Fight over White House subpoenas rises

Shhh...Don't give Bush any ideas about "terrorist bombing" Congress...According to ATS MIX show #2, the Government does watch this site...

Originally posted by Justin Oldham
I'd like to share my most recent blog entry with you. It reflext many of the points you made here. I jsut wanted to do that so that many of you will see that you're not alone in your thoughts. That's why you can make such a splash when you work together to pester Congress.

Thanks for that, Justin. Good stuff, there, definitely. I tried to start a blog or three once... I kept forgetting to add entries and eventually just gave it up, but you inspire me to try again and I think I'll do it in conjunction with my new podcast. Sorry to wander off-topic; I'm just sayin'...

I just wish that the ATS crew would fix that upload window so that we can get back to the business of making and posting new material. As for that blog, you don't have to do it every day. As you can see from my own blog, I do it about once a week. All you really need to do is stick to it so that over the long haul, people can see what you think and why.

Thanks, guys, for the info. Sorry it took me so long to reply but I've been a little busy. Now I need to get my lazy butt in gear and do something. I've never been an activist type but hopefully it ain't too late.

I am pleased to report that the upload problem I have been having is over and done. The trouble was on my end. I deleted my book marked link for the ATS podcasting page, and made a new one. SO informed me that there may have been security issues so I purged my cookies and history and book marked a new link. Now...back to the battle...

For those of you info warriors who are just starting out, I would suggest a blog. Get your feet wet. Once you're used to putting your thoughts out in a way that's comfortable to you, the rest will come over time as you learn from what other people do. Walk before you can run.

Originally posted by Justin Oldham
For those of you info warriors who are just starting out, I would suggest a blog. Get your feet wet. Once you're used to putting your thoughts out in a way that's comfortable to you, the rest will come over time as you learn from what other people do. Walk before you can run.

Glad to hear you're back in the game. I signed up for a new blog yesterday and am just waiting for Zeddicus to get back to me with further instructions. My blog will address not only politics but social issues and maybe even some conspiracy stuff, after all this is ATS, Conspiracy Central HQ, right?

Looking forward to hearing your next podcast, Justin and to all of the rest of you, if Lightseeker can podcast, anybody can podcast; get on board the bandwagon and join the fun.

Roger that, LS. In the years to come, ATS will likely be known more for its alternative news and investigative points of view than it will for just the UFO and Conspiracy stuff. The only way to deny ignorance is to ask the right questions. That's what we'll do here on ATS.

For those who don't know what comes next, let me run down the basics. the House of Representatives through the Government Oversight committee has issued something like eight subpoenas that the Bush administration has challenged.

As you know, Harriet "Supreme Court" Miers was the only person to actually NOT show up so far. So, what comes next? Everything hinges on just how much spine the Democrats have.

If you sense a tremor in the dark side of the force, you're not wrong. Bush has thrown down and now its up to the Congress to get with it...or get served. How do they do that?

1. The House can vote to charge Harriet with what is called Inherent Contempt, which would be actionable in a court of law.

2. The House could wimp out and merely cite her for contempt, which is like a cop shaking his fist at you...while you are speeding.

3. They can say all the tough talk they want, and let it go.

If she is charged with inherent contempt, Mrs. Miers can be tried by a specially convened Congressional court, or the matter can be pursued throug the Federal court system.

As a political strategist, I think this was very hard core. When you get right down to it, there just isn't enough time left of the Bush game clock to prosecute. The irony is almost painful. When Miers skipped on her date wit the the House Committee on Government Oversight, she essentially admited guilt IN MY OPINION.

Read for yourself, 2 U.S.C. § 194 to see how it works. See also, the wikipedia entry for Inherent Contempt. I'm typing this on the fly, sorry for the lack of links. I have company just now. Gotta go. Have a good weekend.

The following blog entry from The Daily Kos comes from a very liberal source. Please note the date on this item, so that you can see just how long this debate has been going on.

Looking ahead: what happens when the subpoenas are defied?

by Kagro X

Mon Mar 26, 2007 at 11:28:21 AM PDT

Last week, both the House and Senate Judiciary committees approved the issuance of -- but have not yet issued -- subpoenas compelling the testimony of Karl Rove, Harriet Miers and others who are or were among George W. Bush's inner circle during the decision-making on the firing of the eight dismissed U.S. Attorneys. Bush, for his part, has signaled his intention to have his aides defy those subpoenas, saying he'd fight it out in court to the bitter end.

But what kind of battle can we expect over these subpoenas? How might such a fight turn out? What issues would be raised? And are the courts the only arena in which the questions might be settled?

The AP's Matt Apuzzo examines the risks:

President Bush has tried for years to reassert a White House right to keep secrets from Congress. Now he must decide how far he wants to go to keep aides from testifying about the firing of federal prosecutors.

If he claims executive privilege and the dispute ends up in court, the fight with Congress will be refereed by a judicial branch that recently has not been kind to the presidency in fights over subpoenas. Lawmakers, meanwhile, risk seeing a judge permanently curtail their power to summon presidential aides to Capitol Hill.

That's a high stakes game. So high, in fact, that it's precisely the sort of case the courts tend to punt, under the so-called "political question doctrine." Political questions are those the courts will -- at least initially -- refuse to decide, preferring to leave the outcome in the hands of the political branches (the executive and legislative), on the theory that the power to decide them resides more properly with those who derive their authority from the voters.

Indeed, Apuzzo's article illustrates the point with this comment:

"I don't think anyone would want this in court. If anything is to be politically settled, it's this one," said Louis Fisher, a Library of Congress specialist on constitutional and an expert on presidential powers.

Fisher's "anyone" could refer just as easily to any or all of the three branches. Both the executive and the legislature have substantial powers at risk, while the judicial branch would simply want no part in settling the question.

How do we know this about the courts? Because that's exactly what they did the last time such a case was brought. And that case is instructive today.

The last time the Congress actually voted to hold an executive branch official in contempt of Congress was in the 1982 case of EPA Administrator Anne Gorsuch Burford. Gorsuch (who was later remarried, to Bureau of Land Management head Robert Burford) was found in contempt by a House vote of 259-105 (with 55 Republicans voting in favor). The charges were, in keeping with practice in statutory contempt cases, referred to the U.S. Attorney for the District of Columbia for prosecution.

And a lightbulb switches on! The actual prosecution of contempt of Congress charges is the responsibility of a U.S. Attorney.

What an extraordinary piece of bad luck, given the current situation!

So now, obviously, the most recent case of contempt of Congress brought against a high-ranking administration official takes on added importance as precedent. Does it not? And just what happened in that case? (PDF)

The Justice Department, anticipating the House vote, moved quickly: "Immediately after the House vote and prior to the delivery of the contempt citation," the department chose not to prosecute the case. [Notes omitted]

Surprise!

But that's not all:

Instead, it asked a district court to declare the House action an unconstitutional intrusion into the President’s authority to withhold information from Congress.

Stanley S. Harris, responsible for bringing the case to a grand jury, listed his name on the Justice Department complaint and advised Congress that "it would not be appropriate for me to consider bringing this matter before a grand jury until the civil action has been resolved."

The Justice Department occupied an unusual ethical position. First it had advised Gorsuch to withhold the documents, and now it decided not to prosecute her for adhering to the department’s legal analysis. In court, the department argued that the contempt action marked an "unwarranted burden on executive privilege" and an "interference with the executive’s ability to carry out the laws." [Notes omitted]

So, what happened in court?

The court dismissed the government’s suit on the ground that judicial intervention in executive-legislative disputes "should be delayed until all possibilities for settlement have been exhausted." The court urged both parties to devote their energies to compromise and cooperation, not confrontation. [Notes omitted]

Dismissed. Because the case turned on a political question.

So Congress was right? Right? Not according to the Reagan administration:

Following the Gorsuch contempt, the Office of Legal Counsel wrote an opinion on May 30, 1984, 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. [Notes omitted, and emphasis supplied]

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You don't have to be a conspiracy theorist to know what's at stake in this "Bush gambit." This showdown over subpoenas can have lasting repercussions.

There's another blog entry which comes from The Next Hurrah, which is another liberal source that
helps to summarize what many ATS members are worried about.

March 27, 2007

Dusting off "Inherent Contempt"

by Kagro X

Yesterday, we discussed the fact that the standard, statutory contempt of Congress procedure was probably inadequate to the task of enforcing the Democratic Congress' hard-won subpoena power:

The last time the Congress actually voted to hold an executive branch official in contempt of Congress was in the 1982 case of EPA Administrator Anne Gorsuch Burford. Gorsuch (who was later remarried, to Bureau of Land Management head Robert Burford) was found in contempt by a House vote of 259-105 (with 55 Republicans voting in favor). The charges were, in keeping with practice in statutory contempt cases, referred to the U.S. Attorney for the District of Columbia for prosecution.

And a lightbulb switches on! The actual prosecution of contempt of Congress charges is the responsibility of a U.S. Attorney.

What an extraordinary piece of bad luck, given the current situation!

A few astute commenters observed that Congress has another weapon in its arsenal for backing up the subpoena power: the long-dormant "inherent contempt" process, described below in the Congressional Research Service's "Congressional Oversight Manual" (PDF):

Under the inherent contempt power, the individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned. The purpose of the imprisonment or other sanction may be either punitive or coercive. Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least in the case of the House, beyond the adjournment of a session of the Congress) until he agrees to comply. The inherent contempt power has been recognized by the Supreme Court as inextricably related to Congress’s constitutionally-based power to investigate.

The most obvious benefit of inherent contempt is that it's conducted entirely "in-house," that is, entirely on the authority of the legislative branch. The most obvious drawback? Spending time on a trial. Well, that and the scene of having the Sergeant at Arms and the Capitol Police physically barred from entering the White House to arrest those who've defied subpoenas.

But is there another choice? What other power, besides impeachment, does the Congress have in its arsenal to enforce the "subpoena power" we were all told this election was about? There are no other direct options, only oblique approaches to using indirect leverage.

The next question, then, is whether or not anybody in Congress has bothered to think things through to this point, and begin preparing for this possibility. And here, I finally have some good news.

Rep. Brad Miller of North Carolina, in his capacity as chairman of the Science committee's Investigations and Oversight panel, has encountered the same sort of intransigence from the Bush "administration" that is threatened over the investigation into the U.S. Attorney firings. Only in the case of his investigation, involving the Department of Education, the "administration" hasn't even really done him the courtesy of making up an excuse for why they're not providing the requested documents. They're just not doing it.

So as Rep. Miller has become increasingly pessimistic about the chances that the "administration" will relent in his case, he's been consulting the same Congressional Oversight Manual, and was dismayed to learn that the enforcement options are indeed quite limited. Inherent contempt, he's discovered, is perhaps the only way Congress will be able to enforce its subpoena power with this "administration," and he's been talking with CRS experts to explore how a modern inherent contempt procedure might be established. Even better, he's been sharing that information with Rep. Linda Sanchez, chair of the Judiciary committee's Commercial and Administrative Law panel that's handling the subpoenas in the U.S. Attorneys matter.

Unfortunately, the current thinking among most Members of Congress is that the subpoena showdown will be settled in court. But as we discussed yesterday, that's highly unlikely. Rather, it seems most probably that the courts will dismiss such a case under the "political question doctrine," as they did in the Burford case in 1982.

Is there a stronger and more direct signal to send to the White House that the Congress is serious about its oversight authority than the one that would come from the House taking the time to dust off the inherent contempt concept, and establish a modern procedure for it? If so, I can't think of it.

At the very least, it's going to pay to be prepared sooner rather than later. Once those subpoenas are issued, it won't be long before we know precisely what the White House plans to do when the chips are down. And if we're sitting around looking at one another when the White House signals its final defiance, we're likely to lose a lot of momentum.

Let's face it: if the "administration" simply refuses to budge, the Congress either has to fold its tent and go home, or enforce on its own authority the subpoena power the American people voted for. Given that we've reached this impasse -- and we knew it was coming -- over an investigation into the hyper-partisan and hyper-politicized nature of the U.S. Attorneys, inherent contempt proceedings would appear to be the first and most direct resort of Congress in enforcing its mandate.

It would also appear to be the last stop short of impeachment. And with that remedy currently "off the table," Congress needs to speak -- and speak soon -- about how it intends to protect its prerogatives.

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I'm showing you the source in it's entirety, with links to back it up, so there's no plagarism here. Again, take note of those post dates. March. ATS membes hve been on the cutting edge of this for a while now, but some are still not aware of the back story.

I have included this material in a recent post to a thread in my CM forum, but I wanted you guys and gals to see this. I know that you don't all stroll through CM territory, and that's okay. If President bush can beat the clock and get away with these subpoena challenges...imagine what Hillary would do with such a new precendent in her back pocket? Yikes.

Originally posted by Justin Oldham

I have included this material in a recent post to a thread in my CM forum, but I wanted you guys and gals to see this. I know that you don't all stroll through CM territory, and that's okay. If President bush can beat the clock and get away with these subpoena challenges...imagine what Hillary would do with such a new precendent in her back pocket? Yikes.

Stop, quit it, you're scaring me!
If Hilary get's into the Oval Office, I am moving as far away as I can; Nerbot tells me France is nice this time of year.

Originally posted by lightseeker
Stop, quit it, you're scaring me!

If Hilary get's into the Oval Office, I am moving as far away as I can; Nerbot tells me France is nice this time of year.

Getting scared is natural in human beings...We've been getting scared as far back as the earliest ancestors of the human race when faced with dangerous situations.

The trick is not to let your fear goad you into a useless or even more dangerous action...Blind fear doesn't help; Focused & directed is the only postitive way to deal with fear.

Sorry, boss. This kind of thing is a regular day on the job for me. It's what I do. I've been banging this drum since 2004.

Well, Justin, at least you've got enough of a "bureaucratic background" that "focusing" your fear isn't a new concept...I may have good ideas when I focus, but you have the handle on the "nuts & bolts" of things.

Just a bit more info on how hot it's getting for the Bush Administration...I'd guess it's about "Fahrenheit 451" now.

More at Source: Bush closer to court showdown

In a letter to the House and Senate judiciary committees this week, Fred Fielding, White House counsel, said privacy was essential for the president to “receive candid advice from his advisers and that those advisers be able to communicate freely and openly”.
But Democrats accuse Mr Bush of obstructing a legitimate investigation into alleged abuse of power by his administration.
“The president seems to think that executive privilege is a magic mantra that can hide anything, including wrongdoing,” said Charles Schumer, a Democratic member of the Senate judiciary committee.
The purge of federal prosecutors has become the main focus of a broader Democratic inquiry into White House influence over the Department of Justice and the aggressive use of executive power by Mr Bush and Dick Cheney, vice-president.
Democrats have accused the White House of orchestrating the removal of federal attorneys for failing to pursue alleged cases of Democratic voter fraud or for prosecuting corruption charges against Republicans with too much vigour.
The allegations were given weight by the discovery of a justice department e-mail that rated prosecutors according to whether they were “loyal Bushies”.
------------------------
The subpoenas for Ms Taylor and Ms Miers were widely viewed as an attempt to redirect the probe towards the White House after months of inconclusive testimony by senior justice department officials, including Alberto Gonzales, the attorney-general.
Many Republicans believe the Democrats’ aim is to ensnare Karl Rove, the top White House political adviser and architect of Mr Bush’s presidential election victories. But the investigation is more than a purely partisan exercise. The three top Republicans on the Senate judiciary committee backed the issuing of subpoenas for Ms Taylor and Ms Miers, reflecting bipartisan concern about alleged politicising of the justice department since Mr Bush took office.
“I think it's very important that we get to the bottom of this as soon as possible because Attorney-General Gonzales continues to serve and the Department of Justice is in total disarray,” said Arlen Specter, the top-ranking Republican committee member.

[edit on 16-7-2007 by MidnightDStroyer]

Originally posted by MidnightDStroyer
Getting scared is natural in human beings...We've been getting scared as far back as the earliest ancestors of the human race when faced with dangerous situations.

The trick is not to let your fear goad you into a useless or even more dangerous action...Blind fear doesn't help; Focused & directed is the only postitive way to deal with fear.

In case you didn't notice all the smiley faces and all, I was joking. Well, mostly joking. I'm not that scared about Hilary; I'm mostly just mildly concerned. No, really!

Can you tell that I'm kidding, again?

As scary as some of this tuff is, Iam glad to see somebody who can laugh about it. Good on ya.

I have answered some of the questions that were raised in my last podcast concerning the possible conspiracy to keep Bush in office after the 2008 elections; all of my answers and thoughts are included in my latest podcast that you can listen to here:

Lightcast Episode 3

Hope you all can tune in and give me your feedback and comments.
Thanks,

LS

I'll make some popcorn and get right to that.

Originally posted by Justin Oldham
I'll make some popcorn and get right to that.

So?... What did you think? I haven't gotten any feedback this time, so I am not able to judge whether there are any changes I need to make for next time.

Don't worry about the feedback. My experience with things LIKE this indicates that no news is mostly good news. You'll know that people are looking at your stuff as your point totals climb. My input? As you do more, you're getting better. Practice makes perfect, as they say. I can tell that your confidence improves with each podcast. Just keep it up. Also, remember that a lOT of people are away from ATS on vacation right now. Don't let that throw you.