Subpoenas; Now What?

So the subpoenas are out. What are we looking at?

by Kagro X

Wed Jun 27, 2007 at 06:04:02 PM PDT

OK, so the subpoenas have been issued:

The Senate subpoenaed the White House and Vice President Dick Cheney's office Wednesday, demanding documents and elevating the confrontation with President Bush over the administration's warrant-free eavesdropping on Americans.

Besides issuing the subpoenas, the Senate Judiciary Committee also is summoning Attorney General Alberto Gonzales to discuss the program and an array of other matters that have cost a half-dozen top Justice Department officials their jobs, committee chairman Patrick Leahy announced.

What happens if the White House and the VP tell Congress to go Cheney itself?

Essentially, the Senate's options for dealing with non-compliance are:

1. Move to hold the targets of the subpoenas in statutory contempt of Congress
2. Move to hold the targets in inherent contempt of Congress
3. Extend the deadline for compliance and make threats regarding either #1 or #2 above
4. Come to some negotiated settlement with the "administration" -- i.e., closed door, no transcript testimony, limited document release, etc.
5. Do nothing, complain loudly about obstructionism, stonewalling, and lawlessness, and hope that voters elect Democrats in 2008, because Republicans are so nasty
6. Ask the House to impeach

That's really about it. Most likely outcome? If history's any guide, the answer lies somewhere in the neighborhood of #4. Although it should be said that history's never really been any kind of a guide for this "administration." But there's always a first time for everything, and no doubt when backed into a corner, the White House gang will be depending on the quasi-precedent of the negotiated settlement to save its bacon (or at least allow them to futz around long enough to run out the clock and slip out the back door in January 2009).

Problems?

Well, statutory contempt of Congress is prosecuted at the discretion of the U.S. Attorney for the District of Columbia. And we know where the U.S. Attorneys' offices are at these days. But has the U.S. Attorney ever declined to prosecute such a case? Yes it has: EPA Administrator Anne Gorsuch, during the Reagan administration.

How about inherent contempt? Well, that takes the Justice Department out of the loop. But it's a daring move, involving trying the contemnors at the bar of the Senate, and possibly arresting and imprisoning them on the direct authority of the Senate and its Sergeant at Arms. Has it ever been done? Yes it has, though the last time was over 70 years ago.

Extended deadlines, negotiated settlements and doing nothing all carry their own peculiar problems, mostly political. Will the executive branch ever take the legislative branch seriously if they don't hold the line? Will voters take Congress seriously? Will they be angry? Grateful? Indifferent? And what will future presidents think they're likely to face if this Congress lets this president slide?

And finally, impeachment. We know the problems, and don't need to list them again. But is this really an impeachable offense?

(More after the jump.)

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Yes it is:

Article 3

In his conduct of the office of President of the United States, Richard M. Nixon, contrary to his oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives on April 11, 1974, May 15, 1974, May 30, 1974, and June 24, 1974, and willfully disobeyed such subpoenas. The subpoenaed papers and things were deemed necessary by the Committee in order to resolve by direct evidence fundamental, factual questions relating to Presidential direction, knowledge or approval of actions demonstrated by other evidence to be substantial grounds for impeachment of the President. In refusing to produce these papers and things Richard M. Nixon, substituting his judgment as to what materials were necessary for the inquiry, interposed the powers of the Presidency against the the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.

In all of this, Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States.

Wherefore, Richard M. Nixon, by such conduct, warrants impeachment and trial, and removal from office.

Adopted 21-17 by the Committee on the Judiciary of the House of Representatives.

Just wanted to remind everyone of that.

Get your popcorn, and send your Congresscritter a note of encouragement. The options going forward are limited, and they're going to need to stiffen their spines for a long fight if they're going to offer any serious resistance to the Bush "administration's" vision of the New Imperial Presidency.

White House Contempt

White House contempt

By Susan Crabtree

June 22, 2007

House Judiciary Committee Democrats warned yesterday they would pursue a contempt of Congress motion if the White House fails respond to subpoenas for testimony and documents related to the firings of U.S. attorneys last year. The deadline for a response is Thursday, June 28. If the White House does not comply, it opens the possibility of a constitutional showdown between the two branches. In an ironic twist, the Department of Justice (DoJ) would be called on to enforce the contempt motion. During yesterday’s testimony by Deputy Attorney General Paul McNulty, panel Chairman John Conyers Jr. (D-Mich.) asked McNulty whether he would enforce such a motion. McNulty responded that he would recuse himself from handling such matters because of an internal DoJ investigation into the U.S. attorneys matter. One of the contempt motions would likely be directed at Presidential Chief of Staff Josh Bolten, to whom the subpoena for documents was addressed, according to a Democratic aide. Others who could face contempt motions include ex-White House Counsel Harriet Miers and former White House political director Sara Taylor. Last week, the House Judiciary Committee voted to subpoena testimony from Miers, while the Senate Judiciary panel voted to subpoena testimony from Taylor. “The House and Senate judiciary committees have issued subpoenas to the White House for documents and testimony,” said Conyers. “We’re still hopeful they may cooperate. But it’s still possible that enforcement action may be taken.” Democrats have been unsatisfied with the testimony they’ve heard so far from top officials and former officials at the DoJ, including Attorney General Alberto Gonzales. Under questioning, all have said either that their roles were limited or that they were not directly responsible for suggesting certain U.S. attorneys be placed on the firing list. Because of these claims, Conyers said, Democrats’ only choice is to seek more information from the White House. “We want to know where the lines go from the DoJ to the White House,” he said. “That’s where these bread crumbs keep leading us and then they get lost in the snow or something.” Conyers said he wanted McNulty to go on the record about the DoJ’s commitment to enforcing such a contempt motion, but his question was an indication of the Democrats’ awkward position. If the House passed the motion, it would be referred to the U.S. attorney in the District of Columbia. The DoJ would then be called on to enforce it. After the hearing, Conyers said he was not satisfied by McNulty’s testimony. “It was not a fully candid discussion,” he said. Conyers said McNulty was walking a fine line between defending his previous testimony and wanting to avoid contradicting other DoJ officials’ accounts of his role in the firings. Some have stated that he misled Congress in previous testimony. The chairman also said McNulty was trying to avoid antagonizing former DoJ White House liaison Monica Goodling, who was granted immunity. In her own testimony before the panel, she accused McNulty of not being forthcoming in his February Senate testimony about the White House’s involvement in the firings. She also rejected any suggestion that she had misled McNulty when she briefed him for that appearance. McNulty agreed with lawmakers’ depictions of him as largely “cut out of the loop” during the process of determining which U.S. attorneys to fire, being brought in only at the end of the process, essentially to sign off on the list of names. He said he first learned about the firing list in October 2006, and that he attended his first meeting about the firings Nov. 27. But he claimed he didn’t discuss the matter with Gonzales until Dec. 7, the day the prosecutors were asked for their resignations. “I think you were poorly treated,” remarked Rep. Bill Delahunt (D-Mass.). “It’s my belief that you were thrown under the bus.” McNulty pointedly refused to say that anyone, including Goodling, misled him while he was preparing for February testimony. When news was breaking about the U.S. attorneys’ controversy back in January, he said, the department was “moving quickly” and “trying to respond to questions.” “I’m not in a position to conclude that individuals were trying to keep information from me,” he added. McNulty also acknowledged that an Oct. 4, 2006, a phone call by Sen. Pete Domenici (R-N.M.) complaining about the performance of then-New Mexico U.S. Attorney David Iglesias kept him from objecting to Iglesias’s placement on the list of those to be ousted. He did not disclose the influence of Domenici’s call during his February Senate testimony. McNulty testified that he was given the opportunity to voice his objections to the names on the list and that at least one U.S. attorney was taken off the list at his suggestion. He refused to disclose that attorney’s name, even though media accounts have identified the prosecutor as the U.S. attorney for Tallahassee, Fla., Greg Miller.