The Influence Block

by Kagro X

The Hill reported yesterday that certain Republicans were hinting that they might support criminal contempt charges against "administration" officials who refuse to comply with Congressional subpoenas.

Sen. John Cornyn (Texas), vice chairman of the GOP conference, told The Hill on Friday that he thinks Republican cooperation with a criminal contempt finding will be required.

“It’s just a formal process that sets up a legal challenge,” Cornyn said. “We’ve got to cut out some of the politics and get this to the courts.”

One Senate GOP aide, requesting anonymity, agreed that Republicans might approve a contempt finding as a procedural step. Should the White House continue to resist the subpoenas, only one of the two chambers has to approve a criminal citation before the U.S. attorney for the District of Columbia can empanel a grand jury.

Great, right? Not only is it a sign of some conscience among Republicans, but it represents the long-awaited separation between Hill GOPers and Bush. Maybe. Maybe not.

Let's take a look at what Congressional Republicans are ultimately saying about the situation:

“At the end of the day, this will be settled by the courts,” Sen. Bob Corker (R-Tenn.) said.

“I think this is an issue that’s going to be handled by the courts,” agreed Sen. John Thune (R-S.D.).

“In the end, the courts will decide this anyway,” said Sen. Norm Coleman (R-Minn.)

“We can’t have a Congress that’s constantly bringing administration officials in to harass them,” said Sen. Jim DeMint (R-S.C.). “But it’s a matter for the courts.”

Sen. Lindsey Graham (R-S.C.) called a contempt vote “the last thing the country needs,” but advised lawmakers to “let the courts fight this out.”

Hmm. Gee. What do you think Republicans would like to see here?

And more importantly, why do you think Republicans want to see this?

Those of you who've read a little bit about the actual process by which a contempt of Congress charge turns into a criminal case know why. And so does former House general counsel Stanley Brand:

Citing the precedent of a 1982 contempt citation, however, Brand noted another problem: “The U.S. attorney won’t necessarily bring this matter to a grand jury. So it could be an act of futility.”

Again, those of you who've read about the process of bringing contempt charges know that the 1982 citation Brand references is that of Reagan era EPA Administrator Anne Gorsuch Burford, and that in that case the US Attorney, at the instruction of the White House, declined to prosecute the charges, and instead filed suit to enjoin enforcement of the contempt charges.

Bit of bad news for you on that score, folks. The White House counsel who drove the legal strategy in the Gorsuch case?

One Fred F. Fielding.

And your current George W. Bush White House counsel?

Mr. Fred F. Fielding.

In 1982, during current White House Counsel Fred Fielding’s first stint in the position, the U.S. attorney declined to bring a contempt charge against a Reagan administration official, instead seeking an injunction against the House.

Wow. Whoops!

But Leahy has predicted that the capital’s sitting U.S. attorney would be hard-pressed this year to ignore a criminal finding.

Oh. Well, that's good. "Hard-pressed."

Like with the Libby non-pardon pardon.

And that's the thing to be thinking about here. George W. Bush has just demonstrated for us that he approaches such decisions with no feelings of trepidation. Why would he be any more concerned about either directing the already-corrupt Alberto Gonzales "Justice" Department to block any contempt prosecutions?

Or worse, send word to Congressional Republicans that they're free to cover their asses politically by appearing to split with him in approving contempt charges, just as we cheer Congressional Democrats for threatening. Why might that be "worse?" Well, at this point, we have to ask what prevents the "administration" from using the court proceedings to run the clock, only to undo it all with a raft of pardons for the convicted contemnors?

In other words, do we have any guarantees that this isn't the political equivalent of football's "influence block?" What do football coaches tell players about that?

An influence block is not really a block. It is a technique used by the offensive linemen to get the defenders to look or pull in the wrong direction therefore making it easier to trap the defender or to take him away from the play. The influence block is the hardest block for a defender to defeat. In fact, the only way I know to defeat the Influence block is to read the scouting reports and watch the game films. And when you see that a team is using the influence block, let your defensive linemen know so that they may be ready for it. Sometime just knowing that your opponent uses this block, is enough to keep you out of trouble.

Maybe that's better known to you in terms of Uncle Remus' briar patch. But the influence block is all about convincing defenders that things are going his way, and that he's beaten his man. Then, rushing forward to the spot where he's sure his superior skills have allowed him to meet and tackle the ball carrier, he finds instead that the running back has gone behind him, right into the spot where he once stood. The blockers have let the defense penetrate the backfield and thereby taken them out of the play, but all the while the defenders were sure this was the moment they'd been waiting for, and they'd finally won the battle.

And the only way to defeat the influence block? Study the game films. What does the opposition have a record of doing? Fred Fielding brings experience in blocking contempt prosecutions outright. Bush himself brings experience in short-circuiting the whole process with pardons.

What do the scouting reports tell you, Judiciary Committee Democrats?

Comments

[P J Evans]

Kagro, I think the Judiciary Committee needs to bring in experts to do the questioning; their performances haven't been impressive in the last few outings. Otherwise they're going to get suckered, again. (They seem to be really easy to sucker. H*ll, Monica Goodling was able to do it to them.)

[Seamus]

EW, do you know who the lawyers are that the the Committees are relying on, particularly in the House, where we have seen such discontinuity in tactics? If they are not on the same page, and can't reign in their less talented clients who seem to be letting face time in front of cameras trump good strategy, then this is a losing battle. The same theme appears every time, Republicans have a unified strategy, Dems are all over the place and look like amateur hour, and the clock ticks away.

[Seamus]

Sorry, meant to ask you, Kagro

[FPA]

We, all Americans, are in debt to you for your dead-on analysis. I hope some bright Congressional aides pick this up and get their leaders prepared. Thanks for the heads up !!!

[bmaz]

Kagro X - You are exactly right. These "friendly Goopers" just want it shuffled off to court so they are not browbeaten with it and shown up to be the hypocritical jackasses they are. They know full well that this will get lost and die a slow death in the court system regardless of how Jeff Taylor handles it. Hell, it might even make sense for Taylor to run with it a little to make sure there is just enough court action to prevent the Dems from availing themselves of other modalities. Somebody has to be impeached; it is simply imperative. Whether it is Gonzales, Cheney, Bush or all three. But we need desperately the unobstructed powers available through the impeachment process.

[Neil]

great post Kargo. well researched and compelling... obvious really... now that you've done all the heavy lifting.

[Neil]

Take back our country - mmm peach mint

[Basharov]

If Cornyn is in favor of it, then you can be sure that the fix (with the DOJ) is in.

[Dismayed]

Your bet your ass the fix is in. The talking point is out there. Cornyn telegraphed what they want weeks ago. To hell with the courts, impeachment is the only play here. We're about to see who the men are and who the boys are. Are we going to get serious about the constitution or are we all just watching political theatre'?
Do we live in a republic or is it just for show? I'm sadly afraid it's the latter, and we'll know for sure in a month or two.

[aquart]

Well, they may believe the fix is in. But I can't imagine many happy conservative judges right now.

Sentelle and his buddies ruled and Georgie made crap of their ruling. Roberts' satanic court ruled that 33 months was peachy and Georgie ignored it.

If Georgie isn't checked, his accrued power passes intact to the next president. And not one candidate in either party has renounced a shred of it.

[Eureka Springs]

Sounds a whole lot like "Bring it on" to me. Lets keep them talking about it while team D figures out the next step.. It's good for the country. Thanks for a great post.

[Beel]

As Digby has argued elsewhere, mmmm peach mint is like everything else, fundamentally political. (Actually, Mao argued this.) A failed impeachment will only help the GOP even more. It's horrible but true.

[cromulant]

Dems = Suckers

[Kagro X]

Horrible but "true?" Based on?

Everything "helps the GOP," it seems. Best plan: don't fail.

[*xyz]

Beel - why would impeachment fail and how would failed impeachment help the GOP? You haven't given support for either of these claims. Why are we supposed to cower in fear of unsupported and unlikely predictions of negative outcomes of impeachment when the negative outcomes of *failing* to impeach are real, imminent, severe, and crippling to our Constitution?

Kagro X has shown by a review of the facts and historical context that we are likely walking into a trap by pursuing contempt charges only and by failing to put impeachment on the table.

Now, those who are against impeachment at this point bear the burden of proof to support their fearful predictions about the outcomes of impeachment. All I have heard so far are comparisons to Clinton, but I am here to tell you that the circumstances of a Bush impeachment would be totally different on every metric of comparison. Apples and oranges.

Bottom line - we are Constitutionally obligated to impeach and any movement towards impeachment will be met with widespread approval by the american people. Those who claim there are downsides to impeachment must support these claims or risk being labeled anti-impeachment concern trolls.

[emptywheel]

Not to mention that the USA for DC is Jeff Taylor--a clique member turned USA for investigating DC.

[snakedoctor]

If a "pro" football team failed to anticipate influence blocks as many times as the Dems have been stymied by Rove & Co., one would have to entertain the possibility of a fixed game. It wouldn't surprise me if the Repubs' election strategy involved orchestrated accusations of Democratic incompetence for failing to stop their own criminal behavior ("We were just begging to be caught!").

How would the results of an unsuccessful impeachment be worse than wholesale abandonment by disgusted voters throwing their support to anyone but Democratic incumbents? What could be worse than what we have right now?

[Jan]

Thank you, *xyz. The downsides to _not_ impeaching far outweigh the fear of impeaching. I'm tired of (the GOP's) fear for fear's sake. I am fed up with lies. I happen to still believe in what my country was founded on and am desparate to see some integrity in my elected officials and in my government. Action, please! Impeach. Please.

[Kathleen Grasso Andersen]

I think widespread voter apathy will be the result of not impeaching Dopey and Darth.

Why should any of us respect the rule of law if Dopey and Darth can use the Constitution for toilet paper? Why waste time doing the court thing? It's stacked in their favor. Just get on with your duty and IMPEACH for God's sake.

I'll not contribute to any candidate that did not support impeachment, period. I'll vote, but I'll not invest my brain time or emotional energy helping limp wristed Repugnican Lites. If it's all about them keeping their jobs, they can figure that out without my help.

Wake me up when impeachment proceedings begin. zzzzzzz.

[Neil]

Chairman John Conyers Jr. (Mich.) announced a hearing for next week to explore what he called "the presidential authority to grant clemency and how such power may be abused."

"Taken to its extreme," he said, "the use of such authority could completely circumvent the law enforcement process and prevent credible efforts to investigate wrongdoing in the executive branch."

link

[Neil]

nolo fwiw

... the 2 1/2 years handed Libby was much like the sentences given others convicted in obstruction cases. Three of every four people convicted for obstruction of justice in federal court were sent to prison, for an average term of more than five years.

Analysis: Pardon Shows Worst in Politics
By Ron Fournier, AP
LINK

[BillE]

They should proceed with contempt of congress just to keep putting the bastards on record. Also, start impeachment proceedings against Cheney and Gonzo. Very hard for Pelosi to impeach all of them with herself in line of succession. Maybe to placate the senate R's they could work a deal to let a R who is not a pres candidate first be Veep then impeach chimpy and become pres. The R's are all so f*cking corrupt can't imagine who could be the next Ford though.

On second thought Cheney/Rumsfeld got their start in the Ford admin. Just kick em all out...

[Katie Jensen]

I would like to ask those who read this blog to consider writing to olbermann, bill moyers to see if we couldn't get a series of discussions to discuss the topic "what to do with our wayward president?" I would really like to see a discussion including senators, lawyers, constitution experts, to brain storm tools that our democracy gives us to confront our current crises. I would like impeachment to begin but I really do not want to see Iran/contra happen again. I feel the only way to avoid this is to begin our own liberal think tank and let the american people witness the discourse and join the discussion.

Of course I think this topic would be perfect for Moyers but would need publicity that Olbermann could provide. It think the discussion needs to be brought together quickly in light of Bush's latest decision.

Anyone else out there willing to ask for a forum such as this?? Please e-mail Moyers or provide other possible ideas. I want to hear the options, the pros and the cons. I want to the democrats to go into this with our eyes wide open this time using facts, past behaviors and the best and the brightest to pull together to save our democracy.

[whaleshaman]

it's a trick.

as for respecting the rule of law, i'm on deck to be called to serve as a juror at the federal level.

i completely mistrust the system under gonzales, and if asked, i hope i have the courage to say so.

on the other hand, maybe some poor bastard could use my considered judgment.

the forms we are asked to fill out actually include having to reveal what our bumper stickers say, what groups we give money to, what subscriptions we get. [let's see: greenpeace, aclu, nrdc, dnc, ai, planned parenthood.]

hmmm, can revelation of web feeds on my browser be far behind?

btw, thanks for your great posts.

re: roberts' satanic court got quite a slam in today's main editorial at the nyts.

too bad the rest of the paper is filled with the writings of stenographers and cowards and collaborators.

[John Lopresti]

John Dean hired Fred Fielding for the chore of the executive privilege game plan. An anticivil rights activist lawyer in Fielding's office was John G. Roberts, now Chief Justice of the US Supreme Court. Here is the bulk of a memo on Gorsuch as pawn strategized by Roberts in 1982:

The White House, Washington, December 23, 1982 MEMORANDUM FOR FRED F. FIELDING
FROM: JOHN G. ROBERTS
SUBJECT: Amended Complaint in United States v. The House of Representatives

The Civil Division has requested comments by the close of business today on a proposed amended complaint in the Gorsuch case. It intends to file the amended complaint on Monday, December 27, 1982. There are three major changes from the original complaints:
1. Anne Gorsuch is added as a plaintiff...2. Demands for injunctive relief have been deleted...3. Paragraph 30 of the amended complaint is new. It presents the argument that it is impossible for Gorsuch to comply with the subpoena, because she has no authority to do so after having been directed by the President not to produce the documents. This argument is based on Touhy v. Ragen, 340 U.S. 462 (1951), which held that a subordinate Department of Justice official could not be held in contempt for failure to produce documents when the Attorney General, through a regulation, had directed him not to do so.
[snip]
The logical consequence of any argument based on Touhy v. Ragen is that the contempt citation should be directed against the President himself, not [Ms.] Gorsuch. Should the court agree with this argument, the logical step would be for Congress to reframe its citation as one directed against the President, and the privilege issues would then be presented for decision. This is implicit in the majority opinion in Touhy v. Ragen, 340 U.S., at 467, 469, and explicit in Justice Frankfurter's concurring opinion, id. at 471-473.

I am not certain that Touhy v. Ragen applies to this case at all: there is a significant difference between a lower-level employee following the order of the Attorney General and a Presidential appointee carrying out a Presidential directive. If successful, the argument in paragraph 30 would simply delay ultimate resolution of the basic issue, assuming Congress responded to a decision based on Touhy v. Ragen by reframing its contempt citation. And the downside is significant: a Congressional contempt citation against the President--the logical result of the argument in para.30--could be very politically damaging. With [Ms.] Gorsuch in the case there is at least a "buffer" separating the President from the dispute. I see no reason why the privilege issue cannot be decided in the context of a contempt citation against Gorsuch. We do not gain anything by reframing the dispute as one directly involving the President, and this is all that the argument in para.30 would do.

I strongly recommend that you object to para.30 of the amended complaint, perhaps in a call to Deputy Attorney General Schmults.
____
Reproduced at the Ronald Reagan Library

Last week a constitutional law expert had the following reflections on dissimilations by Roberts and Alito at their respective confirmation hearings, balanced against both nominees' actual performance once the senate approved their accession to Scotus.

First, the local US attorney in DC, as ew has highlighted; ultimately, a fallback position to arguing before a friendly Scotus.

In a related structural matter, I hope the Fourthbranch dispute receives congressional scrutiny. There could be a more efficient way the branches serve one another and the electorate. Meanwhile hearings and subpoenas are proving effective.