John Dean: Harriet Miers's Contempt: Congress Needs To Protect Its Powers: Only One Way It Can Do So

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Fri Jul-13-07 08:50 AM
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John Dean: Harriet Miers's Contempt: Congress Needs To Protect Its Powers: Only One Way It Can Do So

Edited on Fri Jul-13-07 08:55 AM by seafan

Harriet Miers's Contempt of Congress: Are Conservatives About To Neuter Congress, While Claiming Full Legal Justification for this Separation-of-Powers Violation?

By John Dean
July 13, 2007

President George Bush has issued an instruction to his former White House counsel Harriet Miers to defy the House Judiciary Committee's subpoena. The Committee had sought to ask her about her role - and that of others in the White House - in firing a covey of United States Attorneys who were apparently not toeing the political line. Bush's instruction sent a very clear signal: As I wrote earlier, and as has been clear from the outset, he is looking for a fight.
By not responding to the subpoena, the President and Ms. Miers all but invited the House Judiciary Committee and, in turn, the House of Representatives to vote to deem her in contempt of Congress. It was a defiant, in-your-face insult to Congress. No president would do this unless he was quite confident of the outcome. Clearly, Bush's White House and Justice Department lawyers believe that the solidly conservative federal judiciary will grant them a favorable ruling, and that, in the process, they will greatly weaken congressional oversight powers, to the advantage of the White House.

In short, the Bush White House is not bluffing with this act of defiance. Rather, the White House truly wants to test, and attempt to expand, presidential power. Bush's White House is ready, willing, and able to play hardball. Indeed, the White House may actually be trying to bait the House Judiciary Committee and the House of Representatives into voting to deem Ms. Miers in contempt of congress.
..... Long ago, Congress should have oiled up its most powerful tool to require Executive cooperation. No one who follows these matters is surprised that Bush is again pushing the envelope of presidential powers. But it continues to mystify me why Congress does not get its act together, and remind the White House that they are constitutional co-equals.

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Moreover, the Bush White House clearly believes the law is on its side. The Los Angeles Times reports that the Justice Department has provided the White House with a "broadly worded legal opinion" advising that "senior White House officials" can "ignore subpoenas from Congress to testify about the U.S. attorneys affair." This "three-page opinion," the L.A. Times says, "raises questions about whether the Justice Department would prosecute senior administration officials if Congress voted to hold them in contempt." The L.A. Times's article also notes that, under the law, the U.S. Attorney for the District of Columba decides whether or not to pursue such cases when they are referred by the House or Senate for prosecution.

Needless to say, this is an extraordinary legal opinion, but not a surprising one. It is consistent with Bush's embrace of the "unitary executive theory."

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This is a very aggressive position. While it does not reflect the current state of the law, given the pro-presidential bias among so many of the conservative jurists who now dominate the federal judiciary, and particularly the Supreme Court, Bush may well succeed in defending this position if this matter goes to court.

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Congress Needs To Protect Its Powers: Only One Way It Can Do So

.....Finally, if Miers is found in contempt, the House itself can take action against her at the bar of the House. (The Senate can similarly hold such proceedings.) Congress has the power to prosecute contumacious witnesses to require them to comply, and the Supreme Court has repeatedly reaffirmed this power. For example, in 1987, in Young v. U.S., Justice Antonin Scalia recognized "the narrow principle of necessity" or "self-defense" of the Congress in protecting its institutional prerogatives. Scalia said "the Legislative, Executive, and Judicial Branches must each possess those powers necessary to protect the functioning of its own processes, although those implicit powers may take a form that appears to be nonlegislative, nonexecutive, or nonjudicial, respectively."

When all is said and done the only way Congress can protect its prerogatives is to undertake its own contempt proceedings. The parliamentary precedents of the House provide such procedures, by which Congress can effectively protect itself. There is no shortage of past instances where the Congress has held such trials. Readers may want to consult, for example, Hinds' Precedents and Canon's Precedents. Unfortunately, however, this machinery has become a bit rusty, for these procedures have not been used since 1934.

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Given the clear attitude of conservative presidents, who are doing all within their power to make Congress irrelevant, Congress should turn to these underemployed precedents and put them back to work. The House and Senate Judiciary Committees should take the lead in reviving these procedures, and the Democrats' leadership should announce that they are embracing them.
If they do not, Fred Fielding has it right: Officials are absolutely immune from compelled Congressional testimony. Bush can simply tell Congress to stop sending subpoenas to his appointees. However, if Congress does engage in a little self-help at this crucial juncture, it can be sure that not only Harriet Miers, but also George Bush, will be forced to pay attention to congressional subpoenas - for the bottom line is that Congress will not need the cooperation of the other branches to enable it to conduct proper oversight.

John Dean: Harriet Miers's Contempt: Congress Needs To Protect Its Powers: Only One Way It Can Do So

WHY THE HELL ARE WE NOT DOING THIS?