Are Conservatives About To Neuter Congress, While Claiming Full Legal Justification

[Demeter]

http://writ.news.findlaw.com/dean/20070713.html

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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 W. DEAN
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THIS IS THE CONCLUSION---I URGE YOU TO READ THE WHOLE THING!

If the House votes Miers in contempt, they can also institute a civil legal action by seeking declaratory judgment from a federal court to compel enforcement of their subpoena. However, there is a growing body of law, coming from conservative jurists, calling for conflicts like this between the executive and legislative branch to be considered "political questions" that are improper for the federal courts to resolve. Thus, it seems likely that the Court might - citing the political-question doctrine - decline to take jurisdiction over this clash, thereby leaving the White House's status quo untouched. For the Bush Administration, the worse case scenario, as Lederman suggests, is simply that the courts will seek to force a political settlement.

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.

Congress Must Avail Itself of Traditional Procedures to Compel Testimony and/or Punish Contempt

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.


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John W. Dean, a FindLaw columnist, is a former counsel to the president.

[yurbud]

1. this is why Democrats should have been more obstructionist on confirmations the last six years

instead of bending over and pulling their cheeks apart.