He Is NOT The Law

By Cernig

The law of the US is not enshrined in the executive branch. Even this foreigner can work out that much. So why are Democratic leaders prevaricating?

The Democrats are presently struggling to decide whether to pursue contempt proceedings against present and former White House officials for refusing to provide records and testimony related to last year's firings of nine U.S. attorneys. Several Democratic aides said yesterday that they had no immediate strategy for responding to the administration's new legal position on enforcing any contempt charges, and that Congress is severely limited in its legal options.

"Those who have been working on it for a while up here have long understood the difficulty of bringing this to a legal conclusion," said one senior Democratic aide, who added that many are hopeful the administration will eventually bow to political pressure and cooperate.

Lawmakers have two basic options for forcing a person to testify or turn over documents: They can pursue a statutory contempt citation -- which requires a U.S. attorney to submit a case to a grand jury -- or they can hold their own trial in a process known as "inherent contempt." The latter has not been used for more than 70 years, however, and is not under serious consideration by Democrats.

This week, Bush administration officials disclosed that they will never allow a U.S. attorney to pursue contempt charges on behalf of Congress, noting that the Justice Department cannot be required to act against a decision by the president.

"In circumstances like this, the constitutional prerogatives of the president make it futile and purely political for Congress to refer to a U.S. attorney a contempt citation," White House spokesman Tony Snow said yesterday. "The legislative branch is not in a position to compel action on the part of the executive branch, other than in areas related to its legitimate oversight role."

But there's plenty of precedent to say Congress can indeed excersize enforcement over any matter which it has the power to legislate on.

under historic and undisturbed law, Congress can enforce its own orders against recalcitrant witnesses without involving the executive branch and without leaving open the possibility of presidential pardon.

And a Supreme Court majority would find it hard to object in the face of two entrenched legal principles.

First is the inherent power of Congress to require testimony on matters within its legislative oversight jurisdiction.

So long as Congress is investigating issues over which it has the power to legislate, it can compel witnesses to appear and respond to questions. That power has been affirmed over and over in prosecutions for contempt.

The linked article, by professor at Rutgers School of Law and director of the Rutgers Constitutional Litigation Clinic Frank Askin, should be required reading for Democratic leaders and their staffers today. There's precedent a-plenty to say using the DoJ is only optional and that Congress has an inherent power to compel and to prosecute for civil contempt.

Instead of referring a contempt citation to the U.S. attorney, a house of Congress can order the sergeant-at-arms to take recalcitrant witnesses into custody and have them held until they agree to cooperate -- i.e., an order of civil contempt. Technically, the witness could be imprisoned somewhere in the bowels of the Capitol, but historically the sergeant-at-arms has turned defendants over to the custody of the warden of the D.C. jail.

...So, far from being defenseless against the president's refusal to prosecute or the threat of presidential pardon, Congress could take into its own custody defiant administration officials who refuse to cooperate with legitimate inquiries into executive malfeasance. Those targets would have the right to seek writs of habeas corpus from the federal courts, but as long as Congress could show a legitimate need for the information it was seeking pursuant to its legislative oversight functions, it would be standing on solid legal ground.

Bush has shown that he is willing to play hardball and take it to the wire to prevent congressional oversight of his administration. If they are to preserve any credibility as a party and preserve the dignity and credibility of the role of congressional oversight, the Dems must show likewise. They have options and they should use them to the full. There is another option too - one that more and more are realising may be necessary. Impeachment. I'm indebted to Eric Martin, who until now has been opposed to impeachment, for quoting John Nichols of The Nation making a great deal of sense yesterday:

Impeachment is the cure for a constitutional crisis. Don't mistake the medicine for the disease. When you have a constitutional crisis, the founders are very clear. They said there is a way to deal with this. We don't have to have a war. We don't have to raise an army and go to Washington. We have procedures in place where we can sanction a president appropriately, do what needs to be done up to the point of removing him from office and continue the republic. So we're not talking here about taking an ax to government. Quite the opposite. We are talking about applying some necessary strong medicine.

Eric added his own thoughts:

The Bush administration is not letting up, slowing down or paring back its overreaching ways. They are only becoming more aggressive and more monarchical. The legacy that will be left, if uncorrected, will serve to greatly undermine the Constitution for generations - if not permanently. Each successive administration will have the precedent of the Bush administration to use as justification and, more importantly, starting point for further infringement. There is only one way to restore balance.

Impeach Bush and Cheney now. Gonzales too. I say that in all seriousness, and after a careful deliberative process that has evolved, perhaps too slowly, over the past few years.

It's time.