Jay Reding.com

Calling Their Own Bluff

Ed Morrissey notes that Congressional Democrats are about to end up fighting a losing battle over executive privilege by filing contempt charges against two White House aides. As The Washington Post reports:

The House Judiciary Committee voted today to issue contempt citations for two of President Bush’s most trusted aides, taking its most dramatic step yet towards a constitutional showdown with the White House over the Justice Department’s dismissal of nine U.S. attorneys.

The panel voted 22-17, along party lines, to issue citations to Joshua B. Bolten, White House chief of staff, and Harriet E. Miers, former White House counsel. Both refused to comply with committee subpoenas after Bush declared that documents and testimony related to the prosecutor firings were protected by executive privilege. …

Republicans on the panel argued strongly today against issuing contempt citations, and Democrats shot down two proposed GOP amendments before voting for the contempt findings.

“I believe this is an unnecessary provocation of a constitutional crisis,” said Rep. F. James Sensenbrenner Jr. (R-Wis.). “Absent showing that a crime was committed in this process, I think the White House is going to win an argument in court.”

Captain Ed observes:

Tony Snow rather forcefully responded to this development, calling it a singular event in American history, where the legislative branch will direct the executive branch — in the form of the federal prosecutor — to file contempt charges against itself. The Department of Justice reminded Congress that administrations of both parties have long held that Congress has no power to issue contempt citations for claims of executive privilege. Obviously, the current leadership in Congress doesn’t care.

It portends a showdown in the Supreme Court over the nature of executive privilege, and Sensenbrenner is correct. Absent any evidence of criminal conduct, the Supreme Court is highly unlikely to grant the legislative branch free rein to pursue contempt charges or to undo executive privilege. Nancy Pelosi will in all likelihood force a ruling that will firmly establish executive privilege and leave Congress with less power than it has had, after having finally called its own bluff.

The problem the Democrats face is that they have almost no chance of pulling this off — the courts are not going to rule that the Constitution allows Congress to charge the President or his aides with contempt outside the formal process of judicial impeachment. The best outcome that they could hope for is that the Supreme Court falls back on political question doctrine and refuses to take the case — but even that’s doubtful as this appears to be a matter of separation of powers rather than a political question.

The Democratic-led Judiciary Committee, on a party-line vote, is essentially asking the Executive Branch to serve a subpoena on itself. This is something that the Supreme Court has already found to be unconstitutional. In Bowsher v. Synar, 478 U.S. 714 (1986) the Court held that Congress could not fire the United States Comptroller General, as he was a member of the Executive Branch, and the only constitutional measure that the Legislative Branch has over the Executive is the power to impeach. Likewise, in Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983) the Court held that one branch of Congress could not enact a legislative veto over an action of the Attorney General as that violates the separation of powers under the Constitution as well as the Presentment Clause. U.S. Const. Art. I, § 7, cl. 3. The Legislative Branch cannot infringe upon the powers of another branch even if that branch agrees with the infringement. New York v. U.S., 505 U.S. 144, 182 (1992).

There’s a long line of very clear precedent that does not allow the Legislative Branch to command the Excecutive Branch to do anything, especially when the Executive Branch is exercising its constitutionally-mandated powers. The Department of Justice may have been inept in handling the firings of the U.S. Attorneys, but the Executive has the plenary power under the Constitution to fire U.S. Attorneys at whim and for whatever reason they choose. U.S. Const. Art. II, § 3, cl. 2. The Courts are not going to allow the Legislative Branch — especially one House Committee to interfere in the right of the Executive Branch to carry out its constitutional duties. The chances of the Democrats surviving the inevitable court challenge should they choose to pursue this foolish game are close to nil.

So why bother? Like nearly everything the Democrats have done in the last six months, it’s all about political theater. It could be years before a court challenge is fully resolved, and by then the Democrats will have already done the political damage that they’ve intended to do. Of course, such a ruling explicitly limiting the power of Congress in these matters will effect future Congresses, but it’s rather clear that the Democrats aren’t looking any farther than the next elections.

This kind of ill-advised political maneuvering is exactly why this do-nothing Congress has earned it’s abysmal approval ratings — while they engage in futile efforts to preen for the radical left by chasing after the Bush Administration, the nation’s problems like terrorism, Medicare reform, Social Security reform, transparency in earmarking, and other crucial matters go completely neglected. This Congress has become a joke, and they seem to have no idea that ultimately the punch line will be on them.

4 responses to “Calling Their Own Bluff”

  1. Mentoc says:

    Contempt of Congress, apparently, requires neither the cooperation of the executive nor the judiciary. Your analysis may be obviated simply by the fact that the courts may not have the chance to rule on contempt nor the jurisdiction to do so.

    Since the alternative is unrestricted executive privilege to ignore essentially any inconvenient Congressional oversight by asserting privilege, I don’t see the problem. On what planet is an out-of-control unitary executive better than an out-of-control legislature? (The planet where supporting Bush takes precedence over all sense, I guess.)

  2. Jay Reding says:

    Contempt of Congress, apparently, requires neither the cooperation of the executive nor the judiciary. Your analysis may be obviated simply by the fact that the courts may not have the chance to rule on contempt nor the jurisdiction to do so.

    They make some interesting legal arguments, especially about sending the issue to the full Congress for a vote to provide notice and opportunity.

    The problem is that they have no evidence of any crime or impropriety. They can say that the firings of the USAs were political, but the President has the plenary power under the Constitution to do whatever he wants. The President can get up in the morning and decree that any US Attorney who had worn a red tie in the last three weeks is fired. There’s no limit placed on that power under the Constitution.

    Congress does have a remedy — impeachment. If they think that there’s some problem with the firings, they can vote to impeach. The problem with that is that it makes the sort of Mickey Mouse B.S. that Conyers is pulling impossible — they either have to put up or shut up.

    The courts are likely to rule for the Executive Branch (not just Bush, but any President who comes after) for three reasons:

    1.) The Congress has no evidence of any wrongdoing in the firings of the attorneys and are not resorting to their constitutional impeachment powers.
    2.) The President was exercising a plenary power under the Constitution, which the principle of separation of powers does not allow Congress to second-guess.
    3.) In order to uphold these citations, the Legislative Branch would by necessity have to force the Executive Branch to carry out an action without the passage of specific legislation. To do so would be a violation of the Presentment Clause.

    The Congress can’t compel the Executive to do something any more than the Executive can try and arrest a a member of Congress for voting against a particular bill. The weight of precedent favors the Executive, and ultimately the best the Democrats can hope for is that the Courts leave it as a political question.

    They’d basically be forcing the Court to rule against Congress’ contempt powers (as applied to another branch of government), which would weaken Congress’ position. This issue hasn’t been litigated because in the end the White House has usually backed down — but when the Congress is giving the Executive Branch such an easy case to wipe away that power completely, they’re practically begging the Executive to push the issue. It’s a tactically foolish move, and done entirely for political gain rather than sound legal reasons.

  3. Mentoc says:

    The problem is that they have no evidence of any crime or impropriety.

    They don’t need it to subpoena testimony, and therefore they don’t need it to use contempt charges to enforce the subpoenas.

    The President can get up in the morning and decree that any US Attorney who had worn a red tie in the last three weeks is fired.

    On the other hand, he can’t get up in the morning and say “any US attorney who has ever investigated a Republican or refused to prosecute trumped-up charges against Democrats is fired.” Not even the President has the power to subvert justice to win elections. It’s simply not true that the President can have attorneys fired for any reason at all.

    Anyway, is the President actually involved in this? While they may serve at the pleasure of the President, do they serve also at the pleasure of Alberto Gonzales? At the pleasure of Karl Rove? I’d like to see an argument for that, I guess.

    There’s no limit placed on that power under the Constitution.

    “If the president does it, that means that it is not against the law”, eh? That’s certainly a great place to be taking us back to.

    The courts are likely to rule for the Executive Branch (not just Bush, but any President who comes after) for three reasons:

    Which court? If Congress’s constitutional power to hold people in contempt is absolute – and indeed, no limit is set upon it in the Constitution – then what court has the jurisdiction to rule? If Congress opts to use its Constitutional power of contempt, and not the regular statutory power, I don’t see how any court does. That’s not a power balanced by the constitution. The legislature does have some absolute powers too, you know.

  4. Eracus says:

    “It’s simply not true that the President can have attorneys fired for any reason at all.”

    But then, Mentoc, it certainly IS true, it is PRECISELY true, it has been TRUE for a very long time…….You just don’t know it’s true because you are IGNORANT, which is exactly what your Party’s leadership is counting on — that you and their other useful idiots are too ignorant and misinformed to recognize a witch hunt when they see one and, sad to say, they’re obviously right. Congratulations!! No truth, no justice, ay??

    In March 1993, Clinton’s Attorney General, Janet Reno, fired all 93 U.S. Attorneys. Alert readers will recall she even fired the FBI Director, William Sessions, without cause later that summer. At the time, Jay Stephens, then U.S. Attorney in the District of Columbia, was investigating Ways and Means Chairman Dan Rostenkowski, who was pushing Clinton’s economic program through Congress, and who was later convicted of mail fraud and tax evasion and sent to jail. Likewise with Web Hubbell. Imagine that!!

    All this was occurring as the allegations concerning the Clintons’ Whitewater dealings were coming to a head along with the Paula Jones lawsuit. By dismissing all 93 U.S. Attorneys at once, the Clintons conveniently cleared the bench and replaced each one with “Friend of Bill” U.S. attorneys straight down the roster. Paula Casey, for instance, who was Bill Clinton’s former law student, was appointed U.S. Attorney for Little Rock. Ms. Casey of course never brought any Whitewater indictments, although she did successfully destroy the life and career of David Hale, the prosecution’s key witness to all the Clintons’ derring-do in Little Rock, before she was forced to recuse herself for her obvious conflict of interests in a case she never should have been allowed to undertake. But then, this was a presidential appointment afterall. How convenient!! And perfectly legal too.

    You will no doubt find universal support that the recent firing of these 8 U.S. Attorneys was poorly managed and has consequently turned into a Keystone Kop fiasco. But there is nothing illegal about it and Charlie Schumer and the rest of the Katzenjammer Kids fully understand this. They also understand, however, that you and the rest of their useful idiots don’t have the first clue, and so can be kept hopping mad-as-a-hatter straight through to November 2008 until you hand them the rope they will hang you by. Jolly good!!