Is inherent contempt pardonable?

by Kagro X

Here's the situation: Harriet Miers has bugged out on her subpoena and will refuse, at the president's order, to even appear before the House Judiciary Committee as required tomorrow.

The response from Conyers and subcommittee chair Linda Sanchez:

A refusal to appear before the Subcommittee tomorrow could subject Ms. Miers to contempt proceedings, including but not limited to proceedings under 2 U.S.C. § 194 and under the inherent contempt authority of the House of Representatives.

Good to see inherent contempt being contemplated. To this point, it has been a mystery whether the relevant authorities at the committees have been aware of that option. We've always assumed they were at least aware, but they've played their cards close enough to the vest that nobody was ever 100% sure.

Well, now we know. And we probably owe a debt of gratitude for it to Congressman Brad Miller, for passing on to Rep. Sanchez his discoveries about and knowledge of the precedents for inherent contempt back in March, after encountering his own difficulties with "administration" stonewalling of his investigative subcommittee of the Science and Technology panel.

Our previous discussions of contempt of Congress procedures have allowed us to hash out the shortcomings of statutory contempt and the high-stakes game of inherent contempt. Chief among the statutory procedure's shortcomings: it depends for its enforcement on the non-partisan cooperation of the U.S. Attorney. And if we were guaranteed that, we wouldn't be here subpoenaing everybody, now would we?

Now, in light of the Scooter Libby pardon (and that's what it is, or at least what it will be), we have to consider another possible shortcoming: that statutory contempt of Congress is presumably pardonable by the president.

There was a time, of course, where such a pardon would have been considered so outrageous, and so utterly beyond the pale, that raising the concern would have gotten you laughed off The Hill. But no longer. After all, we just saw Bush issue exactly the type of pardon that James Madison himself once said:

[I]f the President be connected, in any suspicious manner, with any person, and there be grounds [to] believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty...

That, in turn, has led many to wonder whether inherent contempt is pardonable. The answer is: I don't know.

But here's my thinking on it.

The presidential pardon power extends to all "offences against the United States." I don't know what you'd call inherent contempt, but if there's any argument to be made that it isn't a federal crime, you might have an argument that the presidential pardon power is ineffective against it.

The Congressional Research Service says (PDF) the purpose of the imprisonment (or other sanction) under inherent contempt may be either punitive or coercive -- i.e, a non-compliant witness can be sentenced to a specific term as punishment for non-compliance, or he may be held indefinitely (or at least until the adjournment sine die of the house that sentences him) in order to coerce compliance.

That sets up a rough parallel to ordinary, judicial contempt of court sentences. There's criminal contempt, which is a specific punishment for bad behavior, and there's civil contempt, which is designed to enforce compliance with specific court orders. Criminal contempt carries a sentence for a set term, but civil contempt can be indefinite, and lasts until the contemnor agrees to comply with the judicial order in question.

If you draw a parallel between the two types of judicially ordered contempt of court and the two different reasons and sentences that can be passed under inherent contempt of Congress, it becomes pretty easy to argue that someone sentenced under inherent contempt and imprisoned in order to coerce compliance is being held on charges analogous to a civil charge -- and therefore arguably not subject to pardon.

Comments

[darclay]

Excellent!!! SARA,NOLO,Bmaz,...comments?

[Other Tom]

Goodness gracious--the portly ambassador was certainly squirming today, and rightly so. The nation was left to wonder: why is this preposterous fraud here? What is the purpose of this hearing? How low can congressional approval ratings go? What is the IQ of John Conyers?

Oh, this was a magnificent day for us on the right. Some folks we have long known to be dishonest dopes have now been exposed as...well, as dishonest dopes. Too bad hardly anyone was watching.

How did the ratings of these hearings compare to the boffo Al Gore embarrassment? I understand he lost out to "Cops" re-runs. But mind you, that's no disgrace: "Cops" is a fine, fine program.

[Kagro X]

I watched. Standard fare from the Republican side. Nothing new was learned by Democrats, or exposed by Republicans.

Zero.

Although Steve Cohen had a good question about what happens if Libby violates the terms of his supervised release, which Bush's commutation left in place.

Most likely answer: nothing. You can't be ordered by to a prison sentence you've had commuted.

[Tony R]

Another pardon from Bush could have the desired effect of forcing the entire country to sit up and take notice of what's going on. Right now most people aren't really sure what all the fuss is about. If he were to pardon another White House official for contempt of Congress, I think your "average Joe" is going to start paying attention to this President's views about the rule of law.

[jazz]

Once again I would like to point out either in addition to what is already discussed by Kargo X there is a secondary remedy which again is civil in nature and would be unpardonable. File a a complaint with the state bar of Texas against Meiers. By not showing up for the hearing and as a fiduciary of the court this could come under the heading of moral turpitude. Take her damm bar card away and then see how fast she will scream. Anyone out there in Texas reading this?

[sid58]

I thought I heard Sara Taylor say "I can't remember what I had for breakfast last week" (and could that be a lie?). Leahy's caution that she may be found in contempt must have convinced the Bush-puppeteers to keep Miers away.

[Looking_for_a_way_Out]

You've got to excuse OT. He likes lies from his government. Lots of them. Big lies. Steaming lies. Lies that make him all tingly, in that special "Bring em on" sort of way. OT believes there really were WMDs in Iraq and all evidence to the contrary is the result of a Democratic Conspiracy to infiltrate our armed forces and undermine President Bush.

Okay, in truth, OT just is upset that Wilson actually got the truth out. He would have preferred to believe that the intelligence really did support the war. It is really an ends justifies the lies sort of position. He will relentlessy pursue Joe Wilson, in spite of the fact that what Joe Wilson did was expose a lie told by powerful people to instigate a war. It has not and probably never will occur to OT that his continual attacks on Wilson do nothing more than expose OT as a willing dupe. He may not be smart he is consistent.

[Marky]

I wonder if someone could explain the "physics" of inherent contempt to me.
If Congress orders the Sergeant at Arms to arrest Miers, the White House will use the SS or some such to prevent arrest, and will claim that Congress is overstepping its Constitutional boundaries. Conceivably Bush could use Congress's "usurpation" to declare martial law.
Does that sound about right to you?

[Marky]

Needless to say, impeachment is forced as soon as Bush brushes of inherent contempt charges.

[Looking_for_a_way_Out]

Crap, I fed the troll. Sorry. I love reading this site. Lots of good info. All the contributors do good things. Keep it up.

I hope the President can't pardon Inherent Contempt. It just seems like it would be directly interfering with Congressional Oversight. But IANAL.

[Dismayed]

Other Tom Troll the blow hard -
Other Tom Troll the blow hard -
Keeps his head stuck in the sand yard -
below his big ass of lard -

Ha, ha, ha - that's it.

[Marky]

i'm not entirely joking about martial law, btw.
If there's any lesson to be learned from Bush's first 6 years, its that he doesn't seem to have any boundaries at all. Whatever it takes to hold on to power is what he will do. Democrats need to be prepared for some of the more spectacular possibilities.

[Kagro X]

Barring an arrest under inherent contempt would probably put you pretty squarely in impeachment territory. If we found ourselves under martial law as a result, well, you'd finally have your answer about whether or not "it" can happen here.

I assume, though, that the Sergeant at Arms would wait for Miers to leave the White House. Having Bush harbor her there while the cops wait outside to arrest her isn't such a bad thing, really.

[P J Evans]

Well, as someone said over at Talking Points, Bush is now in obstruction territory for telling Miers not to appear. Federal felony obstruction. Impeachable. Or would be impeachable, if the Democrats in Congress actually paid attention to what's going on instead of playing by the rules of the GOP.

Conyers should have told Reid that he wasn't up to the job. (Or that the Republicans know where his bodies are buried.)

[earlofhuntingdon]

I can imagine Bush on the way out the door in January '09 pardoning his entire staff. To keep his own backside out of jail, to show that he takes care of his own, and because he can. That would remove, however, their right to take the Fifth, and lying about forgetting, if proveable, is perjury. So even Shrub's doing that might not be the end of the story.

This has been raised before, but I think that Bush's corruption reaches so deeply, that the next administration really needs to set up a Truth and Reconciliation Commission.

The magic in any federal commission, of course, is properly delineating the scope of its work, appointing the right commissioners, and sorting out a proper staff and budget. Frankly, getting Congress to vote the budget is my only worry; there are so many top professionals hounded out of office by these guys that the only hard part about staffing it would be turning down so many qualified people.

Apart from being a clearing house for criminal allegations and select investigations, such a commission might also be used as a clearinghouse for other things, such as a way to identify and reinstate the no doubt thousands of valuable bureaucrats whom this administration has hounded out of their jobs precisely because they wanted to do their jobs.

[gbreez]

Thanks, Kagro X. Really super work. Feather Blessings.

[Marky]

Seems like impeachment is being forced, and rather quickly.
I wonder if the White House thinks Congress won't do it, or if they are confident Bush won't be impeached. Neither seems a correct assessment to me, given the direction of current events.

[jcricket's boy toy]

John Dean brought this up in an interview with Randi Rhoades this evening. There was a case in the 1930's....and yes the sergeant at arms would conceivably place frau blucher under arrest...it probably is a pipedream but Fielding is playing hardball for bigger crooks than nixon and the Dems are going to have play a lot harder.

[Looking_for_a_way_Out]

What is Martial Law and can it simply be declared by the President? I am not a constitutional scholar by any means but I don't remember it as something the President can simply declare. I know he can't Dissolve Congress like other dictators in Banana Republics.

[Marky]

Looking,
Bush thinks this is a Banana republic.
He will assert authority he doesn't have. At some point it may come down to a question of whether the armed forces will accept his orders as "commander in chief".
Remember, he tried to weaken the comme possitatus restrictions a while back.

[P J Evans]

mark @ 00:14
comme possitatus

I do believe that you mean posse comitatus.
Not quite close enough for a cigar, but close enough to figure out.

[Rick B]

Let's assume that Bush does Pardon a Congressional finding of Contempt of Congress. Can he do so prospectively? That is, If Miers refuses to obey a subpoena and is declared in contempt, then Bush pardons her for it, could not the Congress simply issue a new subpoena and again declare her in contempt on the new charge? Surely the President does not have the power to issue a prospective Pardon, in effect immunizing his minions from ever facing charges of Congressional contempt? If he did, he could simply provide a blanket pardon to every White House employee against Congressional contempt charges at the time they are hired.

The court would not involve itself, declaring it a political issue outside their jurisdiction. Any attempt by the court to intervene would certainly open the court members to impeachment proceedings.

That, of course, would be in addition to the impeachment hearings which would certainly have to be started against Bush for his action. Such a pardon would clearly be defined by Congress as a "High Crime or Misdemeanor" and the definition of what is a high crime or misdemeanor is without doubt entirely and solely within the Constitutional power of Congress.

Hmmm. Declaring Miers in contempt could actually be an impeachment trap for Bush, couldn't it? Bush is left with the choice between either letting her testify or pardoning her, in which case the pardon sets up a clear impeachable issue. The third option would be for Miers herself to fall on her sword and do a Susan McDougal, I guess, relieving Bush from acting.

I don't know. I am just a layman trying to work this through in my own mind.

Oh, and if anyone decides to use this set of events to write a best-seller along the Allen Drury or James Patterson style, I want at least a mention in the forward. OK?

[Fisher]

Complete fishing expedition. GOP should continue to tell the drooling Conyers to pound sand. You want contempt of Congress? Start with Val Pal.

[Rick B]

Earlofhuntingdon,

In addition to pardoning his staff, I would expect the White House to be shrouded in the smoke from burning the chaff that the shredders leave. Sort of like the signal for the election of a new Pope, but this would signal the end of the previous reign.

I can see the supervisors going around inside the White House now. "Yes. Shred and burn all that. NO! NOT THAT! That's some of the Pardons!"

[Albert Fall]

Miers goes in roughly a year from being a supreme court nominee to contempt of Congress?

Wow.

And clearly, she has no principles or interity whatever, which is why Bush thought she belonged on his kind of judiciary.

[Kagro X]

Ha ha! Yeah, a subpoena is handed to Miers. Miers doesn't show. But contempt is a "fishing expedition."

This is what your modern GOP has come to, folks. "Caught red-handed" = "fishing expedition."

[pseudonymous in nc]

The OLC opinion shows where this is headed. Statutory contempt either gets punted by the US Attorney for DC (who, frankly, should recuse himself) or those cited get pardoned. What's left? Inherent contempt and impeachment.

I am not a constitutional scholar by any means but I don't remember it as something the President can simply declare.

This isn't necessarily down to law or precedent any more. This is politics: a game of poker where you don't know your own starting hand. This is a case of being the first to do things, say they're done, and that the other side can't do a thing about it. The maddening aspect is that Bush is weak, and increasingly desperate in trying to cover his ass.

Anyway. Harriet will likely be in Texas tomorrow. My guess is that Gov. Goodhair would approve the Texas Rangers to set up guard around her house.

[BillE]

If Ms Meirs fails to show up and is cited as being in contempt of congress, can someone in TX immediately try to get her disbarred? Seems that would be a very bad thing for an officer of the court to do.

[TomJ]

It isn't pardonable because, at the very least, it is a continuing violation. For instance, could the president pardon a person holding another hostage? The hostage here is the requirement to testify. Pardons don't relieve anyone from complying with process. Pardons are a form of immunity, which relieve a party of jeopardy of life or money, but do not relieve them of civic duty. In fact, with the removal of jeopardy, certain rights are no longer considered valid.

Of course the real reason you can't pardon this thing is because the president has no power to direct the Sergeant At Arms to release the person in contempt.

I keep scratching my head: congress can remove anyone from office in any branch, with the will to do it. Our Leader cannot do that. Which branch is more powerful?

[aquart]

I believe Bush tried to give himself the army for a martial law declaration by inserting language in a recent bill wresting control of the National Guard from the states under...I don't know what circumstances but I assume it means whenever he feels like it.

If he tries it, I expect Democratic governors to react unfavorably. And I'm not sure Republican governors will be much more thrilled. I'm sure it's the delightful idea he rocks himself to sleep with, but he hasn't got the manpower to enforce it even if he found some official support for it, like from that zombie Roberts who's running his Supreme Court into the history books as a bad example. To declare martial law, you need the support of the army. Our army would as soon make a mistake cleaning their guns in his presence.

[Ralph]

Excellent logic. Since there has been no specific crime asserted, nor any particular sentence imposed, trying to pardon or commute would simply be a bid to free the witness.

Such a course of action would be more tenuous than the Libby commutation.

[cboldt]

Haven't researched this, but I think presidential pardon is inoperable absent a criminal conviction. Under ordinary contempt, the contemnor holds the keys to his jail cell - ordinary contempt is a tool used within a single branch, to obtain conformity with that branch's order.

I'll be surprised if Congress jails a recalcitrant witness on its own power though. More likely they'd seek a court order, so the issue of privilege is "objectively resolved," to support the act of incarceration for contempt.

[Boo Radley]

"Democrats need to be prepared for some of the more spectacular possibilities."

I agree. Fortunately, however, a lot of Democrats are not European American, or not male, or not heterosexual. European American males have a long history of influencing all three branches of federal, state, and local governments to deny others access to civil rights.

KagroX, thanks for all your excellent posts on this.

[Katie Jensen]

I have provided a link about the insurrection act and how Bush might use it in an emergency. Like a "gut feeling that there might be an attack by al queda". It makes it easier for Bush to declare marshall law. I just don't think congress is thinking about the big picture and what is at stake.

http://www.informationliberation.com/index.php?id=17432

[Josiah Bartlett]

This is funny. I saw it 7 years ago. When bush* leaves office, unless his leaving is accelerated under impeachment proceedings, the presidential stationery closet will be emptied and all the presidential pens will be running out of ink from all the pardons he will be issuing.

I was saying it back on Salon Table Talk before it went pay to play, I was saying it on F. Foonts old board and I've been saying it on DKos and now here.

Also, I believe that his daddy set the precedent for pre-emptive pardons when he pardoned all the Iran-Contra participants so the scandal wouldn't get to him.

[Xenos]

Now you are really getting into personal fantasies of mine. The impeachment of Dread Pirate Roberts (for a frivolous, self-serving decision, or for failing to recuse himself on a case testing Fielding/Roberts theories of Executive Privilege)would be worth a lot more than impeaching Bush/Cheney.

[Boo Radley]

"It makes it easier for Bush to declare marshall law"

Off topic here, but I don't see this as much of a threat. Armed Forces are stretched way too thin. The National Guard is state controlled and police forces are locally controlled.

[Ed Kunin]

Congress has enough on Bush to impeach him several times. i.e. Violation of the Presidential Records Act, abuse of Presidential privilege (forget lying us into Iraq. That's too difficult to prove) but Dems, for reasons I cannot fathom, refuse to impeach. Apparently they think they will lose in the Senate. Perhaps, but even Republicans seem to be awakening to the threat Bush presents. Nancy P says they are building a record. I have no idea how much record she needs, but we are liable to be ruined while she waits. The real question is--Is there anything we can do to get Congress to act?

[William Ockham]

Ok, I live in Texas. Somebody want to tell me how to file a complaint against Miers?

[Ed Kunin]

Ok, I live in Texas. Somebody want to tell me how to file a complaint against Miers?

Interesting idea, but lots of obstacles to a lawsuit or anything else-executive privilege, lawyer-client privilege, standing to sue, to name a few. Maybe someone can be creative.

[Martin]

Re: comme possitatus. Just think of it as Cheney's newest legal rationale ~ Treated as Secret/SCI.

[Other Tom]

Do I believe there are WMD in Iraq? No. Did I believe it in March, 2003? Yes. But I wasn't alone. For example:

“There is now no incentive for Hussein to comply with the inspectors or to refrain from using weapons of mass destruction to defend himself if the United States comes after him.

“And he will use them; we should be under no illusion about that.”
—Joseph C. Wilson IV, February 6, 2003

Is it necessary for me to quote the likes of Bill Clinton, John Edwards, John Kerry, Jay Rockefeller and the rest about WMD in Iraq? Please let me know; I'll be more than happy to do so. In fact, I can't recall a single person expressing any doubt that he had them except Scott Ritter, who at the time had accepted $400K from Saddam.

As for Joe Wilson telling us the "truth," I'll settle for the conclusions of the bipartisan Senate Select Committee on Intelligence concerning his veracity.

[William Ockham]

Don't feed the trolls, especially when they make off-topic, disingenuous claims.

[Other Tom]

Harriet Meiers has every right, and indeed a duty, to invoke executive privilege in declining to testify. The issue is not a difficult one, and it takes a genuine fabulist to believe she would be sanctioned by the Texas bar, or any other bar, for doing so. The bar would be interested only if she were to decline to testify after a court had ruled that she must do so--and it is extremely unlikely that that will happen.

Time to join the reality-based community...

[J. Thomason]

Regarding "spectacular possibilities":

During the 2000 election Bush gave an answer in a debate regarding relations with China where he described the evolution of the power in China that the US would be dealing with as follows: "warlord, entrepeneur, trading partner." Now, this strikes me as window into the politics of Bush with regard to his sense of the dimension from which power stems and clarifies why war was so necessary for Bush's ambitions in governing. The irony of this is of course that as this as played out it is clear how cynically Bush deployed the meme of being a "compassionate conservative". It was the first piece of dishonest propoganda in the establishment of the Bush presidency. It is clear now that Bush thrives on the irrational, arbitrary and arrogant abuse of violence. It is apparently in his view the foundation of governance and leadership.

His calculation is that a war time president is unimpeachable because of his political indespensibliy to the "casus belli." But as we all know military commanders have been discharged in the midst of conflict, if for no other reason than inadequate performance. This was the case with Gen. McClellan, was it not? Congress should not be shy in discharging this duty, though I fear they are as the only tenable result of pursuing an impeachment course is a President Pelosi. This is not to say that she may emerge as a capable leader nor that there would be no inherent value in impeachment proceedings in and of themselves.

In pressing for this venal accumulation of power, mocking the people, flashing false smiles and conspiring to thwart and obstruct the normal objectives of the law, including prescribing the scope of the activity of the executive branch, Bush has broken with good faith in pursuing constitutional principles. He may well have poisoned the judicial branch with jurists prone to unitary theories giving cover to the establishment of justice beyond it foundations in enlightened principles in the selfish desires of a privileged few.

At this point, the breach of good faith and the distortion of founding principles not to mention the now explicit examples of both statutory violations by the President and his penchant for the obstruction of justice have clearly demonstrated his malicious intentions. Still we see what kind of cover the war continues to give the President in the Iran resolution passed by the Senate yesterday. Comity is a reciprocal gesture and certainly some Democratic politicians pine after the power Bush appears to be establishing.

But for the people and for a congress that truly represents the people this matter has moved into a dimension of "zero sum gain." The argument that failing to support the war is tatamount to failing to support the troops is as specious as the "compassionate conservative" meme. A tedious check on the power can be significant but let there be no doubt concerning what is at stake without the pursuit of judgments by Congress against those who would flaunt the rule of law.

[Other Tom]

"Haven't researched this, but I think presidential pardon is inoperable absent a criminal conviction."

Consider Ford's pardon of Nixon. Bush I's pardon of Weinberger et al. Jimmy Carter's pardon of all the draft dodgers. In Ford's and Carter's cases, there had not even been any criminal charges filed, let alone convictions.

As for impeaching John Roberts, I'm old enough to recall the John Birch Society calling for the impeachment of Earl Warren. They were rightly considered deranged kooks.

[William Ockham]

Other Tom,

Because you chose to make an on-topic comment, I'll reply. First, there is a big difference between invoking a privilege and failing to show up under a duly issued Congressional subpoena. You apparently think that complying with Congressional subpoenas is somehow optionally. The law has a different opinion.

One other thing, you really ought to look up the definitions of words you use. A fabulist, by definition, doesn't believe the tales they tell. I don't care whether you think I'm a liar or naive, but implying both in the same sentence makes you look even sillier.

[Boo Radley]

"Harriet Meiers has every right, and indeed a duty, to invoke executive privilege in declining to testify."

Thanks so much, I thought only the President could invoke the privilege. It's very reassuring to know that Fred Fielding and Harriet Meiers can invoke Executive privilege.

[cboldt]

-- Consider Ford's pardon of Nixon. --

In the context of the post, that being contempt citations, and in particular the difference between "ordinary" and criminal contempt, I figure readers get the point of my full comment.

But in recognition of your contribution, and to make my point more precisely, I will restate the introductory proposition. "I think that in the realm of contempt proceedings, and in particular considering the difference between ordinary and criminal contempt citations, presidential pardon is inoperable absent at least a credible risk of criminal citation."

[Sara]

Well, if the House wants to proceed with anything, I think they should take up the impeachment of Gonzales on the straightforward charge of lying to Congress about FBI problems using the Patriot Act powers. Keep it simple and stupid -- it would pass the house, and I suspect given a few more weeks, the Senate might just convict Gonzales.

This would be a breach in Bush's Stonewall, because he would have to send a new AG nominee to the hill, and Leahy could be trusted, I think, to attach all kinds of conditions in writing on to any appointment he would let through. There is good precedent for this -- it is what happened after the Saturday Night Massacre. Moreover, Gonzales has no independent power base -- he is only significant because of his relationship to Bush. Much easier to take him out in this way very cleanly than any of the other complex proposals. Once that is accomplished, and a new AG in place who would have been required to promise as a condition of Senate confirmation a special prosecutor for the likes of Harriet and Sara and all the rest -- then the house cleaning at DOJ could begin.

On another mailing list I am on, our resident number cruncher has looked carefully at recent polling and thinks that Bush has, in the last month, perhaps dropped between 5 and 8 points -- meaning he is really eating into his base. Failing some dramatic event, this puts Bush in the low 20's in August, and at that juncture, I think Republicans on the Hill are going to be begging the Democrats to "do something." But it is only when Republican critters sign up with their own blood that Democrats should take the lead. After all Democrats did not sponsor George W. -- did not allow him to do with the country, the military, and the courts what he wanted over the past 6 years. So why lead a failed effort against him? It is not there yet, but it could be soon.

By the way, one advantage of impeaching Gonzales is that Judiciary can create a special sub-committee to do the hearings, which means Conyers might not head the main effort -- but could continue the ordinary work of the committee while the Gonzeles hearings went forward. Someone like Nadler would make a great sub-committee chair.

[Mimikatz]

Ford pardoned Nixon for everything and he was just an unindicted co-conspirator.

The Bush I pardons of Weinberger and Iran-Contra figures were without conviction or even indictment, I believe.

One thing the Prez can't pardon is future conduct. The next Congress can subpoena the lot of them and there is nothing he can do, and any perjury they commit is a new offense. If thgey tell the truth, it tarnishes the GOP brand, as if they care.

As for inherent contempt, my instinct is not--he pardons crimes that are charged by the exec branch. He can't "pardon" someone from liability in a civil suit, nor could he pardon a conmtempt of Congress. Separation of powers, folks. At least that's the way I would argue it.

[Mimikatz]

And I agree with everything Sara said.

[Ed Kunin]

Filing a grievance against Miers if she ignores a congressional subpoena might work. The Bush family is not without influence in Texas so it might be for naught, but Texas lawyers may consider the nation's welfare more important. By changing the venue and the question as to whether Miers acted in accordance with her lawyer's oath, we eliminate the issue of executive privilege and explore whether Mier's action was "reasonable" under the circumstances.

Some people consider executive privilege, although it is not mentioned in the Constitution, as unlimited and anything the president says it is. That strikes me as unAmerican especially in the case of the fired US Attorneys where it is impossible to imagine any situation where the national interest requires secrecy.

I read somewhere Miers would not lie under oath. So much the better, but that has nothing to do with her justifying her behavior as a condition of her continuing to practice law.

[P J Evans]

Ed @ 13:35

I'm wondering exactly how much influence the Bush family actually has in Texas these days.
I don't think a lot of people there are that fond of Shrub, and it's been long enough that his father is (or should be) becoming irrelevant to the current political scene.

[bmaz]

William Ockham - Here is URL for the Texas State Bar disciplinary process. It is shockingly easy, as it is in most states unfortunately. The disciplinary process in most states is a function of the State Supreme Court. If I recall correctly, the Chief Justice, or at least a Justice from the Texas Supreme Court was the guy speaking up for, and on behalf of, Harriet Miers during her short lived absurd Supreme Court nomination. So, Miers will have support in Texas; irrespective of that, however, it would be a legitimate complaint in light of Mier's conduct.
http://www.texasbar.com/Template.cfm?Section=Client_Attorney_Assistance&CONTENTID=3367&TEMPLATE=/ContentManagement/ContentDisplay.cfm

Sara and Mimikatz - I agree completely; but then you knew that.

[Other Tom]

Sorry Cboldt, I misunderstood the conext in which you referred to the need for a prior conviction.

As to Miers "invoking" the privilege, it can indeed only be invoked by the Chief Executive. But once invoked by him, it is the duty of members of the executive branch to honor its assertion.

As to the definition of "fabulist," I'll go with "creator or writer of fables," and I'll stick with the statment I made. To suggest that Ms. Miers will be sanctioned by the Texas bar is to write a fable--and I'll accept Mr. Ockham's representation that he believes his fable to be true.

[Other Tom]

Speaking of fabulists, did you hear the one about Bush preparing to declare martial law? (I'll just say that on the very day that G. W. Bush declares martial law, I will donate my entire estate to PETA.)

Look, I certainly don't want to be cruel or anything, but are some of you folks thinking that various administration officials may be removed from office by the process of impeachment? Do you really think that? Please don't let your future happiness or contentment depend on it happening.

The House of Representatives may very well impeach someone or other--God knows, on the strength of their performance over the past six months, they obviously have nothing better to do. But no one--let me repeat that, no one--is going to be convicted by a two-thirds vote in the Senate. Please don't be disappointed. Just accept this truth I have set out for you, and try to get on with your lives.

[nolo]

as ever, excellent analysis by
kagro x -- i do think it worthwhile
to pursue inherent contempt charges
against harriet miers -- first, because
she, as a lawyer, knows that subpoenas
are not optional -- and second, because she
had agreed to appear, only a day earlier.

that is defiance. and that is contempt-able.

she would also make a good poster-child
for the arrogance of this administration. . .

and to that end. . . i have put this together:

in about one minute of sara-taylor-testimony,
[and senator patrick-leahy-incredulity], we see
what is at the heart of all the other matters
afflicting the bush law enforcement policies,
the bush-controlled-justice-department, and
even his policy in iraq. . . it is this view
that puts "loyalty to the king" before loyalty
to the constitution, to the rule of law, to the people,
and to our 231-year-long, most-successful, experiment
with liberty -- and power -- residing first in
the hands of the people, and thus, not the king.

kudos to sen. leahy for a truly-flawless,
and understated, line of questioning -- sara
taylor said far more, here, than she knew. . .

g'night!

[Ed Kunin]

other tom @ 21:53

Most of what all of us think and post are predictions of things to come. You may believe the surge will work. I doubt it will. We can discuss our reasons for our beliefs, but we can only sound certain, not be certain. You believe impeachment can't work. You may be right. Perhaps by the time impeachment comes up in the Senate, enough Republicans will be forced by circumstance to put the general welfare ahead of party loyalty. Neither of us knows for sure.

I have no idea how large an estate you have or what you have against eliminating cruelty to animals, but your confidence martial law will not be declared by this most lawless of presidents is also a prediction. I hope you are correct with it. Human history on the subject is mixed. Remember-the most popular of all last words are "You can't do this to me."

[James]

Would anyone care to comment on that third option not yet mentioned (I believe), namely Civil Contempt?

As I understand it, it's essentially a ganging-up of the Legislative and Judiciary against the Executive where, in the circumstance of the Legislative's position prevailing, 'two trumps one.'

Upon "Wikipedia" we may read as follows:

CIVIL PROCEDURES: Senate Rules authorize the Senate to direct the Senate Legal Counsel to file a civil action against any private individual found in contempt. Upon motion by the Senate, the federal district court issues another order for a person to comply with Senate process. If the subject then refuses to comply with the Court's order, the person may be cited for contempt of court and may incur sanctions imposed by the Court. The process has been used at least six times; but the civil procedure can only be used against Executive branch officials "in certain limited circumstances."

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

Sounds custom-made for our present dilemma, and possibly, even, morphing into ". . . contempt of court and may incur sanctions . . ."?! A fair question to ask then becomes, just WHAT comprises those ". . . certain limited circumstances."?

It's my understanding that there was positive reasoning behind the Legislative powers having been set out as "Article I", with the Executive ones following as "Article II", this being that, in the end as in the beginning, it is the Legislatve that holds ultimate power and authority over administrations gone-rotten, but such happy circumstance occurring only if and when there is a concerted, insitutional will to exercise them.

The Founders WARNED against the advent of party loyalties prevailing over those to the public good, and we are now living the beginnig terrors of that advice having gone unheeded, and yes, ignored 'with contempt'!

['Jeopardy impeachment, conviction and removal' all done in a single day, anyone??? For the survival of our Nation this may become necessary to do, for it would seem that devilish mischief is now FULLY at-play!]