Looking ahead: what happens when the subpoenas are defied?

by Kagro X

Cross-posted from Daily Kos. A lot of this will already be familiar to folks here.

Last week, both the House and Senate Judiciary committees approved the issuance of -- but have not yet issued -- subpoenas compelling the testimony of Karl Rove, Harriet Miers and others who are or were among George W. Bush's inner circle during the decision-making on the firing of the eight dismissed U.S. Attorneys. Bush, for his part, has signaled his intention to have his aides defy those subpoenas, saying he'd fight it out in court to the bitter end.

But what kind of battle can we expect over these subpoenas? How might such a fight turn out? What issues would be raised? And are the courts the only arena in which the questions might be settled? The AP's Matt Apuzzo examines the risks:

President Bush has tried for years to reassert a White House right to keep secrets from Congress. Now he must decide how far he wants to go to keep aides from testifying about the firing of federal prosecutors. If he claims executive privilege and the dispute ends up in court, the fight with Congress will be refereed by a judicial branch that recently has not been kind to the presidency in fights over subpoenas. Lawmakers, meanwhile, risk seeing a judge permanently curtail their power to summon presidential aides to Capitol Hill.

That's a high stakes game. So high, in fact, that it's precisely the sort of case the courts tend to punt, under the so-called "political question doctrine." Political questions are those the courts will -- at least initially -- refuse to decide, preferring to leave the outcome in the hands of the political branches (the executive and legislative), on the theory that the power to decide them resides more properly with those who derive their authority from the voters.

Indeed, Apuzzo's article illustrates the point with this comment:

"I don't think anyone would want this in court. If anything is to be politically settled, it's this one," said Louis Fisher, a Library of Congress specialist on constitutional and an expert on presidential powers.

Fisher's "anyone" could refer just as easily to any or all of the three branches. Both the executive and the legislature have substantial powers at risk, while the judicial branch would simply want no part in settling the question.

How do we know this about the courts? Because that's exactly what they did the last time such a case was brought. And that case is instructive today.

The last time the Congress actually voted to hold an executive branch official in contempt of Congress was in the 1982 case of EPA Administrator Anne Gorsuch Burford. Gorsuch (who was later remarried, to Bureau of Land Management head Robert Burford) was found in contempt by a House vote of 259-105 (with 55 Republicans voting in favor). The charges were, in keeping with practice in statutory contempt cases, referred to the U.S. Attorney for the District of Columbia for prosecution.

And a lightbulb switches on! The actual prosecution of contempt of Congress charges is the responsibility of a U.S. Attorney.

What an extraordinary piece of bad luck, given the current situation!

So now, obviously, the most recent case of contempt of Congress brought against a high-ranking administration official takes on added importance as precedent. Does it not? And just what happened in that case? (PDF)

The Justice Department, anticipating the House vote, moved quickly: “Immediately after the House vote and prior to the delivery of the contempt citation,” the department chose not to prosecute the case. [Notes omitted]

Surprise! But that's not all:

Instead, it asked a district court to declare the House action an unconstitutional intrusion into the President’s authority to withhold information from Congress.

Stanley S. Harris, responsible for bringing the case to a grand jury, listed his name on the Justice Department complaint and advised Congress that "it would not be appropriate for me to consider bringing this matter before a grand jury until the civil action has been resolved."

The Justice Department occupied an unusual ethical position. First it had advised Gorsuch to withhold the documents, and now it decided not to prosecute her for adhering to the department’s legal analysis. In court, the department argued that the contempt action marked an "unwarranted burden on executive privilege" and an "interference with the executive’s ability to carry out the laws." [Notes omitted]

So, what happened in court?

The court dismissed the government’s suit on the ground that judicial intervention in executive-legislative disputes “should be delayed until all possibilities for settlement have been exhausted.” The court urged both parties to devote their energies to compromise and cooperation, not confrontation. [Notes omitted]

Dismissed. Because the case turned on a political question.

So Congress was right? Right? Not according to the Reagan administration:

Following the Gorsuch contempt, the Office of Legal Counsel wrote an opinion on May 30, 1984, concluding that as a matter of statutory interpretation and separation of powers analysis, a U.S. Attorney is not required to bring a congressional contempt citation to a grand jury when the citation is directed against an executive official who is carrying out the President’s decision to invoke executive privilege. [Notes omitted, and emphasis supplied]

Any questions, then, about what the current "administration" intends to do with respect to these subpoenas?

Up next: What the Congress can do about it, and which Members -- if any -- are thinking about how to deal with that conflict.

Comments

[mainsailset]

I see RawStory was picking up on Sampson deciding to invoke the fifth in front of Leahy's committee this week. Us out to sea folk would call that battening down the hatches.

[mainsailset]

change that to Monica Goodling taking the 5th, Josh just corrected.

[William Ockham]

Kagro X,

This post currently looks a little messed up (partially duplicated content). FWIW, I'll put my advice out there. The Judiciary Committee ought to begin impeachment proceedings against Alberto Gonzales. That would be pointless if we were dealing with any other White House (any other AG would have already resigned), but this one just might to try to fight it out. If they did fight it, the constitutional grounds shift considerably. I can't imagine a scenario where executive privilege would trump an impeachment investigation.

[Mimikatz]

The first step in impeachment is drawing up the charges. The ground is shifting so fast, that is difficult to do, but i wouldn't be surprised if Conyers has some staff looking into that. Then the Committee debates the charges. We are nowhere near ready for that phase because so much is still unfolding. I'd look at Conyers' document and testimony requests. He's going to build a case at least for lying to Congress through the people just below Gonzales.

And Monica Goodling taking the 5th really doesn't look good for them. How can a taxpayer-supported employee refuse to testify to Congress?

[Mimikatz]

But did they get to the Ninth Commandment?

As for Monica Goodling,

Of the aide, Monica Goodling, who has served as the Justice Department's liaison to the White House, the lawyer notes, "She's a graduate of Regent University Law School in Virginia Beach - a law school that teaches law from a Christian perspective," accredited fairly recently, in 1996.

(H/t Laura Rozen.)

[P J Evans]

How can a taxpayer-supported employee refuse to testify to Congress?

And also have a lawyer whose charges will eat her annual pay in a week, too; over at FDL someone commented that Dowd's bill must already have hit 10K. Is there a Monica Goodling defense fund that we haven't heard about?

[Sara]

Should Conyers get a hopper full of impeachment resolutions, citing the AG's lying to Congressional Committees, and then lay out an investigation, he could give Goodling limited use immunity to testify in an impeachment investigation. Likewise, Executive Privilege is not all that useful in an impeachment process -- which would get Conyers to Rove-under-oath.

There is also an old process -- I believe the last time it was used was during Teapot Dome, where the House can try a contempt of Congress charge in the well of the House, and use its own "Cell in the deep Basement" to keep custody of one found in contempt until they testify, and void their contempt. Back in the early 1960's a friend was working for Hubert Humphrey, and he got me in on a tour of the never seen bits and pieces of the Capitol, and I vividly remember the little jail, which was built at the time of the Civil War -- and it had no toilets, just Chamber Pots. I don't know whether they would want to revive this old Contempt of Congress process -- but Turdblossem on Chamber Pot gets a giggle from me.

[Kagro X]

Gah, nothing's ever easy, you know? Reformatted.

[Kagro X]

By the way, as a treat for TNH readers, I'll give you a sneak preview of what's next: certain Members of Congress are taking a hard look at dusting off the antiquated procedure of "inherent contempt," involving the charging, arrest, trial and imprisonment of contemnors all exclusively under legislative branch authority.

[TiredFed]

Marcy

The House used to conduct its own contempt proceedings up until about 70 years ago. I half-jokingly suggested someone ask Sen Byrd how it's done. Since there is an inherent conflict of interest in the DOJ investigating itself, the Congress has to go back to taking care of its own business. Unfortunately, Fitz' mandate doesn't cover the US Attorney scandal, or I would suggest asking him to handle the case.

[TiredFed]

oops. sorry Kagro, I didnt notice the byline.

[freepatriot]

lets clear a few things up here:

first off, Monica Goodling has to prove that she has an actual case of self incrimination before she can invoke her 5th Amendment rights

this dumb bitch can't just "claim" 5th Amendment protections in a vacumn. There has to be an under-lying crime, and monica goodling PERSONALLY has to be culpable for criminal charges in that case before she can claim any 5th Amendment protections.

from what I've heard, monica goodling just has a claim that the Democrats are being mean, and the fact that some people who have testified before congress have been prosecuted for perjury, so monica goodling fears to testify

this AIN'T gonna qualify as a valid invocation of 5th Amendment rights, so monica goodling can kiss my shiny white ass, raise her hand, take the oath, and answer the FUCKING questions. or she can rot in a jail cell intil she chjanges her mind

next up, Congress has the power to allow the Sargent At Arms of the House of Representatives to serve subpeonas, and to serve contempt of Congress Warrents, so the USAs ain't the only body that can enforce contempt of Congress rulings

and third, did I hear a repuglican Senator calling for impeachment ???

that didn't take too long, did it ???