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June 29, 2007 10:30 PM UTC

Crisis Point

  • 29 Comments
  • by: Phoenix Rising

( – promoted by Colorado Pols)

This is, as will soon be obvious, not a diary on Colorado politics.  But it touches on important ideas about government and our future that are fundamental to our core beliefs; it is something that we cannot avoid and should not shun away from discussing.

The committees of the Judiciary and Oversight in the U.S. Congress have just been told that their subpoenas to the White House and various agencies on several vital subjects will be denied by the Bush Administration.  This sets up a Constitutional Crisis the likes of which we have not seen since the Nixon Administration, and with undertones which would seem to set it far beyond the level of that prior crisis.

Where do we go from this point, what resolution would you like to see, and what resolution do you foresee?  Continue after the break for discussion…

The Congress’s requests for information on warrantless wiretapping, the hiring of attorneys, and the Information Security Oversight Office’s rejection by the VP’s office have all been denied as of yesterday.  Although the official claim is “executive privilege”, no specifics have been provided as to what privilege the Executive needs regarding these subjects; a request for that information was sent today and a response is due on the 9th of July.

But more importantly, it seems the Administration is aware that it is in legal hot water.  One Administration official admits that testifying under oath or even with a transcript “sets up a perjury trap” – a problem that likely wouldn’t exist were nothing actually amiss.

The Constitution does not explicitly grant to the Congress the power of oversight; the notion was so inherent in the concept of a representative body of government that the Founders didn’t think it necessary to write it down or even discuss it much.  The courts have long upheld such a power though, ruling that without such oversight, Congress had no means of effectively performing their duties.

Likewise, the Constitution says nothing about the power of executive privilege.  History has held a limited view of the power, and courts have only ruled that such a power should be available in the case of true national security.  The President claims the national security need in rejecting all of the recent requests, though such a security interest is unclear for at least some of those requests and is antithetical to the request surrounding the denial of access to the VP’s office.

The supposed next step is to hold the White House in Contempt of Congress, which charge is referred to the U.S. Attorney for D.C. – one of the USA’s slipped in without Senate approval through the loophole created in the PATRIOT Act renewal and a Bush loyalist.  The USA “shall” report the charge to a grand jury, but failure to do so would only result in further contempt charges and a vicious circle of inaction and blame-pointing.

Assuming the Contempt charge was actually considered and referred for prosecution, it seems not unlikely that the conservative Federal District Court and the new majority of the Supreme Court could either (a) deny the issue on political question grounds, or (b) significantly reduce the traditional powers of Congressional oversight.  Result (a) would mean a waste of time, and result (b) could be disastrous for our Constitutional balance of powers.

The third possible result of a court confrontation is a ruling in Congress’s favor, with the White House either capitulating (unlikely given the Administration in question), redirecting to some other claim of privilege or reasoning (most likely scenario?), or – in what seems to be a typical hubris for this Presidency – ignoring both the Congress and the Court.  The latter two options would almost certainly lead to an impeachment proceeding, but would do so at a time when impeachment is no longer important – just before Bush is scheduled to leave office.

Optionally, the Congress can bypass the court and use its own internal proceedings to find the Administration in contempt.  This Inherent Contempt proceeding would see the offending parties hauled before Congress by the Senate Sergeant-at-Arms (backed up by the Capitol Police, who are under his jurisdiction in such cases), and a tribunal of the Congress would rule on the case.  The last time Inherent Contempt was used was, IIRC, in 1925 – it is not a frequently-used power.

Or, given the almost-inevitable stonewalling that the White House loves to use, Congress could proceed directly to impeachment.  As a strictly political tool it has no specific requirements, and the massive and blanket refusal to answer Congressional subpoenas provides the legal basis to issue impeachment charges.  (One of the charges against Nixon was a failure to respond to Congressional subpoenas…)

So where do we go?  We stand at a crossroads.  Down one lane there is an Executive Office that has few checks and balances, who can issue signing statements with the effect of changing the law and who can ignore oversight.  Down the other lane is a Congress with a backbone the likes of which we may not have seen in our lifetime.  What is best for our country now?

What should happen now?

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29 thoughts on “Crisis Point”

  1. This Administration has shown time and time again that it is willing to bend the law well past the breaking point for so long as it is able to get away with it.  The case of Jose Padilla is representative of the way this Executive operates, IMHO – charge him and hold him for something you can’t prove, move him to a military prison when you can’t prove it, contest in court for as long as possible, and when the courts all rule against you, move him somewhere else and start all over again.  Whether or not Padilla is a problem, there must be some justice in this country – some accountability to the law – and the Bushies don’t believe in that.

    My vote is to try for Inherent Contempt, and if that doesn’t produce a more co-operative Executive, go straight for impeachment.  The court system is too slow and too uncertain to elicit a result that is good for our country.

  2. But this is your diary and as you characterize the current situation, it is a crisis. So…

    For me, it all comes down to the secondary point of my undergrad PolSci thesis.  The “most powerful branch” is, effectively, the branch that takes the power they want.  The Admin has decided to do what it wants, when it wants, and, if you dont like it, you can go shove it.  Is this a valid attitude for governance?  Probably not.  But guess what, it works. Is it the best policy for the country?  Again, probably not.  But…

    This Admin has decided that they have objectives and the easiest way to carry them out is to act now, ask questions later.  With a Congress unwilling to really stand in the Admin’s way (and yes, I mean the Dems now and the R’s from 01-07), and a Court generally unwilling to question the Admin’s motives, this President has capitalized on a sort of power vacuum.  My theory: if the opening’s there, you might as well take it.

    In the end, this stuff all tends to balance itself out.  An overly powerful Executive during the Roosevelt years came back into balance w/ reasonably strong Congresses in the following years (Until 1994ish).  Or, you could take an even larger view and say that Presidency was reasonably weak before the 40’s and now we have, as Arthur Schlesinger called it, an “Imperial Presidency”

    So…that’s what I think.  If Congress wants to step up, I have little doubt they can wrangle in the Executive Branch.  If the Court wants to step up, I imagine the same is true…

    1. And they should have plenty of evidence that:

      • this Executive will not agree to any oversight requests voluntarily;
      • this Executive will not negotiate in good faith to comply with any oversight requests;
      • this Executive will lie about its intentions to the public and its counterpart branch, and;
      • this Executive will fight any oversight with every administrative and legal tool available.

      Will the Legislative use the legal checks and balances that were built into the document by the genius of our founders?

      1. The courts are slow and unsure given the way this Administration has politicized everything.  My guess is Conyers and Leahy still trust the system enough to try them…

        But there are so many people who think impeachment is a non-starter… there aren’t many other tools that they can use.  The budget process is fine to get a point across, but it can get very ugly very quickly and result in real people being caught in the crossfire.  Contempt is all well and good if the court system works as it’s supposed to; it’s never really been tried successfully, though.  Inherent Contempt will work if the Secret Service doesn’t bar the Capitol Police and Senate Sergeant-at-Arms, but it’s not much different than impeachment in terms of doing the deed itself.

        Congress needs to make sure the heavy weaponry is in working order, because small arms tactics aren’t going to work with this White House.

        1. could be done in a month. That would send a real nice message to Vice President Bush and Cheney.

          Maybe Ken could be the judge in the Senate and earn some cred for his idiotic support of Alberto.

            1.   And when it ends in a 50-50 tie vote (w/ 67 needed to convict), the Dems will look as foolish and partisan as Tom Delay and Henry Hyde looked in Feb. ’99 at the end of Clinton’s impeachment trial. 
                Gonzo and the Shrub will call the acquittal a “victory” and vindication for their policies.

                1. Dems get 49 votes at most, and that’s assuming that Tim Johnson is able to show up to vote.  On an impeachment question, you’ll see 50 Repubs plus Lieberman backing up the administration.

                    2. but I cant imagine any R’s voting to impeach Bush.  Maybe Specter, Collins, Snowe, that guy from Ohio, Smith, Coleman…but that’s about it.  Still, Dems would end up looking kinda dumb when they fail miserably at trying to impeach either Gonzo or Bush…

    2. A turning point or moment of decision.

      This is a critical moment – not necessarily one from which we cannot eventually return, but one for which there will be long-term consequences.

      As you say, the branch with the most power is the one that grabs it and uses it.  I believe that if we go too much further down the current path, we may head into the land of “a permanent Republican majority” (translation: one-party rule).  The vision voiced by Newt is not an abstract thought; it is a goal with a plan, and a plan with many diverse steps.  When I was a younger Republican, the plan was never told to me – I voted Republican because I believed in fiscal responsibility.  But over time it has revealed itself as the monster as it was envisioned: a plan to install (neo-)conservatives at all levels of public service and government to the point where other parties would be shut out and shut down, where the (Republican) President really was above the law as applied.

      Yes, Democrats took back the Congress – kinda.  But the plan still exists, and that plan is in danger right now if the Congress grows a pair.  This is, to my eye, a showdown that may well determine the future of our country.  I like using the soap box and the ballot box; I’m not so comfortable with the thought of resorting to the ammo box and hope we don’t come to that.  Congress will make a decision that points us towards the future – whichever one that is.

    1. Rahm Emmanuel sponsored an amendment to de-fund the Office of the Vice President which unfortunately lost.  (I think the margin was 217 to 209, so it was close.)  It would have forced Cheney to furlough his staff, move out of the V.P. mansion, and freeze his expense account.

        1. But who really cares if the House takes the VP’s funding away?  There’s no way the Senate does the same.  They wont vote to do it the first time they consider the “Financial Services and General Government Appropriations for FY 2008” nor would they do it when the bill (assumedly) comes out of Conference. 

          Further, the bill went to final passage later the very same day Emanuel’s amendment failed.  So…the VP will continue to do whatever he wants and the House will continue to whine about it…nothing more…nothing less

    2. If Congress wishes to remain a co-equal branch of government, they can’t allow the executive branch to outright defy them on matters of oversight.  I am still surprised that so many Republicans are so willing to give up their traditional powers.  Especially Senators.  They used to be so protective of their prerogatives.

  4. “The Constitution does not explicitly grant to the Congress the power of oversight”, is not really right.

    Article II, Section 3 of the United States Constitution States (referring to the President) that:

    “He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.”

    Of course, Article I, Section 8 of the United States Constitution also states that Congress has the power: “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

    It seems to me that giving information to Congress and complying with Congressionally enacted laws are both things expressly provided for by the Constitution.  It isn’t that Congressional oversight power is vague, the President is simply lawlessly ignoring the Constitution and laws that he is sworn to uphold.

    1. Article II is, of course, the section on the Executive powers and responsibilities, not that of the Congress.  It does not grant to Congress explicitly the ability to perform oversight, but it does tell the President to show up once in a while (i.e. once a year) to talk to them.  That the President is supposed to faithfully execute the laws does not mean explicitly that Congress can call him to account in any way other than by budget or impeachment.

      And Art. 1 Section 8 only gives Congress the responsibility for passing laws, not for overseeing them.

      Oversight – actually calling on the Executive to provide information and feedback – is never explicitly mentioned.  As you note, however, it is implicitly assumed and has been held so since the dawn of the Republic.

      1. Kennedy has voted with the majority every single decision this court season.  And he’s voted with the conservative side more often than with the liberal side.  But he’s also consistently the one saying “this doesn’t hold for pathological cases of X”.

        Would Kennedy side with questionable executive privilege, or with sanity?  Here’s to his good health; I feel he’d rule for sanity over this madness.

  8. It seems more like the political theater that has become business as usual at the end of a two term Presidency.  The political crisis in the last year of a Presidency that pitted Congress against the President happened to Reagan, and happened to Clinton.

    How about demanding a Congress that actually does something substantive for a change?  Like, actually ask questions and demand answers before agreeing to send troops in harms way?  Like, actually pass immigration reform?  Like, adopt a meaningful energy policy?  Like, actually adopt a health care plan?

    The “crisis” in my view is that our elected Congressional officials are ineffective in dealing with matters of substance when we need them.  They only stand up to address a crisis when, in historical perspective, the issue Congress engages on really doesn’t matter.  Is action on AG firings by Gonzales really more important than the wholesale failure of Congress to adequately question why we engaged in Iraq? 

  9. I also think that impeachment is a non-starter for Bush/Cheney, though not quite so much for AG.  However, the Committee, I’m pretty sure, can hold hearings, lay out all the eveidence and find them in contempt.  From the evidence gained or deduced in the hearings other action can then be taken including a better shot at funding.

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