Congress

Bush to Congress: Try and Make Me

|

Democratic lawmakers seeking documents touching on the controversial dismissals of nine U.S. attorneys are contemplating contempt charges against recalcitrant White House officials. Bring it on, says the Bush administration, but don't expect the executive branch to help. That's a problem, because the usual procedure in cases of congressional contempt is for the speaker of the House or the president of the Senate to refer the matter to the appropriate U.S. attorney, "whose duty it shall be to bring the matter before the grand jury for its action." Not gonna happen, says President Bush, via an unnamed "senior official" quoted by The Washington Post:

A U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case. And a U.S. attorney wouldn't be permitted to argue against the reasoned legal opinion that the Justice Department provided. No one should expect that to happen.

This is similar to the position taken by the Reagan administration in 1984, after the House voted to cite EPA head Anne Gorsuch for contempt because she refused (based on the Justice Department's instructions) to turn over information about Superfund litigation. "Following the Gorsuch contempt," notes the Congressional Research Service in a 2003 report (PDF), "the Office of Legal Counsel wrote an opinion…concluding that as a matter of statutory interpretation and separation of powers analysis, a U.S. Attorney is not required to bring a congressional contempt citation to a grand jury when the citation is directed against an executive official who is carrying out the President's decision to invoke executive privilege."

Mark J. Rozell, a professor of public policy at George Mason University, tells the Post this doctrine, now revived by the Bush administration, is "astonishing," "a breathtakingly broad view of the president's role in this system of separation of powers" that amounts to "saying the president's claim of executive privilege trumps all." By contrast, David B. Rifkin, a former Justice Department lawyer under Reagan and Bush I, "praised the position and said it is consistent with the idea of a 'unitary executive,'" reflecting the reality that "U.S. attorneys are emanations of a president's will."

I don't like the sound of that. Under this theory, could the president also block the prosecution of an official who, say, tortured a prisoner or conducted illegal surveillance, if the president determined that such measures were necessary, proper, and constitutional tactics in the war on terrorism?

Such issues will not be resolved anytime soon. I'll go out on a limb and predict that the current confrontation, like the one with Gorsuch and every other showdown over documents reviewed by the CRS report, will be resolved without any actual prosecutions for contempt. After some more posturing, the administration will give Congress the information it wants while insisting it really doesn't have to.

NEXT: It'll Be Obama and Romney!

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. The officers charged with being the top prosecutors and investigators in the United States – the ones given the day-to-day responsibility for upholding the law – are now mere “emanations of the president’s will.” So much for a nation of laws, not men.

    The sad irony is that people putting forward this royalist claptrap call themselves by that honorable word “republican.”

  2. So much for sundowning the independent prosecutor law.

    I don’t want to hear any more complaints about it being a “4th branch” of the government. Not when we have an administration that now essentially admits that the Justice Department will not be permitted to enforce the laws of the United States if the President finds it politically disadvantageous.

    It should be becoming clear to everyone now that “Independent prosecutors were accountable to no one” was a feature and not a bug. And a desirable feature at that.

  3. “It has long been understood that, in circumstances like these, the constitutional prerogatives of the president would make it a futile and purely political act for Congress to refer contempt citations to U.S. attorneys.”

    I seem to recall a constitutional prerogative that Congress has … begins with “I”…

    Seriously, I wasn’t big on impeaching a lame duck prez with ~18 months left in office before, but he’s really asking for it with this stuff.

  4. I still think that this is a small matter compared to the president’s wiretapping issue. I think democrats are wasting political capital on a dead end.

  5. Also, doesn’t Congress have its own authority to jail people for contempt, without the assistance of the US Attorney?

  6. I agree with L_I_T. There’s a lot more to go after Bush than this, and I don’t know of anyone who had their civil liberties violated, or died, because Bush fired some lawyers.

  7. We reach a moment of low comedy with the banana republicans reduced to blathering about emanations and penumbras.

  8. Yes, but compared to some of the other counts in a potential impeachment bill like wiretapping, this could be an issue that would crystalize impeachment support. People can in a soundbite sentence understand, “We are not subject to your laws” as cause for impeachment.

    Send the referral to the US Attorney and see if they really try to ignore it. This may just be bluff.

  9. Not the Senator,

    Or the public might not care because nobody really fears being fired by the president from his job. This sounds more like a political partisonship war or at best a legal wrangling between the legislative and executive, but not a constitutional crisis like many other things Bush has done. I don’t see how this would crystalize impeachment support outside of DC.

  10. jf, think of Carol Lam in San Diego.

    During wartime, a Congressman on the Armed Services Committee steered funding towards military projects, or denied them funding, depending on whether he received bribes. People throughout the military, CIA, and private industry have been implicated, but the White House used its hiring and firing power to end the investigation.

    During wartime they did this.

    Impeach.

  11. L_I_T,

    People fear being prosecuted because their political beliefs and partisan affiliation are different from those of the President, and they are disgusted by the well-connected and corrupt avoiding prosecution because their beliefs and affiliations are similar to his.

  12. joe,

    Then don’t allow the president to appoint prosecuters. Otherwise, you’re just hoping that the president screws up some of his appointments and they turn out ok and then afraid he can change them. I think this is technical detail that misses a larger issue that people might actually be able to get behind.

  13. I seem to recall a constitutional prerogative that Congress has … begins with “I”…

    Seriously, I wasn’t big on impeaching a lame duck prez with ~18 months left in office before, but he’s really asking for it with this stuff.

    I agree totally – politically, it doesn’t make much sense for the Democrats to impeach Bush but it’s getting to the point where Congress simply has a duty to do so. Otherwise, they are allowing dangerous precedents to be set for future Presidents to grab even more power.

  14. I believe it was Bruce Fein who suggested impeachment based in part on obstruction, for Bush’s assertion of executive privilege in bad faith, and for pressuring witnesses not to testify. This is just icing on the cake. Fein’s argument was that successive presidents will assume these powers as well if Bush isn’t stopped. Impeach.

  15. The trouble is Congress hates for anyone to look into the way they do buisness .Remember the hue and cry when the FBI searched William Jefferson’s office?They go on fact finding junkets funded by lobbyist and pass bills through back room deals then demand total compliance from others.Plus their in love with hearings ,they demand everyone from baseball players to doctors appear before them.Then when they have a good case such as this issue there ignored and being accused of overstepping thier bounds again.

  16. Otherwise, they are allowing dangerous precedents to be set for future Presidents to grab even more power.

    And you seriously think the Democrats wouldn’t take advantage of this power? There’s a reason they’re all posture and no action. Where’s your head Dan T.?

  17. I’m afraid I agree with x,y
    If the Democrats think they are likely to win the White House in ’08, what incentive do they have to limit this president’s persuit of more power for the executive?
    This is a scary scenerio indeed.

  18. If you see the issue as only dealing with the fired US Attorneys, it may not resonate. If it’s framed as Executive Privilege trumps all, that subpeonas by Congress are unenforcable, which seems to be what they are claiming, then it’s an issue people can understand.

    Beyond actual advice to the President which has some obvious rights to privilege, are the American people ready to concede that Congress has no capability for oversight of other Executive Branch functions? And that they Justice Department may not pursue prosecutions in any case where the Executive is willing to claim privilege?

    I think those are issues that are easily understood by the electorate.

  19. L_I_T,

    I think a better solution would be to allow the President to appoint US Attorneys, but not fire them without the approval of the Senate. He can get “his guys” in there, but after that, they are independent from political pressure.

    And yes, I believe that the next Democratic president will be likely to pull the same thing if Bush gets away with it. Making federal prosecutors into partisan operatives increases the President’s power, and I don’t trust any politician to avoid the temptations of power.

  20. The bad precedents weren’t set by this administration. No, the abuses of power that we’ve seen are the natural result of the increasing assertions of executive privilege coupled with the increasing deference that Congress has given to so-called presidential prerogatives. It was stupid twenty years ago, and it’s stupid now. If we ever have a major war again or a 9/11 times 10, we may face an extreme Constitutional crisis. Remember, whether you like the people in power this week or not, the failure to check power will result in a less and less accountable and controllable executive.

    On the flip side, giving Congress too much oversight could result in a super-legislature, which would reduce the president to something more like a prime minister. That’s not good, either, because then we lose the primary check on Congress.

    I’m not 100% sure about the U.S. attorney firings themselves, but the overall resistance to oversight pisses me off.

  21. joe,

    But then, how would the prez be able to put his own people in at the beginning of his administration? You have to fire the people from the previous admin, and if your party doesn’t control the Senate, that could be a pain.

  22. crimethink,

    By appointing them to set terms.

    I guess I only typed that part in my head.

  23. “If we ever have […] a 9/11 times 10”

    8.1818181?

  24. this doctrine, now revived by the Bush administration, is “astonishing,” “a breathtakingly broad view of the president’s role in this system of separation of powers” that amounts to “saying the president’s claim of executive privilege trumps all.”

    They’ve been saying that since about twenty seconds after W took the oath of office. How anyone can be “astonished” at this late date is astonishing. I agree that the prosecutor firings are penny ante compared to larger crimes the administration has been routinely engaging. But it this is what it takes then for Zogs sake lets get on with it. Impeachment, trial, conviction, execution. The sooner the better.

  25. VM,

    No. I was working in base 12.

  26. ALL YOUR BASE TWELVE BELONG TO US.

  27. Yeah, good idea. Let’s impeach a guy because he won’t turn over documents so that the Democrats can extract more political gain from a manunfactured scandal. Of all the examples that can be raised concerning Bush’s cavalier attitude toward the law, this one is the most ridiculous. His right to fire these people at will is undisputed. The notion that this is something other than a witchhunt for the benefit of the Democratic Party is absurd.

  28. Pro Lib,

    You fool! Don’t you know that base 13 is the key to understanding the Answer to the Ultimate Question of Life, the Universe, and Everything?

  29. There’s always the Guillotine.

  30. Bill,

    I would agree that the original “scandal” was pretty dubious. All they had to do was come out and say, “yes, we fired them because they weren’t pursuing the goals of the administration, that’s within the president’s power” and the Dems wouldn’t have been able to do anything.

    But, by blatantly lying before Congress about the reasons for firing, and who in the administration was involved, and now invoking executive privilege on everything that moves, the non-scandal has turned into a constitutional crisis. Trying to cover up a little problem (or a non-problem) quite often turns it into a big problem in the long run.

  31. And you seriously think the Democrats wouldn’t take advantage of this power? There’s a reason they’re all posture and no action. Where’s your head Dan T.?

    Um, read what I wrote – I acknowledged that from a political standpoint, the Democrats had little reason to persue impeachment.

    But I am saying that they have a duty to the country to impeach Bush (both Republicans and Democrats alike).

  32. I think the more interesting and provocative subpoena is for the emails sent by White House officials (aka Karl Rove and Sara Taylor) via RNC mail servers.

  33. I would agree that the original “scandal” was pretty dubious. All they had to do was come out and say, “yes, we fired them because they weren’t pursuing the goals of the administration, that’s within the president’s power” and the Dems wouldn’t have been able to do anything.

    It’s only dubious if you don’t see anything wrong with the President ordering his attorneys to start investigations of a purely political nature instead of investigations based on legal principles. Bush was using those attorneys in an attempt to sway elections by indicting Democrats on phony voter fraud issues in key states.

  34. I’ll be clear. I think Bush’s “naah naah, we don’t have to listen to you” spiel while sticking his tongue out at Congress is stupid, but this is a witchhunt on a non-issue, while ignoring plenty of real issues the executive group has to answer to. If Congress was really upset at the firing’s, it could vote to amend the appointment process, but this looks from an outsider’s perspective to be a power struggle rather than any sort of real issue the American public should be concerned about. There’s plenty of other battles that have much more significance, so I wish Congress would drop this and move onto them where a real debate about executive privilage can be discussed.

  35. Also, doesn’t Congress have its own authority to jail people for contempt, without the assistance of the US Attorney?

    Congreess does have that power and they should send the Seargeant-at-Arms (and he should have arms) to arrest Harriet Miers at once. This used to be done all the time.

    Congress then has the power to try Ms. Miers for contempt. They should do so.

  36. I’m genuinely suprised at the number of people who openly acknowldege that the White House tried to turn United States Attorneys offices into outposts of partisan operatives using their prosecutorial and ivestigative powers to advance the Republicans’ electoral chances, and declare that that is entirely appropriate. What happened to belief in the rule of law? What happened to the disinterested pursuit of justice? Those all go out the window when the goals being pursued involve defeating Democrats in elections?

    I think it’s disgusting when the DPW paves streets that the local politicians’ supporters live on before other streets. They should pave streets based on objective criteria applied in a disinterested matter.

    This isn’t about paving, or not paving, streets. It’s about investigating people, indicting them, and costing them their freedom and fortune, and I’m supposed to accept that it’s ok for the White House to play these political games? No, it’s not, it’s corrupt and disgusting.

  37. There is one reason the Democrats aren’t impeaching Bush or Cheney.

    They don’t have the votes. They’re not going to impeach him only to have it fail in the Senate. No point.

    It’s not because they’re “preserving the power for a Democratic president” — most of them are (or are planning to be) lifelong Congressmen. They like the power they have — they’re not going to give it up on the off chance one day they might be the Prez.

    They’re certainly not going to do it “for the party” since Democrats like nothing more than to argue violently amongst themselves.

  38. Bill,

    Political gain is really the only motivation for anything done in Washington, since politicians are very rarely convicted of braking the law, even though it is fairly obvious that they do so fairly regularly. That there is no law preventing the President from using the Justice department to investigate political opponents means that the threat of taking on political damage is the only check on that power. That the Democrats are using this for politcial gain doesnt bother me at all. It is exactly what they should be doing in a two party system, and I would hope that if a Democratic president did something unethical or marginally legal (such as lying about a blow job), the republicans would bring it to light as well.

  39. I’m genuinely suprised at the number of people who openly acknowldege that the White House tried to turn United States Attorneys offices into outposts of partisan operatives using their prosecutorial and ivestigative powers to advance the Republicans’ electoral chances, and declare that that is entirely appropriate.

    joe, if you’re refering to the comments made @ H&R, I suspect that a lot of it isn’t viewed as appropriate. Rather, it’s viewed from the perspective that political power will almost always be abused, and that politicians will almost always seek to entend and enlarge the power that they’re abusing.

    I view the attorneys firing that way. I think the talk of impeachment based on the issues around the attorney’s firing as wrong headed, when there have been abuses of power far more deserving of impeachment. Say, for example, lying to the American public to get support to start a war that has resulted in the deaths of thousands of Americans soldiers, and tens (if not hundreds) of thousands of innocent Iraqi citizens. Not to mention nearly a trillion dollars spent on said war.

    As others have pointed out here, I think the reason this has been chosen is a tactical ploy seen as the best way for the Dems to get political gain while not potentially limiting the power their guy/gal will get when they move into 1600 Pennsylvania in a couple years.

  40. What Josh said.

    The genius of our system of co-equal branches of government checking each other’s power is that it turns the eternal quest of individual politicians to grasp for power into a means of defending our liberty and rights from government power.

  41. Lets see. Reagan, a libertarian “hero” has left a legacy that allows the executive to escape scrutiny in legal matters and allowing a furthering of soviet style accumulation of executive power unchecked by the court system.

    Who woulda thought it? Well anyone who realized that Reagan was to Freedom what Putin is to the freedom/free market.

    Libertarians always throw their support to the candidate most likely to create strong soviet styled governments.

    Ron Paul may be the only case in history that this is not true. Which is why, in the end I expect libertarians to turn on him like dogs.

  42. What happened to belief in the rule of law? What happened to the disinterested pursuit of justice?

    joe,
    The Rule of law only applies to the other team.

    “Rule of law” is a club to beat the people who aren’t in power with.

    And all this talk of “impeachment proceedings” is fucking hilarious.

    Does anything think these GOP congresscritters are going to vote to impeach Jesus W Bush?

    I think the more interesting and provocative subpoena is for the emails sent by White House officials (aka Karl Rove and Sara Taylor) via RNC mail servers.

    I agree with this as well. What they did was a clear violation of the Hatch Act and there is no executive privelage to assert for the covering up of violations of law.

    The other thing that is completely ridiculous is Harriet Miers’ refusal to even appear to assert privilage. Even if you have a legit executive privileges claim you don’t have the right to ignore a subpoena. You have to fucking show up and claim executive privilege and justify your use of it. You don’t get to just send a letter saying “executive privilege bitches” and not bother showing up at all.

  43. Not fighting dogs mind you…no…I’m thinking of the kind that pee on your leg when they get scared.

  44. They’re certainly not going to do it “for the party” since Democrats like nothing more than to argue violently amongst themselves.

    I have to agree with this as well. I seriously doubt that the blue dogs and the southern Dems are too keen on making sure Hillary or Obama have all the executive power they need.

  45. BakedPenguin,

    I’ve seen a lot of “what part of political appointee don’t you understand?” arguments on Hit and Run, and elsewhere, from conservatives.

    Look at Rifkin’s statement – he thinks that this is how the President should be acting. He thinks that United States Attorneys should be considered mere agents of the President’s will, like the Communications Director.

    This is the heart of the “Unitary Executive” theory – that there should be no one in the executive branch who just paints lines down the middle of the road. The entire executive branch is supposed to be a tool for the personal, partisan, and ideological agenda of the president. That’s not republicanism, that’s monarchy.

  46. The officers charged with being the top prosecutors and investigators in the United States – the ones given the day-to-day responsibility for upholding the law – are now mere “emanations of the president’s will.” So much for a nation of laws, not men.

    Wow Joe is sure more full of shit this morning then usual.

    I like this one though it got me to giggle

    And yes, I believe that the next Democratic president will be likely to pull the same thing if Bush gets away with it. Making federal prosecutors into partisan operatives increases the President’s power, and I don’t trust any politician to avoid the temptations of power.

    Joe here is implying that Bush invented political appointments…as if lawyers at the attorney’s generals office since the creation of the attorneys general office have not been political appointees.

    The reason why no one said booo when Clinton fired a bunch of them when he took office was because that is what is what has been done by every president before him.

    But I have to admit the more time the dems waste on this mean less time for them to pass huge tax increases…not a bad thing really.

    I also like how the only ones making a fuss on this issue are the lefties who troll around here…

    Joe
    Dan t
    Johny

    its literally a who’s who of “why the fuck are you here anyway” people

  47. BakedPenguin,

    See?

    Notice how he was even kind enough to use the “What part of political appointee don’t you understand?” argument.

  48. Unfortunately for all of us, this question has long since been resolved in the President’s favor. That happened when Andrew Jackson defied the Supreme Court’s ruling that the “Trail of Tears” was illegal.

    The only real solution to this problem is to abolish the separation of powers and give the Supreme Court the power to remove a President who disobeys one of its orders. Until and unless that happens, the US is a nation of men and not of laws.

  49. The case no longer has anything to do with the firings of the US Attorneys. So maybe Corning could back his red herring truck out of here.

    It is beyond dispute that officials of the Justice Department provided the Congress with testimony in this matter that was factually incorrect. The administration admits this, and in sworn testimony several of the officials in question asserted that some other official’s testimony was incorrect.

    The Congress is entitled to investigate whether it was intentionally misled by an administration witness or witnesses. This is true regardless of whether Bush has the power to fire and rehire all the US Attorneys every day if he likes.

    The Congress also is entitled to investigate whether there was a conspiracy to mislead it.

    In the course of investigating whether it was intentionally misled, the Congress uncovered apparent violations of the Presidential Records Act. The Congress is entitled to investigate potential violations of the Presidential Records Act.

    If the administration is angry that Congress appears to be engaged in a fishing expedition, they should have thought about that before Abu Gonzalez and his gang went up to Congress with shifting and contradictory stories and incomplete and misleading testimony. Gonzalez fucked up, and rather than just having him resign the President is determined to defend him, even if that means ordering his personnel to engage in contempt of the Congress, and even if it means instructing the Justice Department to refuse a duty required of it under law.

  50. Joshua,

    You are absolutely correct sir. My support for Ron Paul as the only candidate I can stand, and my belief that any president who increases the scope of government (think changing the drinking age, think decreased support for the 2nd and 4th amendments, as well as regular assault against the first in a nearly islamic like matter-ed meese: need I say more) is a president I don’t/didn’t like, definitely makes me a liberal troll.

    I’ve been called a libertine by someone at NRO, a libertarian at any number of “liberal” blogs, and I thank you for your fine definition of me as a liberal.

    Thank you sir.

  51. Also, doesn’t Congress have its own authority to jail people for contempt, without the assistance of the US Attorney?

    No it doesn’t. You’re thinking of the British House of Commons, which is held to have “inherent” power to punish contempts against it.

  52. re: Inherent power of Congress to jail for contempt.

    I disagree with Seamus. Congress has the inherent power to jail and has used that power in the past, but not since the 1930s. For a better discussion of the limitations of this power, and its exercise, look at the discussion on volokh.com

  53. I thank you for your fine definition of me as a liberal.

    I never called you a liberal….I called you a lefty.

  54. Notice how he was even kind enough to use the “What part of political appointee don’t you understand?” argument.

    Joe lives in the funny apolitical universe where its OK to ignore the stupid laws he doesn’t like for political reasons but it is not OK to ignore the stupid laws he does like for political reasons, all the while claiming that his support of these particular set of laws is not a political position.

  55. During wartime, a Congressman on the Armed Services Committee steered funding towards military projects, or denied them funding, depending on whether he received bribes. People throughout the military, CIA, and private industry have been implicated, but the White House used its hiring and firing power to end the investigation.

    During wartime they did this.

    Impeach.

    Is that an apolitical rational joe, to ignore the principle of innocent until proven guilty to support your position?

    Or was it just that the moon bat lefty conspiracy theory blog of the day that you ripped that from forgot to insert “under investigation for…”?

    Oh i know this isn’t all over the fucking place cuz big media is in fact in cahoots with Bush to squash it.

    Hell i know…Reason magazine will not post on this aspect of the firings cuz they to are in just as deep with Bush. The cover up is immense!

  56. No, joshua.

    I live in a universe where “legal” and “above criticism” are not synonymns.

    Why are you yammering about ignoring laws? Who said anything about laws?

    I think this president is governing in a shitty manner. Care to man up and take a swipe at addressing that point?

    BTW, joshua, they fired Carol Lam after she had gotten an indictment on Cunnignham, and while she was still working on his co-conspirators.

    Innocent until proven guilty has nothing to do with it – they spiked an investigation, to make it impossible to prove guilt.

    Impeach.

  57. “””The case no longer has anything to do with the firings of the US Attorneys. So maybe Corning could back his red herring truck out of here.””””

    Bush admin fans seem to ignore the part about the AG probably lying under oath. But if you look at how they feel about Libby, it’s obvious to see they are not believe in honesty even if you’re sworn to tell the truth.

    BTW, the AG is still claiming it wasn’t political when it has become obvious that it was. If there is no wrong doing, just say it was political.

Please to post comments

Comments are closed.