If Condi defies the subpoena & Gonzales refuses to arrest her... WHAT NEXT?

[StefanX]

This is a very complicated issue: What would happen if Condi defies a subpoena from Congress?

She could be impeached. Or she could be arrested -- by police who ultimately report to Gonzales (fat chance!) or by the Sargent-at-Arms who reports to Congress.

I've been reading some fascinating legal comments over at DailyKos regarding this mess:

Two words: subpoena power
by Kagro X
http://www.dailykos.com/story/2007/4/26/14726/4088

We've already got paper saying what the executive branch "must" do, and even what the penalties are if they don't do it. We're already there, and still Rice says, essentially, go fly a kite.

What makes it worth paying attention to when the courts issue that paper is that if you don't comply, there are guys with guns whose job it is to make you either do what you're told, or pay the price for not doing it. The problem is, those guys with guns are part of what the "administration" calls the "unitary executive," and it is President Bush's belief that they work for him. Further, it is his belief that if he tells them to take the day off and scram, rather than enforcing what's on the paper, it's all perfectly legal, because he's The Decider.

So that's the difference between "investigative power" and "enforcement power." And it's exactly why the Constitution requires that the president "take care that the laws be faithfully executed." Because if those laws -- up to and including the laws against standing in contempt of Congress -- are not executed as faithfully against executive branch officials as they are against anyone else in the country, then essentially we have no control over the executive branch whatsoever. And that's not in accord with anyone's basic understanding of our constitutional system of government.
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I think it'll be important to keep in mind these few basic facts about oversight and subpoena power:

1. Subpoenas don't enforce themselves. People either comply with subpoenas because they're afraid not to, or they suffer the consequences of non-compliance.

2. The consequences of non-compliance don't enforce themselves, either. People don't put themselves in jail, you've got to put them there.

3. The people upon whom we usually rely to put law-breakers in jail are law enforcement officers. They work for the "unitary executive," not the courts.

4. A question: If there was nobody to put you in jail for defying a subpoena, would you be bound to honor it? Not would you feel bound? Would you be bound?

5. Finally, if you're not bound to honor a subpoena, is there such a thing as "subpoena power?"



One lengthy, optimistic comment by kovie way downthread struck me as very informed, and I will reproduce it here in full:

Can we please stop chasing our tails here by assuming that there is nothing that Congress can do vis a vis enforcing subpoenas and that it's therefore pointless to even try? ... {T}here is a more direct remedy that not many here have been looking at even though it's staring us all in the face.

The current USA for DC -- the district that would enforce any defied subpoenas -- is Jeffrey A. Taylor (wiki entry here), who was appointed directly by Gonzo under that odious provision slipped into the Patriot Act renewal last year that gives the AG the power to bypass senate confirmation. He is clearly a loyal Bushie who would do everything in his power to help the administration avoid cooperating with Congress's subpoenas.

However, Congress recently voted overwhelmingly to repeal this provision. This repeal has apparently not yet been sent to Bush, but when it is, the votes are there to override his expected veto -- i.e. it's all but a done deal. Furthermore, this repeal is retroactive, such that any USAtty appointed under this provision and having been in office for over 3 months can be immediately dismissed by Congress (at its pleasure -- heh).

Given that Taylor was sworn in late last September, he's a goner the second Congress decides to get rid of him, and there's nothing that Bush can do about it. His replacement would of course be up to Bush to nominate, but also Congress's to reject -- which it surely will, and which neither Bush nor the GOP can do anything about (elections have consequences -- heh).

Once a certain period of time has passed without an official DC USAtty (I'm unclear as to how long this has to be), this repeal throws the ability to appoint a replacement USAtty back to each district's court, as was the case before this provision was enacted. This would, of course, be the same court that would rule on enforcing any Congressional subpoenas submitted to it by this newly appointed USAtty.

The DC district court it presided over by Thomas F. Hogan (wiki entry here). Some of you might remember Hogan from the Plame investigation. Although he didn't preside over this case, it was prosecuted in his court, and he was the justice who signed the order to imprison Judy Miller. And while he's a Reagan appointee, he appears to be a fair and honest justice.

So I think that there's good reason to believe that fairly soon we will have a new DC USAtty who would be more willing to help Congress enforce its subpeonas, and a court more likely to rule in Congress's favor. The question then becomes, of course, who such rulings would fare on appeal, and ultimately before SCOTUS.

On that I am less optimistic, for obvious reasons. But even despite its current makeup and Kennedy's horrible rulings in Bush vs. Gore and in last week's odious abortion case, I still think that there's reason to believe that he might well side with the lower courts (assuming that they rule in favor of Congress), both because of how he's ruled against the administration in several prominent cases (e.g. Hamdan, Hamdi), and because I believe that compared to the precedent cited here, Congress's case would be overwhelming given the preponderance of evidence against the Administration demonstrating very solid standing on Congress's part.

This is of course just one possible path for Congress to take. But I believe that it's a promising and necessary one, in addition to the several others that it could take. No need to make this a one-front war against BushCo. Congress needs to go after it on every available front, and do so full-blast. Every hole that we can blast through its defenses will get us that much close to finally taking it down. And take it down we must, if we're to stop its insanity and destruction.
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Perhaps Dems are keeping this in reserve (both repealing this provision and firing Taylor and every other Bushie USAtty) until the right moment. I have visions of a virtuous "Saturday Night Massacre" in which scores of incompetent and/or dishonest USAtty's are taken out, leaving the administration without its own legal enforcement powers, followed by the rapid appointment of competent and honest USAttys who will go after them and their allies with the full force of the law. Wouldn't that make for incredible political drama, and a wonderful prelude to impeachment proceedings?

Not to mention, um, justice FINALLY being served?

Something tells me that we might well see something like this by year's end.

E.g. Pat Fitzgerald as DC USAtty -- the Fitz of July, perhaps?

by kovie on Thu Apr 26, 2007 at 01:38:38 PM PDT
http://www.dailykos.com/comments/2007/4/26/14726/4088/247#c247

My head is really spinning from all this stuff.

[Captain_Nemo]

1. I would think this might be a "constitutional crisis." n/t

[babylonsister]

2. Not a clue. Supreme Court? Fat lotta good that'll do us. nt

[StefanX]

3. Another perspective: "Why Congress Has The Power To Make Arrests" (by Josh Chafetz @ Slate)

On Wednesday, the House oversight committee voted to subpoena testimony from Secretary of State Condoleezza Rice as part of its inquiry into the Bush administration's claims that Iraq sought to buy uranium from Niger. Today, Rice responded by saying she would reply by letter only — effectively refusing to comply with the subpoena. This, of course, is only the latest in a series of subpoena skirmishes between Congress and the White House. In the wake of the U.S. attorney scandals, congressional committees have issued a subpoena to the Republican National Committee for e-mails sent by White House staffers using RNC accounts and authorized subpoenas for Karl Rove, Harriet Miers, and this week, former Department of Justice aide Monica Goodling and Rove aide Sara Taylor. The administration is balking, invoking executive privilege on all fronts.

In the real world, this is all politics, and political compromise will probably save Rice and the rest from, say, whiling away the month of May in the slammer. In the sort of world that lawyers like to dream of, however, refusal to obey a congressional subpoena can indeed lead to charges of contempt of Congress. From there, we can treat ourselves to a tour of a seldom-used congressional power: the power of each house to use its own sergeant-at-arms to enforce its own rules and privileges. It sounds quaint, but just think: Congress doesn't need a U.S. marshal to knock on Condi's door — it can arrest her all by itself.
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Alas, it has been quite some time since a house of Congress sent its sergeant-at-arms trolling the streets of Washington for wrongdoers. Under current federal law, it's a criminal offense to refuse to appear before Congress when summoned or to commit perjury before a congressional committee. Such offenders are supposed to be prosecuted by U.S. attorneys. But that's exactly the problem with regard to the DoJ-related subpoenas — the people getting the subpoenas and the people enforcing them all work for the same boss.

Federal law can allow the executive to punish disobedience to Congress, but it cannot take away Congress' own punishment powers. Back in 1833, Justice Joseph Story said those powers were utterly necessary "for either house to perform its constitutional functions," a conclusion also reached by the Supreme Court as a whole in 1821. Once a house of Congress finds someone in contempt, it can order its sergeant to go after him. It's really that simple.

http://www.slate.com/id/2165127/fr/rss/

As kovie stated in the comment on Kos above, Congress needs to take a multi-prong approach.

I think the approach should include:

1. Firing all the Bush-approved USAttys (it has this power due to its recent repeal of parts of the PATRIOT Act).

2. Arrest Condi and anyone else who defies the RULE OF LAW.

[SpiralHawk]

6. Congress can arrest crooks and liars on behalf of the honest people of the USA

It may be their patriotic duty to arrest the scalywag republicons who have make a mockery of decency, honesty, and integrity.

[whistle]

4. Subpoena Bush

[ecstatic]

8. I agree. Why beat around the Bush?

No pun intended. Let's go directly to the source and stop wasting time.

[FogerRox]

5. Sargent at Arms of the US Senate......

[StefanX]

7. Yes!

The Sargent at Arms of the Senate has the power to arrest ANYONE -- including the President.

http://en.wikipedia.org/wiki/Sergeant_at_Arms_of_the_United_States_Senate

The Sergeant at Arms is authorized to arrest and detain any person violating Senate rules, including the President of the United States.

It says so right here:
http://www.senate.gov/reference/office/sergeant_at_arms.htm