June 29, 2007 10:30 PM UTC

Crisis Point

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• 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?

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