Congress' options: "Inherent contempt" vs. reviving Office of the Independent Counsel

Harriet Miers has refused to comply with a subpoena from the House Judiciary Committee in connection with the investigation of the firings of U.S. Attorneys (and, more broadly, of the Administration’s apparent plot to draft the Justice Department into its service as a partisan-political instrument to influence the outcome of elections by suppressing Dem voters and selectively prosecuting Dem officials).

Miers’ refusal would appear to be an act of contempt of Congress, but the Administration is claiming Miers need not testify because the committee is seeking discovery of matters covered by executive privilege. While there is case law holding EP exists, its boundaries have never been precisely dilineated. Obviously, this is a question for the courts.

Only, the Adminstration won’t let it get to the courts. This week, an Admin insider stated the WH will never allow the DoJ to bring a contempt-of-Congress prosecution against any WH official or former official who refuses to testify.

More on that “case that was never resolved by the courts” – from DailyKos:

Well. Oh, my. Oh, dear. Heiligefliegenderkinderscheisse. :eek:

What options does that leave Congress?

  1. The House can bypass the DoJ by invoking its “inherent contempt” power, have the House Sergeant-at-Arms arrest and jail Miers, and try her on the House floor. However, this power has not been used since 1934:

Furthmore, because this procedure does not involve the courts, it could not produce a binding, definitive ruling on the applicability of executive privilege in this investigation.

  1. Congress can revive the U.S. Office of the Independent Counsel. That institution was created in 1978, in the aftermath of Nixon’s abuses of executive power, and expired in 1999, after Kenneth Starr did things with it that left a bad taste in a lot of Americans’ mouths. Still, it was a good idea to have such a thing: An office with investigative and prosecutorial power, politically independent of the Administration, and therefore having the freedom to investigate/prosecute anybody up to and including the president himself. After the authorizing legislation expired, the OIC’s functions passed to the U.S. Department of Justice Office of Special Counsel. It was through the latter that Pat Fitzgerald was appointed to investigate the Plame Affair – and I’m sure the WH now regrets its decision to allow that; and it is the WH’s decision to make, ultimately, because the OSC is part of the DoJ, therefore under the AG who is under the president. But if Congress were to revive the OIC, or create something equivalent, that agency could cite Harriet Miers for contempt of Congress, whether Bush says yea or nay, and take the matter into court. Where it might ultimately be decided by John Roberts. Well. Oh, my. Oh, dear . . .
  1. Congress can flail about and sputter impotently and make speeches that will make no practical difference to anything until November 2008, when elections might or might not be run fairly, depending on how successful the whole Admin vote-suppression-via-DoJ scheme turns out to be. (At least it didn’t prevent the Dems from winning back Congress in 2006.)
  1. Congress can blow it all off and get drunk.

What do you think Congress should do?

Congress should exhaust its remedies under existing law before striking out into new (or very very old) territory. Congress should vote a contempt citation against Miers and refer the matter to the US Attorney for presentation to a grand jury. Only if the US Attorney does not act should Congress consider additional remedies.

I like the idea of reviving the IC.

Which is exactly how the WH wants them to respond. It’s called “running out the clock.”



I think his point is that it stinks. I quite agree, it is gaming the system in order to obscure activities that ought to see the light of day.

And it might be wiser for Congress to force the issue through more rapid means.

Of course, reviving the OIC would involve passing a bill through both houses, and then sustaining it over Bush’s inevitable veto, which would, likewise, be time-consuming; but possibly less so than the other route. Could the veto be overriden? Maybe. I’m hoping. Even the Pubs in Congress must be thoroughly disgusted at all this by now; they don’t only have their loyalty to the party, they also have their loyalty to the legislative branch as against the executive. (Rep. William Jefferson got bipartisan support despite his obvious corruption.)

I tell ya Valiant, the whole thing stinks like yesterday’s diapers.

  • Baby Herman, “Who Framed Roger Rabbit”

Sure, it is.

The problem, though, is that you can’t piously support the system when it reaches a result you like, and condemn it when it does not. When the system is gamed for an end you approve of, I don’t really imagine you voicing this kind of outrage.

Yes, it stinks, and yes, if you’re going to claim privilege, as I’ve said before here, you need to show up and claim it, not stay away and make vague hushing gestures. I agree. But it’s unrealistic to expect this White House to NOT game the system to its advantage, because the White House in 1997 did it, the white House in 1987 did it, the White House in 1977 did it, and if there had been a White House in 1777 IT would have done it, too.

All true, and all irrelevant. We are dealing with a here-and-now practical problem here.

Except, of course, for the part about how we’re all a bunch of hypocrites, can’t say that enough. Or, at least, hasn’t.

OK. Good luck with that, then.

That doesn’t bother me. Ultimately, this comes down to an Article I v. Article II fight, and those are generally settled directly between the two branches involved.

Unlike Bricker, I don’t see the point in going through the statutory contempt-of-court motions. First of all, it’s only fair for Congress to take President Bush at his word about this. Second, there’s no legal reason why the statutory process should be exhausted first: AFAICT from my reading, it’s there for Congress’ convenience, because convening Congress as a court is a time-consuming hassle. Given that Congress has already been told the statutory process is a waste of time, going through the statutory process defeats the purpose of its creation. So there is no reason to pursue it.

I’ve got to file this one under “ponies that I’d like.” Bush would veto, and I don’t see 16 GOP and/or CT for Lieberman Senators voting for the resumption of this office.


What Bush is doing is quite simple:

  1. He’s moved the Cabinet-department policymaking into the White House.
  2. He’s claiming EP for the White House personnel, as far down as he feels necessary.

But to accept this is to accept that Congress’ oversight authority can be eviscerated by what is, in effect, a shell game.

We already have a Constitutional crisis. Impeachment is its solution.

Why should the clock run out?

If crimes were committed, they are prosecutable after Bush leaves office - indeed, prosecution would be easier then. Also, there is no reason to suppose impeachment couldn’t happen after Bush leaves office, with the penalty upon conviction being the removal of certain post-presidential benefits.

I don’t know how you’d make this stick, but it is legal.

Clock running out = Bush wielding full presidential power to the end of his term in January 2009. Unacceptable. To you as well as to me, I should hope.

Not if he exercises the pardon power. Ford set the precedent and made it stick – if Ford could pardon his predecessor, Bush can pardon his subordinates, and after that they can’t be touched.

Who cares about “post-presidential benefits”? They won’t make any practical difference to W’s life or anybody else’s. And I don’t think the impeachment power even extends to such benefits. The point of impeachment is to remove currently sitting officials from office, and thereby prevent them from exercising any further influence over public policy.

Are you kidding me?

Do you seriously believe there is any statistically significant chance Bush will NOT wield full presidential power to the end of his term?

Yes. Long odds, but statistically significant.

Hmmmm . . . Maybe not such long odds after all . . . :slight_smile:

Former federal prosecutor Elizabeth de la Vega opines it would be grounds for impeachment for Bush to invoke executive privilege, or use his control of the Justice Department, to stymie this investigation.

Why not? Why should the Democrats suddenly be required to eschew the standard established by the Republicans over the last 12 years?

I’m not exactly sure why people think Congress has the authority to investigate anything and everything it wants concerning the President and that the President is constitutionally required to comply.

What if the situation was reversed? What if the President convened a committee to investigate the Congress, and wanted private documents from individual congressman’s offices and such? Do you think they’d go along with it without any protest?

Tradition and SCOTUS decisions have definitely established that Congress has oversight authority, but to my knowledge it isn’t universal nor do they have the right to demand absolutely anything from the President.

It can be grounds for impeachment for Bush to wear white after Labor Day.

It’s utterly unrealistic to think that Congress will impeach him for wearing white after Labor Day, however.

It’s only slightly less fantastic to believe Congress will impeach him for his exercise of executive privilege.

I find it very amusing that you, and people like you, read these blogs and cling desperately to these far-fetched ideas, continually posting threads about them as though they had any realistic chance of happening. You know, or would know if you had anything approaching a rational outlook on the matter, that there will be no impeachment. That’s the end of the matter. No impeachment. Say it with me. No impeachment.

One stereotype of liberals that I, once in my life, believed unreservedly was that liberals were the doe-eyed dreamers, the unrealistic, impractical flighty theoreticians, while conservatives were the hard-headed, realistic, practical ones amongst us. I have since realized, of course, that like most every stereotype, that one was not a useful model.

But your personal fascination with impeachment, the three-legged goat in this horse race, has also made me remember that stereotypes unfortunately gain strength and life by actions like yours.