by Kagro X
So, Democrats have won back the Congress. Impeachment is "off the table," but Pelosi apparently stands by her assertion that the most valuable part of the victory will be "subpoena power." We're going to have investigations. And the environment is "target rich" enough, it seems, so that Rep. Henry Waxman, the presumptive chair of the Government
Operations Reform and Oversight committee (the Republicans changed the name from Operations to Reform and Oversight in the wake of their 1994 victory, perhaps preemptively overcompensating for their later intention not to conduct any) says, “The most difficult thing will be to pick and choose.”
But as we've discussed in the past, it's entirely possible
that the "administration" may simply refuse to comply with
Congressional subpoenas (or may comply only very selectively), whether by
invoking the power of the "unitary executive" to block the service of
those subpoenas and/or the prosecution of charges of contempt of Congress (the
presumptive penalty for non-compliance), or by engaging in a
delay-and-litigation strategy aimed at running out the clock before the issues
are settled in court -- if they can be settled there at all.
Recall that Congressional subponeas are served by the U.S. Marshals Service, and contempt is prosecuted at the discretion of the U.S. Attorney, both under the control of the "unitary executive." And that Cheney has said he will not testify, even if subponaed. And that the "administration" is apparently promising to resist any effort to curtail executive power with "a cataclysmic fight to the death" that will include a program "to assert that power, and they're going to fight it all the way to the Supreme Court on every issue, every time, no compromise, no discussion, no negotiation."
Now, some would describe the "cataclysmic fight to the death" as the nightmare scenario. But that scenario at least has a likely ending that's capable of settling the question: impeachment. The nightmare scenario for me -- and likely for emptywheel, as well -- goes like this:
Investigations proceed (whether necessary or not). Subpoenas are issued. Assuming their proper service, the "administration," depending on who gets the first subpoenas, perhaps asserts the "tradition" argument. As Cheney put it to George Stephanopoulos:
STEPHANOPOULOS: You’ve talked a lot about the consequences of the Democrats taking over congress in the last week. Nancy Pelosi said this: “we win, speaking of the democrat, we get subpoena power.” If you’re subpoenaed by the Democrats, would you go?
CHENEY: I have no idea that i’m going to be subpoenaed. Obviously, we’d sit down and look at it at the time. But probably not in the sense at that Vice President and President and constitutional officers don’t appear before the Congress.
STEPHANOPOULOS: That’s your view of executive power? You’re not going to go up and testify.
CHENEY: I think that’s been the tradition. I can’t remember the last time a President did appear before the Congress. Or a Vice President.
STEPHANOPOULOS: Gerald Ford, I think.
CHENEY: That’s right. But not on a subpoena, he did it on his own.
Failing that, the next fallback position is litigation, with a particular eye toward running out the clock. What to litigate? Well, litigators themselves know that you can sue over just about anything. And those who've watched this "administration's" litigators know that they'll go to court with cases that a few short years ago would've had you pissing your pants with laughter. So why should this one be any different? They'll be claiming that for Congress to compel testimony from the executive -- and particularly from certain high-ranking officials on matters bearing on "national security" -- is... a violation of the Constitutional separation of powers.
And, if you've picked your jaw up off the floor and are ready to move on: they'll be right.
Or at least, they'll have a colorable claim. Because there really is some truth to that. For the legislative branch to be try to compel some particular action from the executive does raise exactly that issue. Now, it's true that the legislative branch orders the executive to perform particular actions all the time: furnish thus and such information, prepare a report on this or that by some date certain, etc. Or at least, that used to be the case. But those who've followed the story of Bush's record-shattering numbers of signing statements know that the "theory" this president most often relies on in issuing them is his "inherent power" to act as the nation's sole authority in matters of "national security" (and maybe others, or any), unconstrained and unconstrainable by either the Congress or the courts.
The intent, of course, is to run out the clock until January 2009, and then moot the whole thing, leaving the Nixon/Reagan/Bush doctrine locked in place by this "ratchet" system, waiting to be pushed forward by the next Republican elected to the White House.
But along the way, Democrats who had counted on taking impeachment "off the table" and depending instead on their plan to expose the wrongdoing of the Bush "administration" will find that they're once again stuck defending the "nuanced" position, against a White House brazenly claiming the mantle of True Defenders of the Constitution, as always, in defiance of all logic. We'll be stuck in the position of seeking to violate the separation of powers in order to nail the "administration" for violating the separation of powers -- a doctrine we were for, before we were against, I guess. And at the end of the rainbow? A pretty good chance the courts will say, "This is a political problem. You know what your remedy is."
Then, the clock strikes noon, a successor is sworn in, and so it is that this panoply of impeachable crimes joins those unpunished in the wake of Iran-Contra.