Tomorrow morning is the deadline established by the House of Representatives for the White House to respond to subpoenas for testimony and documents in the US attorney’s scandal (which, remember, is the means by which we learned about and began investigating attempts to strong-arm Ashcroft on warrantless wiretapping). At 10 a.m. Eastern time, unless something changes, Sen. Leahy and Rep. Conyers have promised to start discussion in both houses of Congress as to whether the White House is in contempt of Congress.
Leahy has said that he intends to drive forward, and first determine whether there is a plausible case for asserting executive privilege. This seems unlikely given past precedent, but it’s a necessary step before attempting to push a vote on contempt of Congress.
What happens should there be a contempt vote and it passes? Marty Lederman has an excellent summary on Balkinization, the upshot being that there are three methods even before we to seriously discussing impeachment proceedings against anyone. These are: (1) The House and Senate can direct the US attorney for the District of Columbia to bring the matter before a grand jury, to enforce the subpoena and contempt citations, (2) Congress itself can prosecute the contempt citation, via the sergeant-at-arms arresting the official named in the contempt citation, and (3) Congress can file a civil action in federal court seeking declaratory relief — in other words, seeking a Federal judge to issue an order to the official(s) named in the contempt citation to comply with the subpoena.
Opinion varies concerning the likelihood and effectiveness of each measure, but it seems certain that at least two of these will be attempted by Congress should the White House not comply, as we all expect. Based on my readings on the issue, I expect the House and/or Senate to try method #1 first: directing the US attorney to initiate a grand jury proceeding. Like most observers, I also expect the attorney general’s office to direct the US attorney in question to ignore the order. There is some precedent for such an order, and given the Administration’s past behavior, I’d expect them to use every precedent available to them, regardless of how stretched the interpretations might get.
But that’s fine, because should the Administration direct the US attorney not to proceed on the basis of Congress’s request, that directive itself simply becomes part of the investigation and future legal proceedings. The Administration would simply be fueling a fire that now threatens to burn out of their control.
But should that occur, I’d expect Congress to initiate a civil suit in Federal court. The precedents, as discussed by Lederman, are complex, and this will drag on for some time. But as a commenter to Lederman’s post noted, the end of the Bush Administration’s term doesn’t end the controversy or the case. The facts, and Congress’s ability to investigate them and prosecute contempt charges, will survive the 2008 election and a change in the Oval Office. Contempt of Congress is a criminal charge, and carries a penalty of up to a year in prison.
And if all else fails, Congress has option #2: the sergeant-at-arms can arrest the officials in question, up to and including the President himself. The authority of Congress to do this is relatively unquestioned. Lederman quotes Justice Scalia, a fairly consistent defender of separation of powers and, at least in some instances, a critic of Executive overreach:
As Justice Scalia explained in Young v. U.S. ex rel. Vuitton et Fils, S.A., 481 U.S. at 820, this legislative prosecution authority is a constitutional anomaly of sorts — a "limited power of self-defense" for Congress, permissible because "any other course ‘leads to the total annihilation of the power of the House of Representatives to guard itself from contempts, and leaves it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it’" (quoting Anderson).
So tomorrow morning I expect the White House to simply ignore Leahy and Conyers, and Congress as a whole. We’ll hear a lot of bluster about this being a political charade, and partisan politics. Congress needs to ignore it, and do its duty. We’re well beyond partisan politics here, and well into territory where this is about reining in an Executive branch that no longer believes in accountability or separation of powers. ALL THREE of the possible responses need to be on the table, and Congress needs to be ready to explain to the public why and how it will prosecute this matter.
On another note, the Guardian (citing WaPo) reported this weekend that President Bush has invited academics to the White House to discuss his legacy. My personal suggestion would be to have the historians do a walkthrough of the final year of the Nixon Presidency, starting with the firing of Watergate prosecutor Archibald Cox in the "Saturday Night Massacre" (incidentally, the actual firing
was done by Robert Bork….heh) and covering the events leading up to Nixon boarding Marine One after his resignation. Since the President was busy getting early release from his National Guard service in 1974, it’s possible he missed some parallels that might now come in fairly handy.
Meanwhile, every stonewall, every exhibition of their contempt for the legislative branch, and every attempt to cover up their blatant partisanship within the Justice Department brings us closer to the day when the Administration will lose the support of even the Republican base, and be forced into a corner where they must explain themselves or face the possibility that impeachment is, indeed, a real option.
If the White House chooses to escalate the constitutional confrontration tomorrow, it might be time to change the oil and fill up the gas tank on Marine One, in case Mr. Bush needs a ride back to Crawford.