "criminal" by a bill of attainder?
7.22.2007 8:25pm
Martin Ammorgan (mail):
Kazinski, check out 2 U.S.C. 194 (if you know how to do that)
7.22.2007 8:40pm
TMac (mail):
So being accused of contempt and having the matter referred to a grand jury makes you a criminal?
7.22.2007 8:50pm
Little Loca (mail):
Why is everyone acting like they are adding anything to this discussion. Loca already told you foolz whassup wit all of dis. Whateverz.
7.22.2007 9:02pm
Jim Rhoads (mail):
Precisely how, Paul, does a President's exercising control of the branch of government which the Constitution leaves to his control impinge on any of the powers the Constitution expressly gives to the legislative branchi

While Meiers is no longer an employee of the Executive Branch, she was, after all, the President's personal lawyer. The notion that her communications with him must be, at peril of perjury, be revealed is nowhere to be found in the Constitution. Nor is there anything in the Constitution to prevent the President from exercising the Chief Executive's privilege to prevent his attorney from testifying in any fashion.

While Paul's rhetoric is, as usual, persuasive on its face, I have to challenge him to put up some legal authority contra Eugene's tentative position and the unanimous position of Presidents since the beginning of the republic.
7.22.2007 9:58pm
TyWebb:
EV and other commenters (especially those that support the Bush Administration here):

Even if you agree with the claims of executive privilege by the Administration, what are your thoughts about playing this far out on a constitutional limb? You have to concede we're reaching the outer limits of executive power contemplated at most points in American history, certainly the outer limits of such an executive office exercised in many of our lifetimes. At some point, as many have pointed out, a "showdown" appears possible, if not inevitable. Is this a healthy thing? Or, perhaps, might all sides benefit from a "buffer zone", a comity-influenced refusal to exercise every bit of power they might think they have?
7.22.2007 10:01pm
A Law Unto Himself:
U.Va. 2L:

I'm just bristling for an all-out war because it will prevent Congress and the Executive from doing anything. And the less they manage to get done, the better.

Now THAT (no bold!) is a truly libertarian sentiment!
7.22.2007 10:03pm
SIG357:
Bush has just declared war on the concept of checks and balances, rather than using the courts to determine what the limits of congressional and executive powers are.

I know that it is an article of faith in some quarters that the courts get to decide all disputes between the other two branches. That does not make it so. The courts themselves do not go so far as to claim such power.

Bush has not, as you so dramatically claim, "declared war" on the concept of checks and balances. By defending the privileges of the executive branch from encroachment he is defending that concept.

Let me ask again - would you defend the executive branch if it(he) summoned Schumer, Reid, Clinton and Pelosi to appear under oath and produce all their private correspondence? If they resisted such a move would you claim that they were creating a constitutional crisis by doing so? Or would you say that this was an an example of unlawful use of otherwise lawful executive power?
7.22.2007 10:11pm
SIG357:
You have to concede we're reaching the outer limits of executive power contemplated at most points in American history, certainly the outer limits of such an executive office exercised in many of our lifetimes.

You must be joking. I suggest that you read Professor Volkoh's article before you jump into the comments thread.
7.22.2007 10:13pm
Mark Field (mail):

While Meiers is no longer an employee of the Executive Branch, she was, after all, the President's personal lawyer. The notion that her communications with him must be, at peril of perjury, be revealed is nowhere to be found in the Constitution. Nor is there anything in the Constitution to prevent the President from exercising the Chief Executive's privilege to prevent his attorney from testifying in any fashion.


I'm not Paul, but neither are these difficult questions. First and foremost is the point made in the very first comment: Miers has no excuse for refusing to show up altogether. There's no way to know if she can properly assert a privilege until someone actually asks her a question. Many questions will, indisputably, raise no privilege issue at all (e.g., with whom did you meet on X date?).

This is not some arcane issue. It comes up all the time in civil litigation. Parties cannot just refuse to show up, they have to appear. Once they do, privilege objections can be asserted when proper and the court can resolve any disputes.

Miers may have been the President's personal lawyer (as Clinton learned the hard way, it ain't necessarily so), but that's irrelevant. So far, the White House has not asserted attorney-client privilege, just executive privilege. For that privilege, her status as a lawyer is irrelevant.

Finally, there is "nothing in the Constitution" about a lot of things in our government (among them executive privilege itself). That doesn't mean it's a good idea to force a Constitutional crisis every time one of these issues comes up, as neurodoc pointed out above. I could, after all, tell my wife every time we have a dispute that she has to do it my way or divorce me, but that'd be a hell of a way to treat a marriage.
7.22.2007 10:19pm
Jim Rhoads (mail):
Ty:

I do not want to sound condescending, but history A. Jackson, A. Lincoln, T. Roosevelt, W. Wilson, FD Roosevelt, H Truman and LB Johnson and R Nixon all in their way pushed the envelope in exercising executive authority to the nth degree.

When they thought they were right, comity was the last thing they considered.
Their contemporary critics made many of the same arguments we hear today criticizing the Bush Administration.
7.22.2007 10:22pm
SIG357:
volokh watcher

I don't know what made you focus on Clintons pardons. If you are a "volokh watcher" I expect you are familar enough with the law to know that Clinton made multiple claims of executive privilige throughout his presidency.

Every President from Washington onwards has said exactly the same thing regarding the power of his office. Since many people here either don't know the history, or don't care, here is an overview.
7.22.2007 10:23pm
paul lukasiak (mail):
Let me ask again - would you defend the executive branch if it(he) summoned Schumer, Reid, Clinton and Pelosi to appear under oath and produce all their private correspondence?

absolutely, if there was legal reasons to do so. If they felt that there was not sufficient reason to subpoena their correspondence, they should request a temporary injunction, and a hearing to have the subpoena quashed. THAT is how a society based on laws operates.

And the executive branch would be fully within its rights to cite them for contempt and put them in jail for failing to show up to answer a subpoena.
7.22.2007 10:24pm
SIG357:
It is true that there is nothing explicit in the Constitution about executive privilege. There is also nothing explicit in the Constitution about Congress having oversight power.
7.22.2007 10:26pm
paul lukasiak (mail):
Every President from Washington onwards has said exactly the same thing regarding the power of his office. Since many people here either don't know the history, or don't care, here is an overview.

This is simply not true. Washington resisted giving documents to the House based on the fact that the Senate had sole power to ratify treaties --- and Washington turned those documents over to the Senate.

Jefferson lost a court case where he asserted executive privilege, and was forced to turn over a letter to be used by the defense in a criminal case. (Jefferson claims it was voluntary, but given that he only turned over the letter after the supreme court ruled against him, his words are meaningless.)

The fact is that NO president has come anywhere close to advancing the kinds of claims of executive privilege that Bush is advancing. None. Zero. Nada.

In addition, keep in mind that the executive investigates and subpeonas member of Congress and their staffs on a regular basis. We recently had a "mini" constitutional crisis when the House offices of Rep. Jefferson were raided with a search warrant without notifying the congressional leadership first. But there was no outcry over search warrants issued for Jefferson's home, nor with subpoenas issued to Jefferson and his staff.

It has long been recognized that it is absolutely necessary for Congress to investigate the operations of the executive branch in order for it to do its job. Congress' subpoena power is part of that investigative power -- and Congress and the executive reached accomodation on how questions regarding subpoenas of members of the executive branch should be processed -- and how questions of executive privilege should be resolved.

Bush is literally riding roughshop over centuries of processes and procedures that have stood this nation in good stead, and have maintained the "checks and balances" necessary for a democracy to function.
7.22.2007 10:41pm
paul lukasiak (mail):
There is also nothing explicit in the Constitution about Congress having oversight power.

while the words "oversight" do not appear in the constitution, a simple reading of Article I, Section 8 provides you will all the Constitutional authority you need for oversight.
7.22.2007 10:43pm
Jim Rhoads (mail):
Mark

First, I would not characterize the relationship between a Congress and an Executive each controlled by an aggressive party in opposition to one another as a marriage.

Second, this fight between Congress and the Executive does not seem to me analogous to civil litigation. Pre-trial testimony in civil litigation is governed by the Federal Rules of Civil Procedure wich encourages wide ranging discovery for both parties except in limited circumstances. Meiers testimony is not governed by the same rules. Suggesting the FRCP governs this situation puts the proverbial rabbit in the hat because of the bias in those rules toward disclosure.

Finally, I presume Meiers is fully advised in the premises as to the risks of not appearing before Congress. From what I can see, while she is not risk adverse, she is not unsophisticated either.

My only point here is that I do not think this is the serious Constitutional Crisis that some are positing.
7.22.2007 10:46pm
Smokey:
If Miers is a criminal, please site the criminal statute that she violated.
Let's go a little farther: Some folks here seem to believe that an accusation is the same as a conviction, since the word ''criminal'' has now been attached to the innocent Ms Meiers.

''We'll hang her first, then we'll have a trial!''

BDS. Apparently, there is no cure.
7.22.2007 11:02pm
ATRGeek:
Dave D.,

You seem to have forgotten about United States v. Nixon, as well as Clinton's failed assertion of executive privilege during the Lewinsky investigation.
7.22.2007 11:24pm
Bob from Ohio (mail):

The dangerous part of the president's position is that he is pushing for an armed confrontation with Congress, and that's something we expect to see in countries like Pakistan.


Do you think the House is going to send a posse out?

No one in either side will remotely do anything remotely violent. Get a grip man.

The House has not even issued a citation yet. Seems to me the leaks about defiance are designed to peel off a few Dem votes so no citation issues.

Even if one is issued, the House will confine itself to either 1. speeches or perhaps 2. a civil enforcement action. The last thing, the very last thing, it would do would arrest Harriet Miers. She is not young and what if she would go on a hunger strike, for instance? How would that play with public opinion? Do you think the Dem leadership are complete morons? Because only the very stupid would resort to such risk.
7.22.2007 11:29pm
TyWebb:
SIG

You must be joking. I suggest that you read Professor Volkoh's article before you jump into the comments thread.

Nice ad hominem. I posed an innocent question, phrased non-threateningly. You did not answer it. Rather, you told me to read someone's article, whose name you can't even spell.

Since you seem only to operate in the world of snark, let me work in that realm as well. Here's my question rephrased for someone with as little respect for other people as you obviously carry:

Professor Volokh argues that the executive is within its power, indeed the most inherent power it might have in such situations, to decline prosecution. In the abstract, that might be correct, but since this isn't law school and the real world isn't abstract, we're forced to contextualize. Once rational people have done so, they realize this is simply the latest in a long series of events that demonstrate this Administration's commitment to, at least, utilizing the outer limits of executive authority under the constitution, if not pushing said outer limits. Here are some examples, since you obviously have selective memory:

1. John Yoo and others in OLC have used existing precedent to argue more forcefully for a unitary executive theory of interpreting Article II. The implications of this theory range from prerogatives on interpretation of treaties to which the United States is a party, to the ability to engage in wiretapping without a warrant.
2. The President has issued more signing statements than all other presidents combined.
3. The Attorney General and others have asserted that the executive nature of the US Attorneys' offices makes them subject to dismissal for any reason, including political reasons, even when it impinges on their individual prosecutorial discretion.
4. The Vice President has used various arguments (ranging for executive privilege to lacking executive branch membership) to avoid oversight.
5. Now, the Executive takes a position (regardless of its merit) that forces Congress to do one of three things to have its subpoenas enforced--impeach, go to court (with the attendant problems of overcoming prudential defenses), or send their sargeant-at-arms out to a Liddell Locke partner's house and arrest her.

I am NOT currently arguing the merits of these positions. I know you think it's obvious where I stand on each of them. It shouldn't be. You shouldn't assume things not in evidence. What I AM arguing is, regardless of the merits of each of the positions, does it really make sense to fill the power granted to the executive out in this way? First, it almost assures that the power won't be given back by subsequent administrations. Second, it creates friction and forces other branches looking to exercise checks and balances to do so in a manner that is unseemly. My question focuses not on power, but on propriety. Given how you treat anonymous people on a comment thread, I sincerely doubt you're the type of person to ask about comity concerns.

Jim Rhoads:

I do not want to sound condescending, but history A. Jackson, A. Lincoln, T. Roosevelt, W. Wilson, FD Roosevelt, H Truman and LB Johnson and R Nixon all in their way pushed the envelope in exercising executive authority to the nth degree.

When they thought they were right, comity was the last thing they considered.
Their contemporary critics made many of the same arguments we hear today criticizing the Bush Administration.

Let's take a look at what happened to those presidents, shall we?

Jackson--Attempted Assassination.
Lincoln--Assassination.
T. Roosevelt--While he did broaden the use of executive power, he explicitly, on a number of occasions, recognized the need to submit not only to the limits of the constitution, but to those of duly enacted legislation. I sincerely doubt that Teddy's view on the FISA court, for example, would have been the same as Mr. Bush's.
F. Roosevelt--Overturned so many times by the Supreme Court he attempted to pack it, which was roundly rejected by the legislature and public opinion. Learned to play nice, except with Japanese Americans, leading to a universally criticized policy.
Truman--343 U.S. 579 (1952).
LBJ--Exercise of executive authority in foreign affairs led to espousing of the domino theory and escalation in Vietnam.
Nixon--Impeachment pending, resigned and pardoned.

Before Smokey or anyone else gets on me, I'm NOT advocating assassination or even impeachment in this situation. AT ALL. What I'm saying is tension begets tension. No doubt some presidential prerogatives are important enough to push the envelope. Nixon and Kissinger in China seems a good example. My concern is it seems this administration doesn't have any prerogatives that are subjugated to a good working relationship with the rest of the government. They want to fight on everything. For most of the administration, that wasn't a problem. Likely, with the way the Democratic Congress looks more for TV opportunities than real constructive opposition, it will continue to win these battles. My question is, is that a good thing for the nation?
7.22.2007 11:29pm
Smokey:
Do you think the Dem leadership are complete morons?
Must... resist... temptation. Getting... weak...


I keed!
/couldn't resist
7.22.2007 11:48pm
Dave D. (mail):
ATR Geek.,

Yes, I did forget. Thankyou for the reminder. Both of those Presidents had committed felony crimes. What could President Bush have to hide about the formerly employed U.S. Atty's ? It's been suggested here that he fired them illegally. Other than obstruction of a case, or bribery, I don't think he could. Is there even a hint of either in the testimony so far ? If Congress does prosecute Ms. Miers, will they try and use her as a hostage to force him to abandon his claim of executive privelege ? I can see the You Tube skit of Harry and Nancy standing behind a black hooded kneeling Miers with swords raised even as I type.
Mr. Conyers has convinced Ms. Pelosi to teach Ms. Miers how to talk to respectable folks if it's her last act. The tarbaby is about to get smacked.
Perhaps the Libby conviction has convinced the Bush haters that it doesn't matter what the original investigation was about, thars gold in that thar testimony. But nothing that starts with a non crime can end well for the investigator, in this case, Congress. The " At long last, have you no sense of decency " moment awaits.
7.23.2007 12:08am
ATRGeek:
Dave D.,

Miers can appear and testify without the President doing anything.

As for what the investigation would show: I don't know. That is rather the point of an investigation (to find out what happened).
7.23.2007 12:15am
Mark Field (mail):

First, I would not characterize the relationship between a Congress and an Executive each controlled by an aggressive party in opposition to one another as a marriage.


Well, those of us in the position of citizen have a vested interest in NOT having our elected officials resort to power plays on every issue. That's a sure way to end up destroying republican government. Every government requires some give and take, some good faith on the part of the governors. That's not just for Constitutional reasons -- it's impossible to spell out every single detail in advance -- but for pragmatic ones.

In this particular situation (i.e., Miers), Bush is taking an extremist position. I say that because she refused to appear at all, a manifest contempt. If he were interested in something less than a power play, that wouldn't have happened.


Second, this fight between Congress and the Executive does not seem to me analogous to civil litigation. Pre-trial testimony in civil litigation is governed by the Federal Rules of Civil Procedure wich encourages wide ranging discovery for both parties except in limited circumstances. Meiers testimony is not governed by the same rules.


Of course it's not identical, but the issues are very similar and most of legal reasoning consists of finding comparable situations. Your reference to wide-ranging discovery really dodges my point, because I used the civil litigation analogy only to criticize Miers for not appearing at all. I haven't said anything about the merits, in part because that's not possible unless and until she gets asked an actual question.

Since you raised it, however, it's my view that the bias should be in favor of disclosure to Congress. There are many reasons for that which I'll get into if the situation ever gets that far.


Finally, I presume Meiers is fully advised in the premises as to the risks of not appearing before Congress. From what I can see, while she is not risk adverse, she is not unsophisticated either.


I guess I don't see how this responds to my points or is at all relevant.
7.23.2007 12:16am
Dave D. (mail):
ATR Geek.,

Do you really think that this investigation is to " find out what happened. " ? I do not.
7.23.2007 12:55am
ATRGeek:
Dave D.,

I have no idea what subjective intent the various members of Congress might have. What I do know is that the Administration has been trying to hide how and why these US Attorneys were fired, that so far they have been successful in hiding what really happened, and that as a citizen I would like to know the answers to those questions.
7.23.2007 1:07am
Jim Rhoads (mail):
Mark:

Taking your last observation first, my point is that Meiers chose not to appear. She no longer works for the government, so is not subject to any orders of the President. I presume he let his desires be known to Ms. Miers that she withhol all privileged information, but I also presume that she made the final decision whether or not to appear.

So far as civil litigation is concerned, I did not understand you to argue that it was "identical" but that it was analogous. Even that, though is a stretch. As noted by Ty Webb, Presidents pushing the envelope make some people very angry.

FDR was not known as "that man" because he was accomodating or tactful to his political enemies.

Fully using political power is risky to both the safety and the historical reputation of a President. But deciding when to do so is part of the job description.

I say to you that historically, this situation is hardly precedent setting.
7.23.2007 1:10am
K:
If there is no executive privilege it would seem that Congress can do anything by a simple order. If someone disagrees they can just be locked in the cellar. Lock up any disagreeing SC too!

But if EP is unlimited then Congress may be stopped from issuing any order to the Executive. Their power over private individuals would be unchanged.

I can't see that either situation is good. The SC cases appear to limit the Congress to legitimate inquiries and confinements to the current session. But exactly how is a limit to be enforced?

The proposal that Congress ask for an injunction to enforce the subpeona is a sly way to foist the problem upon the courts. Let the judges lock people up or otherwise punish them for irritating Congress.

A civil suit is a variation of the injunction proposal. Either way the courts are left with the problems of enforcement.

I doubt Congress will up the ante since the AG firings seem legal if not savory. But I often miss big on these political guesses.

Miers should have appeared even if she was going to refuse to testify.
7.23.2007 1:11am
Duke Powell (mail):
I think we all agree that the Courts, the Congress and the Executive are all co-equal branches of Government.

Now a question for all who believe the Executive may not evoke executive priviledge in this instance - What would be your stance if Congress issued a summons for a law clerk of the Chief Justice of the US Supreme Court in order to discuss, publicly, the give and take of a recent court decision?

I think it sounds looney.
7.23.2007 1:33am
neurodoc:
Eugene Volokh: The executive branch's position is that Bolten and Miers have a good defense to the subpoena, much as a private lawyer ordered to testify about confidential conversations with his client would have a good defense — privilege.

Jim Rhoads: While Meiers is no longer an employee of the Executive Branch, she was, after all, the President's personal lawyer.

Mark Fields: Miers may have been the President's personal lawyer (as Clinton learned the hard way, it ain't necessarily so), but that's irrelevant. So far, the White House has not asserted attorney-client privilege, just executive privilege. For that privilege, her status as a lawyer is irrelevant.

Harriet Miers was Bush's "personal lawyer"?! I thought that while Bush may have been the one to chose her for the position she occupied, and while he had the authority to discharge her at any time and for any or no reason, she was always a servant of We, The People while in Washington, never his "personal lawyer." Am I wrong about this?

In what "personal" matters did she represent or advise him? If she did so while employed by the federal government, how did she and he get around all the legal and ethical issues that the rendering of such valuable "personal" services to a superior would raise? Did Miers render those services to him on federal property, during the course of their work day?

I think this matters because the possibility of a claim to attorney-client privilege somewhere in this picture would turn on it. (For purposes of the executive privilege claim, I do think it irrelevant that Ms. Miers happens to be an attorney and was employed as one in the White House, since the executive privilege claim being asserted would be as legally sound or unsound irrespective of whether or not she were an attorney.)

If Bolten and Miers have a good defense to the subpoena, it is not the same one as a private lawyer ordered to testify about confidential conversations with his client. "Privilege," but very different types, the differences between them very significant.

If those more knowledgeable about "attorney-client" privilege as it would or would not apply under these circumstances think I am wrong, I hope they will say so, explaining exactly how I am wrong.
7.23.2007 2:29am
David M. Nieporent (www):
I believe Congress can pass whatever law it wants. The President either vetoes it or a Court strikes it down. Until such time, the law is the law, and our President's duty is to faithfully execute it.
An unconstitutional law is void ab initio. It is not the case that it's "the law" until a court "strikes it down."

Seriously, do you think that if Congress, say, passes a law making it illegal to criticize the war effort, that this is "the law" until a court says otherwise, and the president has a legal obligation to enforce it?
7.23.2007 5:32am
paul lukasiak (mail):
If there is no executive privilege it would seem that Congress can do anything by a simple order. If someone disagrees they can just be locked in the cellar. Lock up any disagreeing SC too!

But if EP is unlimited then Congress may be stopped from issuing any order to the Executive. Their power over private individuals would be unchanged.


The problem here is not one of "executive privilege" or Congressional oversight --- the problem here is one of the executive assertion that it has absolute prosecutorial discretion -- and that not even the courts can question that assertion.

If carried out, this would clearly be a "high crime" as defined under the constitution, because it places the executive literally above the law.

Under the pre-Bush power grab, the president can make any claim of executive privilege he wants to, but in doing so much answer subpoenas with that claim. If congress disagrees, it can go to court, where the impartial third branch of government can decide between the competing claims.

The Bush power grab is an assertion that no one need to respond to a legally issued subpoena, that Congress has no power to compel testimony after the issue has been reviewed by the Courts, and that the Courts have no jurisdiction in these matters -- despite the complete lack of any Constitutional basis for the claim of Executive Privilege.

This isn't about the US Attoney scandal, its about rule of law and checks and balances. It literally forces Congress to resort to impeachment, and to use its inherent contempt power -- to lock up anyone and everyone who refuses to testify on the basis of executive privilege, and tell the courts that they have no jurisdiction over congressional actions done pursuant to their constitutionally delineated powers.

The wingnuts think that because they believe that the US Attorney scandal is some kind of partisan fishing expedition, that the president is justified in his actions. They can't see beyond their own hyper-partisan biases to what is really happening here -- not merely an assertion of executive privilege, but an assertion that the Executive Branch is above the law.
7.23.2007 7:39am
ATRGeek:
Duke,

As always, it depends on the circumstances. Suppose, for example, we had evidence that a certain U.S. Senator had a political interest in the outcome of a case, and that this U.S. Senator had contacted the law clerk in question to discuss the case while a decision was pending, and that the law clerk had then drafted the opinion in a way which favored the U.S. Senator's interests. Could Congress investigate this matter? I'd say yes.

Now, we might still view what the law clerk actually discussed with the Chief Justice as privileged, at least until we had evidence that the Chief Justice himself may have been involved in wrongdoing. But I think we could reasonably limit that privilege to discussions between the clerk and the judge, and not extend it, say, to the discussions between the clerk and the U.S. Senator.

Incidentally, on a related point, even if one deems the President acting in his official capacity as the White House Counsel's client, the attorney-client privilege also only applies to confidential communications between the client and the attorney. For example, it does not apply to communications between the attorney and third parties. That is why the President cannot assert attorney-client privilege to keep Miers from testifying about any discussions she may have had with other people.
7.23.2007 7:52am
a knight (mail) (www):
The document listed for download was dated May 30, 1984, and signed Theodore B. Olson, Assistant Attorney General, Office of Legal Council. I am eminently unqualified to judge the legitimacy of the privilege claims laid out in it. I do feel that other data from the Reagan Administration regarding the Attorney General need to be considered in context though. (Note: this in not meant to cast dispersions on Mr. Olson, as I have never seen never any indication he was a party to this)

Attorney General Edwin Meese III became directly involved in the Reagan Administration's secret plan to sell weapons to Iran in January 1986, when he was asked for a legal opinion to support the plan. When the secret arms sales became exposed in November 1986, raising questions of legality and prompting congressional and public scrutiny, Meese became the point man for the Reagan Administration's effort, in Meese's words, "to limit the damage.

Meese began with an attempt to justify legally President Reagan's failure to notify Congress of the arms sales for more than a year. His efforts led to a November 21-24 fact-finding investigation focused on the President's involvement in the November 1985 HAWK missile shipment to Iran.

The Select Iran/contra Committees criticized Meese for departing from "standard investigative techniques" in his fact-finding mission because he failed to protect National Security Council documents, many of which were altered or destroyed as he conducted one-on-one interviews with senior Administration officials without taking notes. The Select Committees also faulted Meese for "incorrectly" stating in his November 25, 1986, press conference, at which he disclosed the Iran/contra diversion, that President Reagan did not learn of the 1985 shipment until February 1986. The Select Committees viewed this as an isolated error. It was not.

Meese was conducting the November 21-24 investigation as "counselor" and "friend" to the President, not as the nation's chief law enforcement officer. Independent Counsel concluded that he was not so much searching for the truth about the November 1985 HAWK shipment, as he was building a case of deniability for his client-in-fact, President Reagan. By this time, Meese knew that the 1985 HAWK transaction, in which the National Security Council staff and the Central Intelligence Agency were directly involved without a presidential covert-action Finding authorizing their involvement, raised serious legal questions. The President was potentially exposed to charges of illegal conduct if he was knowledgeable of the shipment and had not reported it to Congress, under the requirements of the Arms Export Control Act (AECA) and in the absence of a Finding. But Meese apparently never questioned the President himself about whether he approved or knew about the November 1985 HAWK shipment. When Meese got answers in his inquiry that did not support his defense of the President, he apparently ignored them, as he did with Secretary of State George P. Shultz's revelation on November 22 that the President had told him that he had known of the HAWK shipment in advance.

Final Report of The Independent Counsel for Iran/Contra Matters - Volume I: Investigations and Prosecutions
Lawrence E. Walsh; Independent Counsel; August 4, 1993; Washington, D.C.
Part IX: Chapter 31-Edwin Meese III (footnotes 1-3 omitted)


The highest law enforcement officer in the United States government 'moonlighted' as a fixer for possible illegal actions by the executive branch, his employer. In the course of this 'moonlighting', the Attorney general, who had extensive prosecutorial experience, did not protect NSC documents for evidentiary purposes, but instead altered and destroyed them during the course of his extracurricular work. He then publicly misstated facts discovered in his investigation three days later at a press conference. The Chapter continues to detail a great deal more questionable behaviour by the Attorney General and staff. Throughout the investigation many claims of executive privilege and independence of governmental branches were asserted, at least in some instances, only to cover administration dishonesty, and/or illegal actions.

The Executive Branch does not exist without the constraints of the only document that legitimises its actions. The President and his administration are not above the law.
7.23.2007 8:10am
paul lukasiak (mail):
Anyway, we shouldn't lose sight of the fact that this whole Meiers issue is built on sand -- the absurd proposition that a president is not allowed to fire an appointee for any reason, or for no reason at all.

why, given evidence that the firings were done in order to create a justice department that prosecuted cases based on a partisan agenda (rather than a rationally determined law enforcement agenda?). The President has a Constitutional duty to see that the laws are faithfully executed -- firing prosecutors who are "faithfully executing" the law in order to replace them with prosecutors who will use their prosecutorial powers to advance a partisan agenda means that the President is acting contrary to the Constitution.

In other words, the Presidents power to hire and fire is not unlimited, but is constrained by the requirement that he faithfully execute the law.
7.23.2007 9:31am
Martin Ammorgan (mail):
David N.

Sorry pal but your "void ab initio" doctrine is complete nonsense. Please cite "my ass" as your authority next time you make stuff up. Take McCain-Feingold. Bush opined it was unconstitutional and signed it anyway (another breach of duty but who cares). The Supreme Court upheld it. I myself think it's unconstitutional, but who cares, it's the law.
7.23.2007 10:01am
MLS (mail):
Lets stipulate that there is no consensus on the merits of the executive privilege claim here (which is not surprising given that there is virtually no judicial authority on the question of when a President can refuse to provide information to Congress). Leaving the merits aside, these are the questions as I see them regarding the prosecution of a hypothetical contempt resolution. (With all respect to our host, I do not see the question of whether the Justice Department or the USA "believes" or "firmly believes" in the witness's innocence as one of those questions). Thoughts?

1. Does the statute (2 USC 194) require the USA to refer a contempt resolution to a grand jury?

2. Does the statute require the USA to prosecute if an indictment is returned? (A related question would be whether the statute requires the USA to do his best to secure an indictment).

3. If the statute is interpreted to require either (1) or (2), does it violate the Constitution as applied to a witness who has asserted executive privilege in accordance with the President's instructions?

4. If the USA were to prosecute a witness for contempt of Congress, would the witness have an absolute defense if her refusal to testify were based on an assertion of executive privilege in accordance with the President's instructions?

5. If the answer to (4) is no, would that answer change if the assertion of executive privilege were found to be in objective good faith (ie, based on an objectively reasonable claim of privilege)?

6. Should the resolution of questions (4) or (5) depend on the availability of alternative mechanisms (a civil contempt action or inherent contempt followed by a habeas petition) to obtain a judicial resolution of the underlying merits of the executive privilege claim?
7.23.2007 10:07am
Crust (mail):
May Congress Order the Justice Department To Prosecute People Who the Justice Department Firmly Believes are Innocent?
How do we determine who the Justice Department "firmly believes" innocent as opposed to who they merely believe innocent? Or for that matter who they say they believe innocent? And which category does Miers fall in?
the crime of contempt of Congress (which, despite its name, in this case simply means refusal to testify when ordered to do so)
Why "despite its name"? Certainly Miers' simple refusal to even show up to Congress and invoke privilege seems to me to be a clear example of the ordinary English meaning of "contempt".
7.23.2007 11:03am
paul lukasiak (mail):
answer to MLS:

1) yes... the language of the statute states that the case is to be presented "to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action. "

2) No. This particular statute does not require prosecution upon indictment. (However, US Attorneys are sworn to "faithfully" execute/uphold the law -- failure to prosecute -- or failure to present the evidence in an appropriate manner to the grand jury -- would be a violation of his/her oath of office.)

3) I would say no, because Congress is specifically empowered To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. In other words, the Constitution empowers Congress to define and limit the prosecutorial powers of the Justice Department -- and to define and limit the discetionary powers of the President when it is "necessary and proper" to do so in order for Congress to carry out its duties.

4) No. Witnesses do not exercise executive privilege, the President does. A witness is compelled to be fully responsive to a subpoena absent a legal determination that s/he is not required to respond (notwithstanding, of course, claims made under the fifth amendment.)

5) No. While "good faith" may be taken into account when determining the sentence for contempt, there is no "good faith" exception that allows a non-responsive witness to avoid prosecution should Congress find the person in contempt.

6) No. The existence of alternate courses of action to enforce the law should not require the pursuit of an alternate course of action if Congress finds statutory contempt to be the appropriate enforcement mechanism.

Ultimately, it is the President's responsibility to prove that information is privileged when documents or witnesses are subpoenaed. Congress's Constitutionally delegated powers to make the laws, and to determine its own rules and procedures, place the burden of proof on the Executive to demonstrate that responding to a subpoena is an Unconstitutional imposition on Executive perogatives.

(of course, your mileage may vary) :)
7.23.2007 11:11am
Crust (mail):
Martin Ammorgan:
Take McCain-Feingold. Bush opined it was unconstitutional and signed it anyway (another breach of duty but who cares).
Re "who cares": well, Jonah Goldberg of the National Review has (in all seriousness) cited it as an impeachable offense, so apparently he cares. Goldberg of course opposes impeachment as a political matter, but he thinks Bush could legitimately be impeached for not vetoing a law he believed to be unconstitutional.
7.23.2007 11:16am
Bruce Hayden (mail) (www):
why, given evidence that the firings were done in order to create a justice department that prosecuted cases based on a partisan agenda (rather than a rationally determined law enforcement agenda?). The President has a Constitutional duty to see that the laws are faithfully executed -- firing prosecutors who are "faithfully executing" the law in order to replace them with prosecutors who will use their prosecutorial powers to advance a partisan agenda means that the President is acting contrary to the Constitution.

In other words, the Presidents power to hire and fire is not unlimited, but is constrained by the requirement that he faithfully execute the law.
Except that this is overly simplistic. Which laws in particular are to be enforced? You appeal to some hypothetical rationally determined law enforcement agenda. I find that unconvincing. Who is going to provide that rationally determined law enforcement agenda? The President and his designated Attorney General? The AUSAs? Some arbitrary group of law professors? A Blue Ribbon panel of luminaries, suitably selected to reflect the relevant constituencies?

The reality is that there are far more laws on the books than can be enforced. DoJ could probably easily spend all of its resources on just prosecuting White Collar crimes, or just prosecuting illegal immigrants, etc. But doing such would not leave resources for other worthy prosecutions.

So, who gets to set the priority of where to expend DoJ resources? My suggestion is that the answer is fairly clear, the first sentence in Article II states that: The executive power shall be vested in a President of the United States of America. I would suggest that this determination of allocation of Executive branch resources is well within that executive power.

There is often some political component in prosecutions. Some group is going to be prosecuted more vigorously than some other one is, and someone makes that decision. So, if a Democrat pursues White Collar crimes, is that political? Some would think so, esp. with the current Gov. of New York having ridden into office in just such a manner.

I would suggest that it still comes down to who gets to set the priorities, the person elected to do so, or someone else. You would seem to be arguing for the someone else, as long as you approve of their priorities.

Final note - what about the AUSA who decides to prosecute just immigration cases? Should we (and the Attorney General) defer to his judgment that immigration is that much worse a threat than drugs, kidnapping, civil rights, and white collar crimes? I don't think many here would agree to that.
7.23.2007 11:17am
paul lukasiak (mail):
Jonah Goldberg of the National Review has (in all seriousness)

isn't that an oxymoron?
7.23.2007 11:20am
Dave D. (mail):
P. Lukasiak.,

Mr. Clinton fired prosecuters who were " Faithfully executing " the law in order to replace them with his partisans. All of them. That's why Congress gave the President that power. Are YOU a wingnut for thinking Mr. Clinton did no wrong there ?
The posturing and insincerety here matches that in D.C. ATR Geek, do you really " have no idea what subjective intent members of Congress might have " ? Let me enlighten you. They might have the intent...nay..the burning obcessive desire to accumulate political power by securing a working majority of likeminded partisans through the elective process, or through the deselective process of prosecuting your opponents. As a means to those goals, they seek to paint their political opponents in the worst light. This Congressional investigation is an attempt to do so. The Presidents bold and unprecedented assertion of Privelege is likewise an attempt to draw them into a prolonged and fruitless struggle that they will not cease and cannot win. It is a symptom of the incompetence of the majority's leadership that they allowed themselves to be diverted. There is much Mr. Bush can be faulted for. Firing 9 U.S. Attorneys isn't one of them.
7.23.2007 11:26am
paul lukasiak (mail):
Bruce: It is the responsibility of the president to set law enforcement priorities -- but he is required to do so in a manner that "faithfully executes" the law.

It is congress' responsibility to ensure that the President fulfills his Constitutional responsibility -- by passing laws, providing oversight, and (ultimately) exercising its impeachment powers when necessary. Because Congress has ultimate authority over what constitutes "high crimes and misdemeanors", it ultimately has the power to both proscribe and prescribe the perogatives of the Executive Branch. (e.g. Congress passes a law mandating prosecution of statutory contempt. The President orders that law to be ignored. Congress has every right to impeach and convict the President based on his wilfull disregard of a law passed by Congress.)
7.23.2007 11:31am
Bruce Hayden (mail) (www):
With all the "faithfully execute" the laws arguments, I think that what is mostly overlooked is that not all the laws of the land can be faithfully executed. Rather, the resources available only allow for a small percentage of such to be prosecuted.

For example, years ago I was on a panel discussion on copyright law where one of the participants was a career DoJ prosecutor. Most of those in the audience were somewhat freaked out by the strengthened criminal provisions in the Copyright Act. The prosecutor pointed out that there rule of thumb at the time was that they wouldn't waste time prosecuting cases where the Sentencing Guidelines provided for less than a year of prison. And that eliminated most copyright prosecutions. They may have been technically criminal, but the DoJ wasn't going to spend resources prosecuting them. But he also cautioned us that there were exceptions to that, and that those exceptions were mostly political - if a Senator called up and asked why they weren't prosecuting some party's infringers, the USA office in CO would look at the cases more carefully.

Prosecutorial discretion is necessary, since there are always many more worthy cases to prosecute than there are resources available. And that is why I find unpersuasive the argument that a president's duty to take care that the laws be faithfully executed would force prosecution here. The assumption seems to be that if the president doesn't enforce even one violation of one law, he is failing in his duties. But of course, enforcing all laws that are broken would be impossible, even with a DoJ budget many times its current size. That is why DoJ priorities have to be set, and thus why the argument is unavailing, at least to me.
7.23.2007 11:40am
paul lukasiak (mail):
Mr. Clinton fired prosecuters who were " Faithfully executing " the law in order to replace them with his partisans. All of them. That's why Congress gave the President that power. Are YOU a wingnut for thinking Mr. Clinton did no wrong there ?

There is no single way for the laws to be "faithfully executed", and Presidents do, and should, have the right to appoint prosecutors whom they feel are best suited to carry out their law enformcement agenda.

Clinton did nothing wrong in firing all the Reagan/Bush era USAs in order to ensure that his law enforcement agenda was implemented. Bush did nothing wrong with getting rid of all the Clinton era USAs for the same reason.

The USA controversy revolves around the issue of whether certain USA were fired in order to install prosecutors who would enforce the law in a partisan manner (e.g. aggressively investigating groups like ACORN for possible minor violations of election laws because they register poor people who tend to be Democratic, while ignoring the widespread and far more serious violations of election laws being perpetrated by companies hired by, or operatives of, the RNC.)

Its perfectly legitimate to have "strict enforcement of election laws" as a priority. Its not legitimate to have "strict enforcement of election laws for Democrats, and lax enforcement of elections laws for Republicans."
The latter is a case of failing ot "faithfully execute the law."
7.23.2007 11:45am
Bruce Hayden (mail) (www):
Bruce: It is the responsibility of the president to set law enforcement priorities -- but he is required to do so in a manner that "faithfully executes" the law.
I think that a cop out, as I noted in my previous comment. Faithfully execute which laws?

But maybe we have to separate out our discussions here. The first one involves the underlying offense, of firing AUSAs for apparently failing to follow the AG's priorities. And I think I have addressed this above.

The other is whether the DoJ can be forced to prosecute someone at the whim of Congress. But that still takes resources, and thus prosecution of Harriet Myers would redirect resources away from what the Administration might consider more pressing cases, such as drug dealing, kidnapping, terrorism, etc. So, by prosecuting Myers, they would not be prosecuting someone else - someone I might add who is far less likely to be pardoned.

I may be missing something here, so I would entertain others to address this presidential duty to take care that the laws be faithfully executed more concretely, and in view of my arguments about allocation of resources. It seems mostly just thrown around as a mantra, without really addressing the fact that not all laws can be enforced given the resources available.
7.23.2007 11:51am
paul lukasiak (mail):
Prosecutorial discretion is necessary, since there are always many more worthy cases to prosecute than there are resources available. And that is why I find unpersuasive the argument that a president's duty to take care that the laws be faithfully executed would force prosecution here. The assumption seems to be that if the president doesn't enforce even one violation of one law, he is failing in his duties. But of course, enforcing all laws that are broken would be impossible, even with a DoJ budget many times its current size. That is why DoJ priorities have to be set, and thus why the argument is unavailing, at least to me.

No one is arguing against prosecutorial discretion in general. The question is whether Congress can limit that discretion. And insofar as Congress controls the purse strings, the answer has to be yes -- that "general" funds allocated to the DoD have to be used to prosecute those cases that Congress mandates be prosecuted.

Congress is empowered to make laws to ensure that it can exercise its powers. With the statutory contempt law, Congress has "made a law" that ensures that it can fulfill the oversight powers necessary to fulfill its larger role. For the President to declare that the law isn't to be enforced when Congress mandates that it be enforced goes well beyond "discretion" into open defiance of the law, and the Constitutional order.
7.23.2007 11:56am
MLS (mail):
Paul

Thanks for your responses. I am a little unclear about your response to question 4, specifically regarding the fact that the privilege is exercised by the President, rather than by the witness, and the distinction that you are drawing between executive privilege and the 5th Amendment.

Ordinarily, if a witness before Congress asserts a privilege (5th Amendment, attorney-client, etc), and Congress overrules the privilege and holds the witness in contempt, the courts will review the merits of the privilege claim in the course of the contempt of Congress prosecution. If the privilege is upheld, the witness goes free. (The witness will also go free if Congress fails to comply with somewhat technical procedural requirements that the courts have established, but that is another story). On the other hand, if the privilege is rejected, the fact that the witness may have had a good-faith belief in the validity of the privilege or relied on advice of counsel is not a defense.

So is it your view that executive privilege should be treated the same as the 5th Amendment and other privileges? That would consistent with your "no" answers to questions 4 and 5.

It sounds, however, that you think that executive privilege should be treated differently (worse) than these other privileges. Does that mean that the witness has no defense to the contempt charge even if the court agrees with the substance of the executive privilege claim? And that the reason is that the witness has no right to assert executive privilege in the first place because only the President can assert it? Or that the witness cannot assert executive privilege until the President "proves" it is valid? (where does the President go to prove that?)

Or do you think that my initial 6 questions are not the right ones?

Thanks again for taking the time to respond.
7.23.2007 11:57am
Smokey:
paul l said:
''This isn't about the US Attoney scandal...''
Well, this certainly is a ginned-up, bogus, partisan ''scandal'' being endlessly flogged for political gain. That much I will agree with.
''...its about rule of law and checks and balances. It literally forces Congress to resort to impeachment...''
Yep. There you have it. There's your checks and balances. Impeachment is the Constitution's specific remedy. But the Democrats are afraid, afraid to go for it.

Libtards want it to be easier on them than having to abide by the Constitution, because their partisan politics aren't working for them. They foolishly picked an uphill battle, and the president is rubbing their noses in the playground sand for all to see. What is he supposed to do, roll over? Cave? For you? He's winning this battle.

People know that political appointees are usually replaced for one reason: they were working at cross purposes to their employer. That's how the system is designed to work. Nobody sniveled about impeachment when Janet Reno fired 93 U.S. attorneys. Now it's different?

The fact of the matter is that political, at-will appointees are exactly that, and the reason[s] why each terminated employee was let go is pure speculation on the part of people who weren't there, who don't know, and who have only the sour grapes of the fired appointees for their 'evidence.' Pathetic.

And even if each and every one was fired specifically for not being politically aligned with the president, so what? Firing political appointees for any reason, or for no reason at all, is well within the president's authority. Being a crybaby about it is a choice the opposition has made, because they are simply too scared to employ the Constitution's remedy. But there are certainly choices that would look better than their impotent whining:

Try to impeach the president over this issue [or any other issue, for that matter]. Or suck it up like a man, and move on. Or, you can have someone hand you a hanky and say, ''There, there.''

The president's ratings are almost as low as Harry Truman's were. But Congress' ratings are much lower than the president's. There's a reason for that: the American public can smell cowardice. And they are getting fed up with the endless bickering.
7.23.2007 12:04pm
Dave D. (mail):
..Yes, Congress gets to define and limit prosecutorial descretion and they do have the power of the purse. That's why prosecutors use that descretion, because their resources are limited, very limited, due to funding. If prosecutors had unlimited funds, it would avail nothing as the courts and prison system is likewise restricted by limited funding. It has always been so. But Congress doesn't get to exercise that descretion themselves, except as it pertains to impeachment. Only in impeachment are they the prosecutors. The power of the purse is such a dull blade it is almost impossible not to do more unintended harm than intended good with it.
..Question: As Ms meirs was under no legal obligation to obey the Presidents request when she ignored Congress' subpoena, how can she assert privelege ? She cannot. And if she cannot, then it is not a Constitutional question at all. The President is only responsible for that which he can he can compel, not for that which he can only request. Why is this not so ?
7.23.2007 12:42pm
Mark Field (mail):

Taking your last observation first, my point is that Meiers chose not to appear. She no longer works for the government, so is not subject to any orders of the President. I presume he let his desires be known to Ms. Miers that she withhol all privileged information, but I also presume that she made the final decision whether or not to appear.


I think this is a pretty unrealistic characterization of the situation.


Harriet Miers was Bush's "personal lawyer"?! I thought that while Bush may have been the one to chose her for the position she occupied, and while he had the authority to discharge her at any time and for any or no reason, she was always a servant of We, The People while in Washington, never his "personal lawyer." Am I wrong about this?


I agree with you. My previous post didn't contest it because I think the issue is irrelevant anyway.


Mr. Clinton fired prosecuters who were " Faithfully executing " the law in order to replace them with his partisans.


I'm mystified that people continue to make such fundamentally corrupt arguments. I assume nobody thinks it's ok to rob a bank just because John Dillinger robbed them. If Clinton did something wrong, that fact doesn't give Bush a free pass to do it too. Merely by bringing up Clinton in this context, the poster is suggesting that two wrongs DO make a right. That corrupts our discourse.
7.23.2007 12:42pm
paul lukasiak (mail):
It sounds, however, that you think that executive privilege should be treated differently (worse) than these other privileges. Does that mean that the witness has no defense to the contempt charge even if the court agrees with the substance of the executive privilege claim? And that the reason is that the witness has no right to assert executive privilege in the first place because only the President can assert it? Or that the witness cannot assert executive privilege until the President "proves" it is valid? (where does the President go to prove that?)

I think by answering your questions in reverse order, I might be able to make my opinion clearer.

If the President feels that someone who is subpoenaed to testify before Congress will be compelled to reveal information or provide documents he considers "privileged", the proper course of action is to file a motion to quash the dubpoena.

When it is documents that are in question, the resolution is fairly straightforward --- either an agreement is reached, or the court examines the documents, and determines which, if any, are privileged.

The real problem comes about with subpoenaed testimony because it is impossible to determine in advance where certain lines of questioning will lead, and because the answers to "unprivileged" questions could alter the balance between Congress's "need to know" and "executive privilege".

It is because of these difficulties with subpoenaed testimony that the courts have consistently encouraged Congress and the President to reach agreement on specific areas of priviledged testimony -- allowing witnesses to testify secure in the knowledge that they will not be held in contempt for refusing to respond to questions whose answers fall into the pre-determined "privileged" category.

Technically, when an agreement has been reached, a witness does not claim "executive privilege", rather s/he cites a "privilege" to not respond that was established through the agreement. For the witness, the agreement functions as immunity from prosecution for contempt for refusing to respond to questions covered by the agreement.

In terms of the "good faith" question, because AFAIK Congress has never cited someone for contempt for asserting executive privilege without first providing an opportunity to either quash the subpoena, or reach an agreement, its kind of a moot issue. (Theoretically, the person would still be guilty of contempt even if they were acting under the correct impression that their testimony was privileged, because the individual does not have the right to make the claim itself. In pratical terms, however, were the court to find that the testimony was privileged, Congress would lift the contempt citation, and the prosecution would be terminated. )
7.23.2007 12:47pm
ATRGeek:
To my knowledge no one is arguing that prosecutorial discretion is per se unconstitutional. The more relevant questions are whether whether a person with prosecutorial discretion can use that power in a way which would be unlawful, and whether Congress can limit prosecutorial discretion by statute.

The answer to the first question is well-established: of course they can. For example, in addition to things like bribery, other established cases of unlawful uses of prosecutorial discretion would include things like what is sometimes called "selective prosecution" on the basis of race, religion, or political opinion, and "vindictive prosecution" (where the person is being retaliated against for the exercise of constitutional rights).

I'm not aware of any Supreme Court caselaw on the second subject (although that doesn't mean it doesn't exist), but as I noted before, placing limits on prosecutorial discretion by statute is a common practice in various state and local jurisdictions (and internationally), including through things like mandatory prosecution statutes (eg, for domestic violence cases). So, given the broad language in the Necessary and Proper Clause, the established possibility of unlawful uses of prosecutorial discretion, and lack of any specific mention of prosecutorial discretion in the Constitution, I think it would be hard to argue that unlimitable prosecutorial discretion is somehow inherent in the Constitution's grant of executive power.
7.23.2007 12:56pm
MLS (mail):
Paul

Thanks again.

The idea of the President filing a motion to quash the subpoena might be a good solution to the problem, except that the Supreme Court has held that the Speech or Debate Clause prohibits the judiciary from restraining or quashing congressional subpoenas (the Eastland case).

What Eastland leaves open is the possibility that one could bring an action to restrain another from complying with a congressional subpoena. Thus, the President/executive branch could bring an action to enjoin Miers from complying with the subpoena. Perhaps, therefore, you would argue that Miers should have announced her intention to comply with the subpoena, but given the President an opportunity to bring an injunctive action against her before doing so. Presumably, that is what she would have done (or at least what her lawyer would have advised her to do) if there were a real chance that she would be prosecuted for contempt otherwise.

Unfortunately, it becomes something of a circular argument because so long as Miers doesn't fear prosecution, she has no incentive to comply, and if she has no intention of complying, the executive wouldn't have a basis for seeking an injunction against her. Interesting, nonetheless.
7.23.2007 1:15pm
Crust (mail):
Since there's naturally a lot of talk about impeachment and impeachment is a political process, it's perhaps helpful to look at polling data.

According to the American Research Group's most recent poll on impeachment, a plurality of American voters support impeaching President Bush (46% to 44% with 10% undecided) and half (50% to 44%) support impeaching Cheney. Unsurprisingly, most Democrats support impeachment of Bush (69%) and almost no Republicans (13%). Perhaps the most interesting angle is that Independents slant heavily towards impeachment, with a roughly 20% spread in favor for both a Bush impeachment (50% vs 30%) and a Cheney impeachment (51% vs 29%).

I haven't seen any polling data for impeaching Gonzales, which is perhaps a more natural step.
7.23.2007 1:19pm
Dave D. (mail):
Mark Field.,

You mischaracterize my point. I think Mr. Clinton was right to fire the previous regimes USA's and appoint his own. I would expect the next President of whatever party to do the same. It has nothing to do with bank robbery.
..Since the Court ruled that it can ignore manditory sentencing law, I think they have acknowledged thereby the existance of privelege, at least by their branch. If they do adjudicate this case, they must at some point look over their shoulders to what effect it would have to make Congress the superior of the coequal branches.
7.23.2007 1:42pm
riptide:
I don't want to threadjack, but why are so many people so carefully not arguing against prosecutorial discretion? IMHO, the correct and desirable solution would be

a) to limit the laws to those we intend to prosecute. Speeding "laws" are not enforced even though nobody obeys them. So why do we need speed limits at all?

or b) leave "prosecutorial" discretion where I believe it belongs, and where I think it was often found historically, in the hands of the grand jury.
7.23.2007 1:57pm
Mark Field (mail):

You mischaracterize my point. I think Mr. Clinton was right to fire the previous regimes USA's and appoint his own.


Then I'm puzzled why, after noting the Clinton firings, you asked "Are YOU a wingnut for thinking Mr. Clinton did no wrong there?"
7.23.2007 2:16pm
paul lukasiak (mail):
MLS: I think you misread Eastland to some extent. The Speech and Debate clause was invoked to dismiss individual Senators as defendants in the case -- not as a reason to refuse to quash the subpoena itself.

The courts found that the subpoena should be honored because, despite various court precedents guaranteeing the right of association (and denying the state access to things like membership lists that had been subpoenaed), Congress had "a valid legislative purpose" in pursing the organization's bank records.

In other words, there is ample precedent for court review of Congressional subpoenas based on competing "Constitutionally based" interests -- and this would include injunctive relief requested by the Executive Branch on the grounds of Executive privilege.
7.23.2007 3:00pm
jukeboxgrad (mail):
martin: "Please cite 'my ass' as your authority next time you make stuff up"

You're talking (in my opinion quite appropriately) about David N.

At the risk of going slightly off-topic, it might be interesting to note that the same uncited authority he used in this thread was also used by him here, as I showed here. I never heard from him again, or from his uncited authority. But maybe that's because I paused to take Saturday off. You also haven't heard back from him, or from his uncited authority, but he just might be taking a break to wipe it.
7.23.2007 3:01pm
K:
Paul your 6:39am

First, I repeat that Miers should have appeared. Then she should have followed her honest beliefs about EP and either testified or refused.

Second. I didn't read the details but if Bush or anyone else said the justice department would not act in the matter it was foolish. Such decisions should not be made until they must.

Third. Bush does indeed seem to be daring Congress to resort to impeachment and/or inherent contempt. I don't consider this all bad. Any President should have the nerve to act in murky situations and be willing to face consequences. Maybe Bush will be removed.

Fourth. Saying is not doing. Until Congress requests a contempt prosecution there is no basis for action about what Justice will or won't do.

Fifth. Ultimately Congress is the superior branch. To believe that the Courts and Executive are the equals of Congress is IMO just fantasy.
7.23.2007 3:02pm
paul lukasiak (mail):
Fourth. Saying is not doing. Until Congress requests a contempt prosecution there is no basis for action about what Justice will or won't do.

I have to disagree with this. While "saying" should not in and of itself be considered an impeachable offense, it is sufficient to initiate impeachment procedings --- and using the USA scandal as one of the grounds for impeachment. This would put the White House on notice with regard to how seriously they take Bush's threat.
7.23.2007 5:18pm
K:
Paul. Anything can be argued as an impeachable offense. But you are trying to distort my sentence; it was clearly only about the Miers contempt.

And I don't see what Congress should do before they vote on the contempt. Perhaps they should summon the AG and various others to describe how the case would be handled if it existed.

They might also subpeona the prospective judges to ask how they would rule if justice brought such a case to their court. That seems an investigative matter.
7.23.2007 6:18pm
David M. Nieporent (www):
Jukeboxgrad, I apologize for not continuing to follow a thread days later, moving on to other topics. I don't think it belongs here, but just to be clear, I know the Times reported the dispute because I read it there at the time. Thirty seconds of searching through the Times' archives led me to these:

By October 2002, Michael Gordon reports that some intelligence specialists believe that the tubes are for conventional weapons programs.

In November 2002, William Broad reports that David Albright said they were for "benign uses" (which is an odd way to describe rockets) and that the British government had no evidence that the tubes were for a nuclear program.

In January 2003: Michael Gordon, James Risen, and others report, *numerous* times, that the IAEA says they're for rockets.


Incidentally, you completely distort the SSCI report on the DoE's views. Like many people, you're confused about the difference between conclusions of fact and assessments in intelligence work. The DoE factually concluded that the tubes could be used for enrichment; it assessed that this wasn't likely for various reasons. The latter type of assessment is obviously very important in decisionmaking, but is by definition less accurate than the former.


But this really belongs in another thread. As for Mr. Ammorgan, I asked a question and he didn't respond: if Congress passes a law which makes criticizing the war effort illegal, does he think that, until a Court says otherwise, (a) the law is constitutional, and (b) the president must enforce it?
7.23.2007 7:16pm
neurodoc:
Whether it was prudent or imprudent, principled or unprincipled, whatever, Clinton's firing off all 93 US attorneys in one fell swoop did not raise the questions raised by the selective firings of 9 US attorneys by Bush or whoever it was who directed that they be fired. And of course we don't know who directed the firing, raising further suspicions about why those 9 in particular. I am no BDSer, but I certainly wonder about those reasons, especially after the bogus explanations first given. To put it simply, it smells bad in a way the Clinton firings never did. (Did we mention details like Domenici's input in NM, the Repubs under investigation, etc., are reasons for our suspicions and concerns?)
7.23.2007 7:55pm
Dave D. (mail):
Mark Field.,

I addressed that post to Mr. Lukasiak, who earlier had posted :
" The wingnuts think that because they believe that the U.S. Attorney scandal is some kind of partisan expedition that the President is justified in his actions "
As a recently emerged wingnut, I was contrasting Mr. Clintons dismissal of all the USA's and countering with the question that, assuming Mr. Lukasiak found no fault in those firings, does that make him a wingnut also?
I have no quarrel with any President dismissing an at will employee at any time, with or without cause.
7.23.2007 8:16pm
paul lukasiak (mail):
I have no quarrel with any President dismissing an at will employee at any time, with or without cause.

So you supported the firing of Archibald Cox during the Saturday Night Massacre?
7.23.2007 10:10pm
ATRGeek:
Dave D.,

That is all a bit hypothetical, since the President has not stepped forward and claimed responsibility.
7.23.2007 11:35pm
jukeboxgrad (mail):
david: "I don't think it belongs here"

You're right; it doesn't. Therefore I have posted a response in the other thread.
7.24.2007 2:09am
Dave D. (mail):
...No problem with Mr. Nixon firing Mr. Cox whatsoever. Nor do I have any problem with the resignations of those who refused to fire Cox. It exposed the thing for what it was and convince most folks, including me, that there really was something to it. It forced Mr. Nixons hand. I see no parallel with the firing of the 9, however.
ATR Geek; right you are, but since only he can hire and fire 'em, responsibility is his whether he delegated the authority or not.
Neurodoc, mere suspicion is not enough to break Executive privelege. Nor are hunches or bad smells. Probable cause, based on facts relating to the issue at hand. Other unrelated suspicions shouldn't be conflated into the mix.
As to those halcyon days that await us when the justice Dept. is free from all politican partisanship and all crimes are prosecuted, I can only harkin back to that famous Democrat who said that "someday the people of Louisiana were going to get good government...and they ain't a gonna like it."
7.24.2007 5:01pm