Oh, No, Not a Constitutional Showdown:
According to the AP, President Bush made a statement a few minutes ago in which he apparently threatened a constitutional showdown if Congress turned down his offer to have top aides testify about the U.S. Attorney firings only in private and not under oath. I gather this means that if Congress subpoenaed White House officials, the White House would assert executive privilege and force a lawsuit over whether the subpoena could be enforced.
I wonder, though, wouldn't Congress be simply delighted to have this become a constitutional showdown? It would keep the issue in the headlines for weeks, and litigation would be likely to narrow the scope of executive privilege rather than expand it. Given that, this seems like a weird warning to make (assuming that the AP is reporting the warning accurately).
I wonder, though, wouldn't Congress be simply delighted to have this become a constitutional showdown? It would keep the issue in the headlines for weeks, and litigation would be likely to narrow the scope of executive privilege rather than expand it. Given that, this seems like a weird warning to make (assuming that the AP is reporting the warning accurately).
If there is anyone competent left at the White House, they will realize that this is the beginning of an onslaught of subpoena's on many different topics. They either fight or give up. Given that they have only 22 months left, they may just try to run out the clock.
I get how the privilege could be claimed to relieve her from having to answer questions regarding her conversations with the President, but I don't see how that privilege could be used to prevent her from testifying at all.
I am interested in knowledgeable assessment of the legal situation. If Bush is not bluffing, what is the outlook on executive privilege? What would the likely contours of such a case be? Doesn't immediate responsibility for enforcing congressional subpoenas lie with U.S. attorneys? IIRC, much of the thin precedent on executive privilege involves national security, and no one is invoking that here. Would the court consider a political standoff over the scope of the privilege justiciable?
What about attorney client privilege or attorney work product privilege?
Those privileges go away if the crime/fraud exception applies.
This looks like a dead-bang loser for bush. In theory, there could be a privilege that applies, but he lacks the facts to get the theory convincingly developed and articulated by relevant courts, in my view.
As opposed to the Clinton White House, right, Justin? Does your contempt for Bush run so deep that you are really incapable of seeing what a silly, stupid point that is? I mean, really, this White House...? Scary that you Bush-haters apparently feel not the slightest bit of embarrassment at the illogic of most of your "digs," so long as you manage to get a cute and witty (or so you think) zinger off your chests. Guess it's cheaper than a therapist.
And to head off the predictable claptrap which you will spew forth should you respond to this: no, Justin, I think it is wrong when any administration, D or R, perjures itself.
[OK Comments: MJS, I trust that your reflexive hatred for reflexive Bush-haters won't blind you to your lack of civility.]
Over the weekend on the Journal Editorial Report, John Fund referred to Clinton's firing not only all the Republican prosecutors when he came in, but also 30 more of his own appointees.
Would you agree that there have been Administrations which would not behave as Justin described? If you do agree, then perhaps the modifier makes sense.
I think it's important to keep the sequence straight. It wasn't the critics trying to differentiate, it was the defenders trying to compare. When the issue of the 8 USAs first arose, a number of people tried to equate that to the Clinton Administration's replacement of all 93. That argument isn't very persuasive, as the critics have demonstrated.
If you now want to suggest a new and different defense, that can be analyzed on its own merits.
But, where executive discretion is absolute, can the considerations for, and participants in its exercise be subject to "oversight?"
I assume someone will provide backup for this claim by John Fund, as it seems to contradict everyone else's research, including that of the Congressional Research Service. The CRS (pdf link) found a mere eight examples of US Attorneys who were replaced during Clinton's tenure without serving a full four-year term, none of whom were fired.
If we're not counting the initial replacement of 93, I'd challenge Fund to name a single US Attorney who was "fired" or "removed" by Clinton - let alone 30. "Replaced," of course, is a horse of an entirely different color, and it could easily apply to US Attorneys who resigned and were replaced.
Fund isn't exactly noted for his honesty on claims like this, so I'll wait for the backup.
The supposed Arkansas USAO whom Clinton fired to cover up Whitewater is a fellow by the name of Charles Banks. Banks, it turns out, rejected a criminal referral from the RTC regarding Madison Guaranty that identified Bill and Hilary as "witnesses." So, if Clinton purportedly fired 93 USAOs to cover up his firing of Banks, why? Banks wasn't going to investigate him over Whitewater anyway and in fact had rejected the one referral that had been made about the matter. Some coverup. Combine this with Stuart Gerson, Bush 41's Deputy AG and Clinton's acting AG (until Reno), who said that the termination of the 93 USAOs was perfectly normal.
As for John Fund, my guess he is now apparently reading off of new, equally inaccurate talking points from the RNC, by claiming that Clinton fired 30 USAOs mid-term.
As for the conflict between Congress and the Executive Branch, Congress does not even recognize the attorney-client privilege (at least not expressly) for witnesses whom it subpoenas. I can't see it paying much deference to executive privilege. The courts will have to be the ultimate arbitrator, but the question is whether they will do so, or duck the issue using the political question doctrine.
A constitutional showdown amounts to a political showdown, and either side could win. The other choice is submission by Bush. So, to answer your question, no, I don't think Congress is "delighted" by a showdown. I think they'd rather win by default.
Yes, this White House. I hated Reagan and Bush 41, too, but neither they nor Clinton hold a candle to these guys on secrecy. What's happening here is that Bush has gotten used, over the last six years, to not having to answer significant questions and he's trying to pull the same stuff again. The late Republican Congress -- and this is not true of Republicans generally -- did not believe in holding its own side accountable. Everything was done with an eye to political advantage. I heard Tom Delay on the radio this morning ... no apologies, no regrets, Democrats are "my enemies." I'm in favor of partisanship because that's how we fight about stuff, but that's too much.
Now the Democrats, still flinching from Delay-inflicted, are probably going to do the same stuff back and it will be ugly and wrong, but they're not there yet. This inquiry is proper.
Exchange on meeting up with a political friend yesterday:
Q: "What's new?"
A: "Oversight."
If they do, then it does play nice for Republicans who can, in 2008, show that Democrats don't actually have any other goals.
But, maybe there is something illegal I've missed, making this all worthwhile. If not, I can't imagine too many people caring how this turns out, except inasmuch it distracts against getting something new done.
Back in my youth there was this guy named Nixon who had some tapes he didn't want to turn over to Congress, and they went all the way to the Supreme Court, where they spent an hour or so discussing executive privilege, and then the Supremes decided that Nixon should give up the tapes. At that point, Nixon had to decide whether it was really a good idea to thumb his executive nose at a court order. The rest, as they say, is history.
It is true that the enforcement mechanisms are, for the most part, within the control of the executive branch, but I really, really doubt that any President wants the constitutional crisis that would ensue if he defied a court order upholding a congressional subpoena.
I'm not asking conservatives for technical defenses of either the underlying firings or the executive privilege argument. I'm asking why this is something that you would actively get behind. If the WH is guilty of firing prosecutors in order to manipulate elections and hide corruption, this seems to be the kind of battle that defense lawyers do, but not the battle that makes them proud to be a defense lawyer. If the WH is innocent, then shouldn't you feel at least some urge for them to open up and prove it?
Or is there, in today's day, a base-passion in simply the thrill of partisan politics, a game of constitutional chicken that heats the blood like we're drunk teenagers?
Potentially, yes. Lying to Congress is a crime, and a couple of the obstruction of justice statutes are broad enough that they could include some of the conduct here.
Does there need to be shown clear wrongdoing (besides political)? I would think the Courts would give the President a fair amount of leeway and need something more than political payback to rule against him. What is the burden Congress has to show to overrule the President's own authority on this?
Furthermore, something doesn't have to be statutorily criminal to be impeachable activity. To some degree, what is impeachable is what Congress says it is.
Unfortunately for Bush, the rather frivolous pursuit and subsequent impeachment of Clinton for purely partisan reasons (even if they did finally find an actual felony to base the impeachment on).
Oops, maybe it's advancing age. :-0 It was the special prosecutor who wanted the tapes. In any event, Nixon decided against precipitating a constitutional crisis by refusing to comply.
Congress can and does seek judicial orders to enforce subpoenas. Ironically, I once interviewed with Congressman Cheney for a position on the minority staff of the Iran-Contra committee, and he was really adamant about his lawyers being very familiar with enforcement of congressional subpoenas through judicial subpoena enforcement proceedings.
Ummmmm....so you're saying...that Gonzales should be removed?
Cool, I can live with that.
I'm confused, are you talking about Gonazales or Clinton? The pursuit of Clinton was obviously partisan although he did indeed lie under oath. And anyway, apparently perjury is no longer a big deal. The recent emails have clearly shown that Gonzales lied about the circumstances surrounding the firings. Allowing WH officials to talk to congress off the record and not under oath just encourages them to lie even more.
It is interesting that such a clear cut view (which, as a lawyer, I find right on point) apparentlty comes from a very "partisan" source.
Fred Barnes in public. (Karl Rove in private?)
Further, doesn't the President now have to specifically authorize claims of executive privilege, as a result of Clinton claiming privilege for just about everything including his dating habits?
So you would like the Senate to do nothing in this matter? What better way to have the White House continue to act like children than to simply ignore it, as you seem to suggest?
It seems to me that Bush is acting exactly as he always has: He believes that he is answerable to no one, except Jesus, and that's that. He's merely acting on principle.
In addition take a look at: LEGAL EFFECTIVENESS OF CONGRESSIONAL SUBPOENAS ISSUED AFTER AN ADJOURNMENT SINE DIE OF CONGRESS, Memorandum for Janet Reno, by Chris Schroeder, Acting Assistant Attorney General, Office of Legal Counsel, November 12, 1996
In response to Dick Schweitzer, I would point out that the issue that Kagro X discusses is enforcement of the subpoena. I think that any reading of JURNEY v. MACCRACKEN supports the view that the Sergeant at Arms has the power to arrest and detain individuals in order to enforce compliance. Kagro X's dismissal seems a bit ingenuous.
Except, you know, for the long list of White House staffers in the Clinton Administration who testified (under oath) before Congress.
Finding a way to keep Rove, or Miers, from having to plead the Fifth before Congress.
Even in this day &age, that would presumably make the present storm look like a gentle summer breeze.
These issues, of coure are vital to the continued existence of the republic, especially as the war extends into its fourth year, the government continues to be funded by a continuing resolution, and the democratic controlled congress seems incapable of exercising its authority to simply end the war by cutting off funding for it. Political theater, legislativie masturbation, and of course, "oversight" are ever so much more important than, say, passing a budget, restoring all of those missing civil liberties, and ending a war. (sarcasm off)
FYI, here is an online link to the CRS Congressional Oversight Manual, which does have a dispassionate description of subpoena and enforcement procedures and history.
I think it is important to recognize that the standoff between Congress and the White House is still several steps away from the brink. A negotiated settlement is still possible -- and if history serves, negotiations frequently are not settled until the parties actually are at the brink of a congressional contempt finding.
(And remember, Fred Fielding is an old hand at this stuff. That's why he was recruited. This is also not the first rodeo for Patrick Leahy or John Conyers.)
As I understand it, the next steps planned are for the House and Senate Judiciary committees to authorize issuance of subpoenas. Actual issuance of the subpoenas would be a separate step, and service yet another. Then the served parties might contest in court, or might just stonewall. If they do defy subpoenas, then the houses of Congress might vote contempt. Actual enforcement of such contempt findings could be really tricky (a U.S. attorney is probably in the loop), but things usually do not reach that stage.
Can you clarify this? If something is not coded in statute, or specifically in violation of the Constitution, how can it be a crime, which is kinda sort of a requirement for impeachment? Are you suggesting that the requirements for impeachment can be waived by Congress at will, or that they may retroactively declare perfectly legal, if potentially politically embarassing, activities as "crimes" that rise to the level of impeachment, otherwise known as ex post facto laws? This strikes me as very dangerous territory to venture in to.
This forces us to ask the question, does Congress have the right to force people into giving sworn testimony concerning situations in which no criminal activity has taken place, or is even reasonably suspected, all for the purpose of dredging up politically embarassing testimony, maybe even fishing for a perjury charge? (Do note that Lam was not fired but rather not recommended for another term, and furthermore was already on the hotseat long before the Cunningham story broke, which led to her involvement, so forgive me if I feel that the whole obstruction of justice argument just doesn't hold water) And I of course mean the New Perjury (tastes great AND less filling!) evidenced in the Libby trial, where you don't even have to be consciously lying, just remember things differently than other people, who can't possibly themselves be mistaken because they're testifying against a Republican.
An independent and fair judicial system is also of vital important to the continued existence of the republic.
Not saying what you said about the war isn't important, congress has the power and time to do both. Lets try not to make this into a game of Hobson's choices when there is really no reason to.
Yes (although perjury involves relevance as a portion of the proven charges - some famous lawyer once successfully litigated a case by proving that the defendant, an American soldier in World War II, could not be helping Congress pass a law that had already been passed, and thus was not guilty of perjury). But certainly this would not pass muster here, because there is reasonable suspicion that a crime has taken place, and in any event, given the (theoretically legal) obstruction of justice that very much appears to have taken place, congressionally enacted reform can take place at minimum, and so a valid purpose exists nevertheless.
And there's no Judicial review of a political impeachment. See Nixon v. United States, 506 U.S. 224 (1993).
But like I pointed out in my post, the belief that there is a reasonable suspicion of a crime is materially false, as a) Lam wasn't fired, she was not renominated for another term (she additionally was "on the list" long before the issue of Cunningham came up, and the administration certainly made no efforts to stop the work she began after the fact, which, in reasonable people, would at least imply they weren't motivated to remove her to protect Cunningham), and b) it is the President's prerogative to fire attornies general and nominate replacements at his whim in any event, regardless of whether this is good policy or not.
Back to my main point; are you absolutely certain you want to say that Congress can, on a whim, bring witnesses forward to make sworn testimony on issues not related to violations of the law (remember, they did not start with demands for testimony related to accusations that the administration removed these attornies in violation of federal hiring laws, obstruction of justice, or other violations of federal law, but rather, with allegations that, wonder of wonders, politics played a part in the "removal" of political appointess, which is none of their concern)which is essentially criminalizing political disagreements? Please cite me relevent statutes which give Congress such broad powers and explain how they don't horrendously violate the separation of powers, let alone basically grant congress the right to throw privacy rights entirely out of the window as they see fit, and if you are a-okay which such powers eventually being vested in people who politically disagree with you.
They should have simply told Congress they didn't like the 8 AG's work, and terminated them thuslessly, as was quite within their authority. There's no huge amount of scandal in that alone.
dwa,
You may not like this, but the poster was entirely correct. 'High crimes and misdemeanors' is an undefined term, to be defined by Congress. It is a *political* question. An impeachable offense is what Congress deigns it to be. It is not defined by the criminal code (there are many incidental criminal laws a President accidentally or purposely may break that may not be impeachable) and there are activities that may violate no known law that a President may do that may be impeachable. If Congress behaves in an out of control manner and impeaches a President for no reason, the remedy is for the people to express their displeasure at the ballot box by voting out the Congress.
Historically, impeachment is incredibly serious, and not to be taken lightly. That is why many Constitutional scholars found fault with the Clinton impeachment, and why Andrew Johnson was eventually not convicted. It is the overturning of a valid election of the people. When I see activists say, "Impeach Bush, Impeach him now" I shudder- I may disagree with him, I may even dislike him strongly, but he was duly elected, and unless clear and convincing evidence comes out of serious and widespread malfeasance (not necessarily convictable criminal crimes) I do not believe such rhetoric is helpful.
Anyway, to sum up ConLaw 101: Impeachment is what Congress wants it to be. Then they have to answer to the people.
I'm a pretty partisan guy in general, but this whole "there was no underlying crime committed but we're gonna stick you with perjury or obstruction anyway" idea just utterly appalls me.
According to Gerald Ford. And, presumably, by Congress themselves. But that is certainly no surprise, and not really relevent. The verbiage, as well as the supporting literature and arguments, which are well-known, point to a restricted view of high-crimes and misdemeanors, not an as-you-wish view, and certainly not what I was asking clarification of, which is Justin's statement that it doesn't have to be statutory to be a crime, implying that non-criminal acts can somehow be crimes worthy of impeachment, which is a logical impossibility.
I used to think this, until it was pointed out to me that obstructing justice, and perjury, are ALL ABOUT making it impossible to prosecute an underlying crime, or even to determine whether that crime was even committed.
So to limit obstruction/perjury charges to cases with underlying crimes charged, is basically to *reward* perjurers and obstructors.
Well, they could have, but (1) they would have been lying - in some cases, they had no real objections to the work.
And (2), they obviously were afraid to fire them for no stated reason at all. When someone gives you a false reason for his actions, it's because he doesn't want to give you the true one.
Congress is entitled to be curious as to the true reason, as it had just surrendered confirmation authority over these posts.
"Didn't like their work" is a pretty broad reason. I think it certainly encompasses firing them for not investigating voter fraud claims.
Other than that, it seems to me that this p***ing match between tow ends of the Pennsylvania Avenue is not justiciable. Why would any court want to get involved in this childishness? Plus Congress has plenty of tools to force the President to comply. Beginning with impeachment and ending with cutting off funds to run the White House. If they don't have the cojones to use these powers, I do not see why the courts should help them.
Furthermore, Congress should not be required to make the irresponsible choice of crippling the executive (especcially in a time of war) in order to conduct its constitutionally-expected oversight, solely because the President decides to take an equally immature position.
Given both that the law and policy is in favor of at least some attempts to resolve this judicially, I don't think Congress should simply sidestep that route entirely.
I can understand siding w/an administration on a not so cut-and-dry issue when the administration has otherwise been honest and open on other issues. But here we have an administration that is such a demonstrable failure, whose contempt for the public as well as Congress has been so palpable since Day 1. It has lost the benefit of any reasonable doubt long, long ago.
And no, it's not partisanship. Anyone who cares about our Constitution and what made this nation great ought to be outraged at this administration, and many of those who would never vote Democratic or label oneself a liberal have expressed such outrage. The only valid question is what's wrong with those who still refuse to see it.
Also:
you have got to be kidding me. The President is obligated BY LAW to reappoint someone involved in an investigation who's term is set to expire? This is delusional; there is absolutely no reason why someone else can't pick up where Lam left off, which, obtw, is exactly what happened, and why Cunningham is in jail.
The above comments affirm the adage that a DA can indict a ham sandwitch. Yes, someone could make a convoluted claim and case that the AG (President, et al.) interferred with justice or whatever by firing a U.S. Atty. investigating someone that some Representatives think should be investigated.
But before getting too excited about this, what happens in a bit under two years, when another of these U.S. Attys. is investigating another financial misdoing by the incoming Presidend Hillary Clinton? Should she be impeached for having her AG fire that U.S. Atty.? Or is it somehow ok if she fires all of them like her husband did - even if a bunch of ongoing investigations are scuttled?
Frankly, I don't think that you want to go there. If you criminalize the Bush Administration firing USAs, it is going to be very hard to decriminalize the firing of them by the next Democrat in the White House.
Simple. It's because giving in to these demands as they are now would result in a prejudged show trial. (Listen to the rhetoric!) Resisting *might* result in some better circumstances, or even no trial at all (unlikely, of course).
This *is* politics. That's all it is, through and through, on both sides (and down the middle). Politics started this, it's politics right now, and the final decision will be reached politically, and will influence our policies into the future. Why fake shock and horror that one side wants a less unfavorable position?
Bush's proposal of a simple interview is essentially a counteroffer to some senatorial proposals of a public trial with witnesses (but not the Senate) under oath. Both are ridiculous extremes -- but one is a response to the other.
My purposely sarcastic point upthread was to suggest there were more important priorities with which the congress could be dealing (and I do acknowledge the philosophical points about independent judiciary and all of that.) Almost any issue, of course, can be transformed into a philosophical issue that could threaten the republic; however, in the scheme of things, I think time and effort spent on this particular issue is rather a waste of time. But that is strictly my opinion.
The other thing though is that President Bush (43) seems to be very careful about maintaining the presidents perogatives and power vis a vis Congress and the courts. It is as if he looked at those powers as a sacred trust that he needed to pass on to his successor undiminished (or, even better, strengthened). We saw something very similar when Congress was investigating the NSA TSA program.
That's the argument Nixon made. Whatever he did wasn't for him, it was for "future presidents".
I think such a conclusion reflects partisanship rather than informed judgment. The new Congress has been in power for all of 3 months, compared to 12 years for the Republicans. It would be hard to more corrupt with just 2% of the opportunity.
If you're referring to Banks, he had refused to treat the Clintons as "involved" (specifically, as material witnesses).
I believe you missed the point of my post. I am not referring simply to Gerald Ford's (in)famouns quote, but rather to what is taught in most (if not all) ConLaw classes- impeachment is what Congress believes it to be.
There are crimes that Congress would not impeach over. Speeding, for example. Or other malum prohibutum misdemeanors.
There are non-crimes that may be impeachable. A president who drinks himself into a stupor every day and neglects his duties (with the exception of required ones, such as the State of the Union), would likely be impeached without too much of a problem (a high crime, perhaps).
Again, Congress may impeach. And convict. And then they'll have to explain to their electors why they did so. Impeachment is an extraordinary remedy granted to Congress as an ultimate check on executive power, and as such is the big stick that should not be used except in extraordinary circumstances. It was for this reason that Andrew Johnson survived.
Yep, I understand this counterargument. In my mind, those negatives don't outweigh the negative results from allowing these perjury/obstruction charges. Especially when the acquittal/dismissal of the underlying crime is NOT based on the alleged perjury/obstruction.
It's too easy for mistakes/forgetfulness/simply not knowing to be seen as an intentional cover-up. The idea that in these criminal trials there was no REASONABLE doubt that they weren't intentionally lying seems patently ludicrous to me.
Nixon was in trouble because there was a sexy break-in. Spies, and burglars, and nasty language, and political attacks against the opposing party all were better than fiction. It was a rousing tale. Nixon was a weasel with a lot of skeletons.
Bush has major issues. But, it seems it's all going to boil down to whether he had the authority to do what he did, even if people dislike the reasons. Unless you can explain it with a bit of flair besides referring me to read up on something I have no idea how to read up on, then it's just not going to make for a grand scandal.
Clinton had sex. Nixon had bungled burglars. Bush has what? Arguments with those who politically despise him? Not sexy.
Bush is gambling here that it's so not sexy that Congress is going to get even worse coverage. Because from my seat there's nothing to this other than political posturing on both sides.
Obstructing a clearly partisan investigation (even if there are some merits) just doesn't stand out enough to be worth the fight. And in 2008 Republicans, with new candidates, will be able to run against these present Democrats with charges they do nothing but whine and play politics. And unless Congress finds a real cause, the Republicans will be absolutely right.
I think Bush is comfortable with this.
Both Nixon v. US and Clinton v. Jones involved disputes between the Executive and the judicial branches. Thus, courts were already involved. This is a dispute between Congress and the President and there is no need to draw in a third branch. If Congress does not think that this is important enough to take the big guns out, they should not be able to get the courts to help them avoid unpalatable choices. If they do think that this is important enough, then let them get the guns out.
Here, we have a political dispute between Congress and the Executive. Since the overriding policy in favor a criminal investigation is not present, who knows how the Courts will balance the need of Congress to investigate and the need of the Executive to keep advice private from his personal staff.
Perhaps they will use the political questions doctrine and decline to rule at all. After all, Congress can use other means (impeachment, cut offs of funds) in theory at least to get its way.
As for its political impact, will keeping it in the headlines really affect the President's core supporters? Due to Iraq, his support has already been striped down to the bare bones. The perception among many of those supporters is that this is just political.
Congress can investigate virtually anything in the course of determining whether and what legislation is appropriate. Congress may, for example, want to change the way US attorneys are fired. The Senate has already passed a bill to change the USA Patriot Act procedure for replacing US attorneys. There is no need for suspicion of an underlying crime before a Congressional subpoena can be issued.
As a cautionary note, all parties ought to recall the mess that resulted when Andrew Johnson was impeached, but not convicted, for violating a law passed by the Radical Republicans that required the consent of the Senate for the removal of cabinet officers. His acquittal was not precedent for anything, but it has been commonly agreed since, as the President and Attorney General have both said, that executive officers, including US attorneys and cabinet officers, serve at the pleasure of the President. They really do! He can fire any or all of them on a whim. Now, the cavalier way these US attorneys were dismissed raises my hackles plenty, but it's not a violation of the law to do it unless it obstructed justice. US attorney positions are political patronage jobs. In most cases, they go to pretty good prosecutors, but it is still all about politics.
As to the firing of US attorneys en masse at the beginning of a new administration, it is really no different than the replacement of cabinet members by a new president. US attorneys are lower-level officials, but they are still presidential appointees. The president gets to pick his team, and he gets to make mid-game substitutions.
Nevertheless, Congress clearly has the right to examine the process and make a determination as to what, if anything, it would like to do about it. Don't lose sight of the fact that there is no constitutional requirement that US attorneys be appointed in a particular way or for a particular term. Congress could change their status from presidential appointees to career civil service if it wanted to (unlikely, but it could be done). They are not principal officers who require Senate confirmation. They could put the various offices directly under the control of Main Justice and assign "district chief prosecutors" in each district if they wanted to. Similarly, they could have the chief judge of each district appoint the US attorneys so they would be independent of the political machinations in Washington.
Article Two, section 2, cl. 2 of the Constitution provides.
"but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."
I think it is pretty clear from the quoted material that Congress can structure the system however it wants to (assuming that the President signs the bill or there are enough votes to override a veto). If the present subpoenas might shed light on how to change the system, they can justified as legislatively necessary and will most likely be enforced by the courts. The President can then decided whether to comply a la Nixon, or to refuse. At that point, I suppose, we can start to talk about impeachment, but it is premature now.
Except, evidently, if it was Bill Clinton--he can lie and stay in office.
Yours, TDP, ml, msl, &pfpp
I'm not sure how your attempt to differentiate would matter. Presumably, Congress would either sue the White House to enforce the subpoenas in US District Court (such as the Cheney FOIA case) - that would lead to an argument of standing, but that's a different argument than political question abstention. Or Congress would enforce the subpoenas under their own inherent authority (McCrackan).
From US v. Nixon:
The Special Prosecutor's demand for the items therefore presents, in the view of the President's counsel, a political question under Baker v. Carr, 369 U.S. 186 (1962), since it involves a "textually demonstrable" grant of power under Art. II.
The mere assertion of a claim of an "intra-branch dispute," without more, has never operated to defeat federal jurisdiction; justiciability does not depend on such a surface inquiry. In United States v. ICC, 337 U.S. 426 (1949), the Court observed, "courts must look behind names that symbolize the parties to determine whether a justiciable case or controversy is presented." Id., at 430. [citations omitted]
....
This setting assures there is "that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S., at 204.
[End of Nixon citation]
Thus, if the Court has standing, the contrasting and diametrically opposed positions of the two parties - that is, the Senate and the President - would satisfy Baker v. Carr. Although *standing* might be an issue - and standing will be a question involving statutory and common law interpretation dependant on facts not yet developed - it is difficult to see how the executive privilege argument could be nonjusticiable due to the lack of a "contravery" or due to the question being overly "political."
Of course, just because the Supreme Court *should* rule one way does not mean that it *will* when nakedly partisan interests are at stake (see Bush v. Gore).
Or are those, like outing an undercover CIA agent, not crimes anymore either?
Jogn Bad Elk
If someone who knows there is no crime to justify an arrest, or otherwise knows an arrest is unlawful, may resist a police officer making an illegal arrest to the point of killing them, then surely merely obstructing a specious investigation cannot be unlawful in and of itself.
Yours, TDP, ml, msl, &pfpp
Anonymous Reader
You mean about Valerie Plame, who was not a covert agent, who got her Democratic Party hack husband sent to investigate uranium purchases and who then publicly lied about what he reported Congress for partisan reasons?
That what you man? Gotcha, check.
Yours, TDP, ml, msl, &pfpp
Congress can't sue the President anymore than the President can sue Congress. Subpoenas are enforced by the filing of criminal charges by the DOJ (through the US Attorney for DC). obviously, DOJ won't sue itself. Congress has no authority to engage in a criminal prosecution.
As for McCracken, I would like to see Sergeant at Arms attempt to arrest Mr. Rove or Ms. Miers.
The first, and arguably weakest, is via "civil contempt," which only applies to the Senate, and specifcally excludes use against Executive Branch officials. See 2 USC 288d (2000). This may, however, be used against Ms. Miers as she is no longer an executive branch employee, but a private citizen. There is precedent for this as back during Whitewater, the Senate used civil contempt to compel the disclosre of notes taken during a White House meeting involving then-counsel William Kennedy.
The second statutory method, is the one metioned by several commentators above. The "contempt of Congress statute, 2 USC 192, 194 authorizes the US Attorney for DC to sumbit to a grand jury for indictment any person found by the Congress to be in contempt. This statute was passed in 1857, but has only been used once against an executive branch official. That was in 1982-83 against EPA Administrator Anne Burford. In that case, the DOJ argued that since prosecution was solely within the discretion of the executive branch the statue is unconstitutional and they didn't have to sumbit anything to the grand jury. They sued to obtain an injunction, however, the DC district court dismissed the case and it was never appealed. See United States v. House of Representatives, 556 F.Supp. 150 (D.D.C. 1983). This issue has never been settled. Ultimately in the Burford senario, Fred Fielding, then WH Counsel for Reagan negotiated a settlement that involved the disclosure of ALL of the documents that Congress wanted from EPA, dispite the fact that Pres. Reagan had claimed "executive privilege."
Finally, there is a procedure known as "inherent contempt," which involves an arrest by the Seargent-At-Arms (or the Capitol Police I suppose), trial at the bar of either the House or Senate, and a full vote of the offended body to convict. Either house of Congress may use the procedure independent of the other's consent, and both have done so previously. The history of inherent contempts dates back to 1793, and its use has been affirmed by the Supreme Court several times. See e.g., Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821); see also McGrain v. Daugherty, 273 U.S. 135 (1927). The procedure hasn't been used since 1935, however, as Congress has preferred to use 2 USC 192, 194 instead.
A final note on "executive privilege." It is, despite what the DOJ says, a qualified privilege and has been so held by every court that has ever reviewed it. See e.g., United States v. Nixon, 418 U.S. 683 (1974); In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997); Judicial Watch, Inc. v. Department of Justice, 365 F.3d 1108 (D.C. Cir. 2004).
In the end, the Court's have tried mightly to stay away from these types of disputes. The best example in the "national secuirty" context was in the 1970s involving AT&T and wiretapping. Twice the dispute between Congress and the PResident was heard before the DC Circuit and twice they declined to decide the case on the merits, opting instead to require further negotiations and compromises between the political branches. See United States v. AT&T, 551 F.2d 384, 385 (D.C. Cir. 1976) [AT&T I]; United States v. AT&T, 567 F.2d 121, 124-25 (D.C. Cir. 1977) [AT&T II]. This is a political, fight, not a court fight, and hopefully it stays that way. Whoever is polticlly stronger will previal, right now I'd say that's the Congress, though they have to be very careful with how they proceed, lest they lose what little advantage they may have.
That handbag flailing away would make great television.
Yours, TDP, ml, msl, &pfpp
Is this a test to see how many inaccurate claims you can cram into one sentence?
Nobody's claiming "proof". The claim is that the facts could be interpreted that way, thus justifying additonal investigation.
But I doubt that this will convince anyone who still believes that Valerie Plame was not a covert agent and that she sent her husband to Niger. Do you have any proof of those claims?
So what are the suspected crimes in the remaining cases? Iglesias got a phone call from Domenici, McKay was being pressured to investigate an election, and I'm not even sure what the Demo accusations are for the other five. Granted Domenici acted unethically, but where's the crime in those cases? Assuming the Democrats could prove a link between Domenici's call and Iglesias' firing, and could even show that the link passes through the White House, what law was broken?
Likewise with McKay: some Republicans thought he should investigate voter fraud, he found no reason to investigate, and then he got fired. Even if the Democrats conclusively prove why he got fired, isn't his decision still a judgement call? Where's the crime in that case? Once again it's unethical, but I don't see the illegality.
I just don't see any "high road" purpose for the subpoenas. The only case that might have any illegality is the Lam case, and as mentioned Cunningham's in jail, so the obstruction charge seems pretty far-fetched, no?
I think the fact that Ms. Plame recommended her hubby for the mission has been pretty well discussed and accepted.
I don't feel comfortable with your line of reasoning:
"Nobody's claiming "proof". The claim is that the facts could be interpreted that way, thus justifying additonal investigation."
Anyone can interpret things a number of different ways, that doesn't make it true or should arouse suspicion. I'm pretty sure no one wants to be taken to court or convicted of a crime merely because of an intrepretation of events. Not to say that anyone would be convicted here, but your line of reasoning is wishy washy.
Anonymous Reader
I think my line of reasoning is pretty much essential. In a great many cases, the fact of a crime is not immediately apparent. Sometimes there is no body, but someone disappeared without explanation. Sometimes facts only become clear when something else happens. As we learn new information, we have to make judgment calls about whether the situation calls for a formal investigation of a crime.
In this case, you have several suggestive facts. First, Bud Cummins (the AK Attorney) told Congress that he got a call from McNulty (I believe it was) which he said would have caused him to open an investigation into obstruction of justice had he still been the Attorney. Second, you have emails which on their face conflict with statements Gonzales gave to Congress under oath. Third, you have Domenici and Wilson admitting to making calls which are dubious at best and which Iglesias considered improper. Fourth, you have muddled and inconsistent explanations coming from the WH regarding the facts. Taken together, these seem sufficient to me to warrant further investigation.
These things are handled all the time at the state level in a variety of ways. I'm sure the standing question is not particularly difficult to overcome.
Let's look at her sworn testimony before Congress.
So that's the extent of the "recommendation." If you have any evidence that she lied, show it.
Some of you seem to think that it is a wise thing to attempt to criminalize every stray comment, ignorant statement, and difference of opinion that arises during the course of business in Washington. Jesus help us if you get your way. Just because you demonize the other side doesn't mean that they are actually demons! What's more, they too have long memories. What is the purpose of going out of your way to try to destroy people for trivial offenses? I mean beyond just spite.
And people wonder why the killing in the Middle East goes on and on, generation after generation. It's just human nature I guess... the worst of human nature.
Wow. What a substantive response.
How many of those white house staffers testified under oath to congress about the advice they formulated and provided to Clinton about how he conducted and performed his actual duties as President, and about what he said and they said in arriving at his performance of his actual duties?
That's rich. Plame couldn't have possibly recommended her husband because...she said she didn't.
Btw, The US Senate Select Committee On Intelligence says she's lying. Proof enough for you?
Here's what the memo actually says:
Thus the memo consists of hearsay about recollections by unnamed informants that may or may not have been accurate.
Moreover, I believe the contents have been challenged by one of the sources, who -- if I recall correctly -- stated that it did not reflect what he said and that he wished to enter a correction but was forbidden to do so by his superiors.
I would also ask you to tell me exactly who wrote this document and whether or not its contents were accepted as valid by the entire committee.
So you are offering a dubious document that I know has been challenged by other very well-informed sources and you are using this to impugn the sworn testimony of the one person who knows best what actually happened, and who reports that the opinions express in the memorandum about her role in her husband's trip were refuted in testimony given during the Libby trial.
But given all that, exactly where does this document say that she's lying. It hardly differs from her testimony. It certainly is a far cry from the right wing story that she sent her husband on a junket to Niger.
As you might have guessed by now, I have been around and around about this. Every single item of "proof" presented by right wing sources about Valerie Plame that I've examined turns out to be either unsupported hearsay with no evidentiary value of any kind, or a rotting pile of lies and distortions.
Now let's get back to where this whole thread began.
Why would Congress insist on sworn public testimony recorded on video tape with a full written transcript?
The answer to that question is very simple.
In order to avoid the kind of proceedings that produced the very document that you offer as proof that Valerie Plame was lying under oath.
Yes, but recalling that Plame, unlike Libby, is not going to be tried for anything, wouldn't the net effect of the Fitzgerald investigation be to make any President see that it is unwise for him to allow his aides to testify, if there is any choice in the matter? When disagreement between witnesses (and now any disagreement between testimony and the most tendentious reading of documents) is likely to lead to charges of perjury, and of Administration complicity in obstruction of justice, how could it be otherwise?
"We have no doubt that the District Judge will at all times accord to Presidential records that high degree of deference suggested in United States v. Burr, supra, and will discharge his responsibility to see to [418 U.S. 683, 716] it that until released to the Special Prosecutor no in camera material is revealed to anyone. This burden applies with even greater force to excised material; once the decision is made to excise, the material is restored to its privileged status and should be returned under seal to its lawful custodian."
In contrast, today we have no indictment, no subpoena, no judge to inspect the documents, and no suggestion that the documents will generally be kept private unless used as evidence of a crime. (Indeed, I read that the Judiciary Committee has been making them public on its web site.)
You make my point far better than I make it myself.
You presume that mere disagreement among witnesses will suffice for perjury charges. Unfortunately, for your position, the standard for indictment is much higher (except if it involves a Democratic president, of course, who makes a misleading statement in a civil trial entirely unrelated to any underlying crime).
The real issue is not perjury, but truth. The White House is seeks to avoid the criminal charges that the administration knows will inevitably occur if his aides tell the truth.