I really, really recommend that you read the Constitution sometime. It’s not very long, and given that you’re sufficiently interested in politics to routinely get into political debates here, you should find it pretty interesting.
You know, instead of a snide dismissal, you might want to address the legitimate separation-of-powers questions raised by that question, especially since an FBI raid on a congressional office is right now being challenged in a federal appeals court on those very same grounds.
That wasn’t a snide dismissal at all. That the question was being asked in such a manner indicated a sufficient lack of awareness of the Constitution that I really, honestly thought the right thing for me to do was to recommend to Martin that he read it.
But if you think I “might want to address the legitimate separation-of-powers questions raised by that question,” then go for it. Simply write the post you think I ought to have written. The floor is yours.
I think you ought to read it yourself. Concentrate hard on Article I, Section 6.
Can’t read it until you write it.
I’m sorry. You weren’t linking to the Constitution in your posts earlier, so I naturally assumed that your copy was handy, or that you could easily look things up.
So there you go. Congress is protected from the other two branches to some degree. And executive privilege applies - the case law there was cited in other threads, and I trust you don’t really require me or others here to rehash much of that.
So what part of Martin Hyde’s post did you have an issue with so much that you thought he needed a constitutional refresher course?
What I find shocking is that RTFirefly specifically told me to “look at the constitution.” Nowhere in the entire document is legislative oversight mentioned, it is not there. The concept of legislative oversight over the executive is one of the many powers that Congress executes which has been developed over centuries via tradition and supporting SCOTUS decisions, you won’t find anything about it in the Constitution because it isn’t there.
Note, however, that I’m not making the claim that legislative oversight is unconstitutional, just that it was not written into the constitution.
The founders apparently considered legislative oversight to be a natural power of legislatures, but because they failed to enumerate those powers or spell them out, we can’t explicitly state what limits, if any, said powers have. I’ve not made the claim that Congress doesn’t have authority to conduct inquiries and investigations. One of the men who helped craft the constitution, James Madison, participated in such a congressional inquiry all the way back in 1792.
Furthermore, there is nothing in the constitution about whether or not the executive can investigate the legislative branch. However executive agencies have investigated the legislative branch in the past (see: The FBI & Abscam), and the Congress has always been petulant about such investigations and frequent to claim all sorts of congressional privileges.
In 1920 the Senate was investigating the Justice Department, as part of that investigation they subpoenaed Mally Daugherty, brother of Attorney General Harry Daugherty. Mally Daugherty was an official of some sort with a bank in Ohio, they wanted him to bring with him bank records, including records of transactions of over $25,000 in value. He refused to appear before the Senate not once but twice; after the second time the Senate ordered the Sergeant-at-Arms to bring him into custody for purposes of taking him before the Senate to testify, the Sergeant did this through a deputy. Daugherty petitioned for a writ of habeas corpus immediately in Ohio and it was granted, and this decision was appealed to the SCOTUS. In ruling on the matter the SCOTUS asked this question:
So at least until 1927, this was a constitutionally murky area. The Congress had been exercising this power since the 18th century, but it had never been firmly grounded in the constitution because it is not an enumerated power, there was no law concerning this power (explicitly–though several congressional acts concerning the swearing in of witnesses before congress and etc), and there were no prior SCOTUS cases which had decisively settled the issue (as the court states in McGrain v. Daugherty, though there were certainly prior cases dealing with issues arising because of said power.) However, the Senate and House had both debated the matter in the past and decided the power existed “incidentally” to their being legislatures, and that prior legislatures such as those in colonial America and the Parliament in the United Kingdom had exercised such powers.
In the case of McGrain v. Daugherty, the court found that those powers indeed existed incidentally to the House/Senate being legislative bodies. As a basis for this the SCOTUS pointed to a multitude of State laws, State court decisions, and even cited a decision in Quebec which found such powers to be incidental to legislative power. However, my original statement in regard to investigatory powers was that I didn’t know why people were under the assumption that the congress has unlimited power to investigate the executive.
Telling me to “look at the Constitution” doesn’t do much good, or make much sense. Because these powers are not mentioned anywhere within the Constitution, and the Supreme Court of the United States agrees that they were never expressly stated. So to refer to the constitution directly makes no sense whatsoever, the relevant documents would be various congressional rules and court decisions that have come down over the past 200 years, not the constitution itself which is wholly silent on this matter.
In McGrain v. Daugherty the court agreed with me that said investigative power was not unlimited in scope. The court certainly did state in that decision that the Senate has authority to investigate the Department of Justice:
However, the person who has refused to testify in the here and now is Harriet Miers, former White House Counsel. She isn’t a member of the Department of Justice nor was she a member of said Department when the U.S. Attorneys in question were fired. Nor was she the brother of a corrupt attorney general as was Mally Daugherty. As White House Counsel she was a member of President Bush’s staff, and served him as legal adviser in his official capacity as President. I’m not aware of any explicit decisions which say that the White House Counsel can be compelled to testify concerning legal advice she/he gave the President in his official capacity as President. When dealing with personal legal matters, the White House Counsel is not the personal attorney of GWB, so there is no attorney-client privilege at play if she discussed any personal legal issues with George W. Bush the man, not George Bush the President. But I imagine any legal advice President Bush solicited from Miers concerning the firing of U.S. Attorneys would be considered legal advice given to the President of the United States, not legal advice given George W. Bush the individual. Presidential advisers need to be free to render candid and effective advice, and for that reason internal political advice and such discussions between the President and his immediate staff should and I think are protected by claims of executive privilege (although as the OP has stated, EP is ill-defined–and because typically in the past Presidents have worked out compromises, it has remained relatively untested.)
Oh, you meant the Constitution.
To review the bidding: you wanted me to write a post for Martin; I said, if you think it needs to be written, why don’t you write it? You said I ought to read it myself; I said I couldn’t read it until you wrote it. Duuuuuuuuuuh.
Anyhow, I’ve read Article I, Section 6 on a number of occasions since last summer, just to keep my recollection fresh. It has minimal relevance here.
For one thing, the Executive Branch has no oversight authority over Congress; that authority only rolls in one direction. And as the text of Article I, Section 6 reminds us, the Executive can’t choose to investigate Congress just for the hell of it.
A reading of the Constitution might remind Martin further of the basic relationship among the branches, particularly between the legislative and executive branches. Congress passes laws; the Executive executes them. Congress appropriates money; the Executive spends it. The reason Congress has oversight authority over the Executive, and not vice versa, is that the Executive exists to do those things Congress authorizes, and not vice versa. Congress’ oversight authority is an inherent function of Congress’ need to check up on whether and how well the Executive is doing the tasks assigned to it by Congress. In the absence of oversight authority, Congress’ lawmaking and appropriating authority can be rendered meaningless. No oversight = no check on the Executive doing what it wants, no matter what laws Congress has passed.
Reading the Constitution is a good thing. Martin’s comment certainly suggested that he hadn’t absorbed one of the most fundamental things about the relationship between the Executive and Legislative branches. If he was missing this, this was probably not the only important thing an actual read of the Constitution might illuminate for him. And while most of the time, just reading a relevant section or two suffices quite well, every now and then it’s not a bad idea to just read the initial Constitution straight through, to get the overall idea of the thing.
I agree, reading the Constitution is a good thing. I highly suggest you do more of it in the future as you have shown a fundamental ignorance of it in your posts here. Congressional oversight authority is an implied power and thus reading the Constitution will not tell you one thing about it, or even mention that it exists. Pretty much every one (including the SCOTUS) recognizes you aren’t going to look to the Constitution to explain the existence of said power, but instead to legislative traditions.
Furthermore, the power to investigate is clearly not universal, I never claimed it did not exist, I claimed it was not unlimited in scope. The power of the executive to investigate the Congress is also not “non-existent” as executive agencies have investigated Congress several times.
True, but see what I wrote in my previous post. Reading the Constitution explains the underlying relationships between the branches, and oversight, for the reasons I’ve explained, flows naturally from that relationship.
I’ll let you fight that one out with Mr. Moto.
But as the text he highlights points out, the areas of the Executive’s investigation of Congress are quite limited, and the Executive clearly is out of line in investigating Congress qua Congress, but only to ensure that individual Congresspersons must obey the law like anyone else.
Dunno what this has to do with the Executive investigating Congress.
Sure, the limits of the legislative oversight authority over the Executive aren’t clearly defined. But that wasn’t what impelled me to point you to the Constitution, but rather your suggestion about the Executive trying to exercise oversight over Congress. That’s why I just quoted that part of your post.
I hate to tell you that most of your quite lengthy post was of no relevance to the post you thought you were responding to, but it was of no relevance to the post you thought you were responding to.
OK, maybe I didn’t entirely hate to tell you that. 
Oh my, did I say anything that contradicted this? Heavens! You’ll have to show me what.
Could you give a for-instance?
I’m open to being proven wrong here, but I don’t believe the Executive has ever investigated Congress, but rather the criminal or treasonous behavior of individual Congresscritters.
A poster with as many posts as you have might recognize that beyond the petty squabbles you tend to engage in, there are actual threads with overarching topics at hand. It should be quite clear to anyone with basic reading comprehension skills who has read the thread up to this point that several parts of my post were clearly referencing the issues at hand, re: Harriet Miers refusing to testify.
It is not always my habit to respond individually to every single point but sometimes to address things in a collective manner. If you can’t discern the relevance of my post to this thread, I think you’ve failed to recognize what the thread was about, or at least what BG wanted it to be about when he posted the OP.
Furthermore, as to your point about “reading the Constitution” it is again, an unsound point. For nowhere in the Constitution does it enumerate the power of the legislature to conduct oversight nor does it specifically say the President can or cannot investigate the legislative. Both powers exist, the executive can investigate aspects of the legislative branch. What the President cannot do is investigate the legislative branch without restriction, which was my point in even bringing up that issue. There are clear limits and separation of powers issues at play, Congress’ oversight authority exists, but is not unlimited. The idea that your point should be “obvious” to everyone simply from reading the Constitution is erroneous because it was not obvious to everyone in the United States or even in the Senate/Congress. There were debates within the Senate about these very topics all the way back in 1859, and there have been probably around a dozen SCOTUS cases that popped up clarifying the breadth, scope, and limits to congressional investigatory power, and the SCOTUS never even clearly stated the legitimacy of said power until 1927.
My point was not intended to convey the idea that the executive has vast investigatory or oversight powers, but was instead to convey the ludicrousness of the idea that Congress has unlimited powers by posing the question as to how one would react if the President tried to clearly overstep his boundaries and violate separation of powers.
The key issue with my first post was restated in my subsequent posts, that being the scope and limitations of Congress’ authority to conduct inquiries and investigations and how the Congress may compel members of a President’s personal staff to testify.
Abscam was a general investigation of Congress, it was not a targeted investigation based on existing information about corruption. In the investigation of “Dollar Bill” Jefferson there was an ongoing investigation into Mr. Jefferson personally and into his corrupt acts.
With Abscam, the FBI set up a generalized sting operation targeting Congress as well as other public officials. They set up a dummy-corporation and paid a con man to run the operation. A fictitious Arab Sheikh was created who wanted certain political favors (such as asylum) or wanted to involve Congressmen in corrupt investments. The sting was wide in its scope, targeting over thirty members of Congress to see if they would accept bribes.
True dat.
I do the same, but I usually provide some indicators within the post to clue people in on who or what I’m responding to in which part of the post.
Nothing says you have to do that, but if the resulting confusion of responders upsets you, I’m not particularly bothered by that.
Under a word-by-word, clause-by-clause reading, true. You will find no specific clause that says the Executive Branch cannot investigate the Legislative Branch.
But if you read the Constitution, it’s clear that it has no business doing so. You could attach a mackerel to your stereo, but it wouldn’t be part of the stereo in a functional sense. Same here.
Sorry, but the only thing it conveyed to me was that you might not know that anything on the part of the Executive investigating Congress at levels remotely approaching normal, everyday Congressional oversight of the Executive would be right out.
Congress can, at will, in the absence of the least whiff of inappropriate conduct, look into the everyday operations of the assorted Cabinet departments. The Executive has no place holding similar investigations into the everyday workings of Congressional committees; it would make no sense in the context of the Constitution.
Right. Nobody disputes that. But of course all of those Cabinet departments were created by legislation passed by Congress, so their oversight role is explicit.
Their oversight role over the President (and by extension his office) is far less clear, since Congress did not pass legislation creating the presidency - their authority stems from the same document, and that document takes great pains not to place one branch in a superior position over the other ones.
Now you dance around executive privilege in these discussions like an ugly prom date you regret inviting, but it is quite clear that this principle exists in some form - the debate is really only the scope of it. I think it would be helpful to drop the position that Congress has the right to oversee everything - that position cannot be maintained on the face of it.
Better to discuss what it is proper for them to see.
In mid-July of 1973, it became apparent that there were tapes of conversations in the Oval Office of President Nixon talking with several of his aids over a period of time. Because of the Senate Watergate hearings that were on-going at the time, the Senate supoened these tapes.
I think this situation closely parallels the current one. Bush’s argument is that conversations with his advisors should remain confidential. His aids should feel comfortable in being able to speak freely in giving him the best advice possible. Therefore his advisors have Executive Privilege.
If private conversations in the Oval Office are not confidential, I certainly don’t see why these would be any different. In the 1970’s the Prosecutor’s office said that “conversations involving illegal affiars should not be concealed due to the claims of Executive Privilege.” Have we lowered our standards in the last thirty years? Lowered our standards since the Nixon years?
What do the people do when the Justice Department is unjust and the measures available for administering the remedy are not functioning? How closely will the Supremes look at previous rulings about EP if the case gets that far?
I agree that Bush won’t be impeached and certainly he won’t be removed from office. But don’t talk to me about dreamers, Bricker. I had to stand in line just to sign up hours in advance for a chance to hear the actual Oval Office tapes at the National Archives. But hear them I did.
By the way, someone said that Harriet Myers isn’t part of the Justice Department. I’m not certain of this, but technically, I think that she is.
The White House Counsel is part of the Executive Office of the President, and while the Counsel serves as the President’s liaison with the Justice Department, that office most certainly is not part of it.
To the OP: I’ll pick option 3, for £100 Chuck.
Congress will not be able to do anything, because Bush will run out the clock. I think their only real option is for Congress to continue to pound on the WH for things like this until November next year, and keep it in the voter’s minds that the Bush Whitehouse truly and honestly believes it is above the law and the stink of corruption will waft through the halls of Government and destroy anyone who remotely supported the Bush Whitehouse in the last 8 years.
Then we, the voters, can make sure the next guy or girl toes the line a bit more, take the power back into Congress where it should reside, and hammer on our elected representatives to ensure that happens.
I have very specifically addressed that here.
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I have never suggested that EP doesn’t exist or is invalid.
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The legitimacy of Congress’ oversight of the Cabinet departments is unquestioned, AFAICT.
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An Executive Branch shell game that guts Congress’ oversight of the Cabinet departments is therefore invalid, even if it involves the use of EP.
What part of that do you question?
There is tension between points one and two. You appear to resolve that tension in point three by saying that in all cases involving Cabinet departments, EP must yield to Congress’ oversight. In my view, that’s not a correct statemant, since to adopt it would effectively eviscerate the executive privilege.
So while I can’t speak for Mr. Moto, I question point three.