posted by Damozel |
In a world where people are more excited about the final volume of Harry Potter than the President's latest exploits, it's often hard to know what I should be blogging about. Shiny things distract me. (I read the whole Potter book yesterday.)
As Voldemort--or Yossarian's superiors--- would say, "We can do anything we want that you can't stop us from doing." So what about that whole "executive privilege!!!!!"/"stop-saying-that-or-we'll-hold-you-in-even-more-contempt" argument between Congress and the President, huh? Can I be truthful? I see it as simply one more strategic move in the game of "Constitutionopoly" that's already gone on way too long. I don't think it's the beginning of some sort of Executive Branch coup or anything. (How could that happen, anyway? The Army is in Iraq). It's just one more installment in the ongoing drama I call "Bush Walks Where Even Reagan Feared to Tread."
Hands down, Wonkette has my favorite related post: What Next For the Bush/Cheney Administration? Maybe Guillotines! But these others---responses from centrist/moderate bloggers and law blogs who can be relied on to work toward some sort of understanding of the issues---are good too:
At Swampland, Karen Tumulty discusses the Reagan Administration's attempt to make a similar argument back when "EPA Administrator Anne Gorsuch Burford was cited for contempt by the House, but before it got to court, Burford turned over documents. In fact, that is how these standoffs over executive privilege have generally turned out in the past--with a deal." (Contempt of Congress)
As she points out, neither side seems very interested in working out a deal this time around. Fight! Fight! Fight!
She's impressed---as who is not?---at the legal argument which (at first blush, though more on this later) appears to be straight out of Joseph Heller's Catch-22. Wikipedia describes a "catch 22" as "describing a paradox in a law, regulation or practice in which one is a victim regardless of the choice he makes. In probability theory, it refers a situation similar to Heads I win, tails you lose." Or, as Heller, expresses it: "Anything can be done to you that you can not prevent." Or, as I imagine the Administration phrases it, "We can do anything we want to that you can't prevent."
Tumulty says:
The argument has a Catch-22 quality: There's no way to challenge the President's assertion of executive privilege, because, well, the President has asserted executive privilege....
Where does that leave Congress? Barred from taking its case to court through the Justice Department, it may turn to its "inherent contempt" power to hold its own trials and even order officials to jail. The procedure was widely used in the 1800s, but hasn't been since 1934.
Here's an interesting wrinkle, though: This recounting of the last such trial, courtesy of Patrick Leahy, suggests that if it were undertaken by the Senate, it would be presided over by none other than ... Dick Cheney. (Contempt of Congress)
Yee-ha! Fight! Fight! Fight!
Meanwhile, at Donklephant, Sean Aqui takes a more reasoned view of this latest development than I do, while still fully appreciating its inherent offensiveness.
It’s deeply offensive on the face of it for the administration to essentially say “we control the prosecutors, and we won’t use them on ourselves.” It’s also deeply offensive to claim that the president and the president alone determines whether executive privilege applies, and that the judiciary had no authority to rule on such a decision. That is what Bush seemed to be saying.
But it appears that the administration’s opinion is strictly limited to contempt proceedings, and to a narrower part of such proceedings.... [A]ll they’re saying is that the Justice Department cannot be forced to undermine a valid presidential invocation of privilege... the key concept is that the Justice Department cannot be used to undermine a valid claim of executive privilege. But if the claim is rejected, it becomes invalid. And if the president still refuses to cooperate, presumably the Justice Department could be used to compel his cooperation. (Rethinking “Collision Course”)
Judging by the response of some bloggers, I think a lot of them missed this distinction.
Aqui's suggestion: "Bush should claim privilege, Congress should claim oversight, and let a court decide who wins." .(Rethinking “Collision Course”) As The Crux pointed out in her note on the same topic, there may be solid grounds for the president's confidence that he can win on this---as Aqui states---deeply offensive theory.
She thinks the President's resistance will "scar" Republicans in the eyes of the public. I doubt it. I don't think the relevant part of the public is following the argument sufficiently closely or that they understand the "checks and balances" issues.
On the other hand, it is likely to prove an irritant to Republicans if, for example, the next President is a Democrat against whom they wish to bring contempt proceedings on the same ground. I'm sure some of them were annoyed when Clinton's attorney made the same argument---as Aqui points out---in 1995.
But seriously, folks....how bad is the situation really? At Volokh, Eugene Volokh seems to agree with Sean Aqui that the sky is not, after all, falling in.
He asks: May Congress order the Justice Department to prosecute people who the Justice Department firmly believes are innocent? Volokh thinks the answer should be "no." "The Justice Department is apparently relying on the reasoning given in this Reagan Justice Department Office of Legal Counsel memo; and my sense is that the memo is generally quite correct." (Volokh; link in original) "My tentative view, then, is that when the Justice Department takes the view that a witness is properly claiming executive privilege, it should not prosecute the witness for contempt of Congress, and any attempts by Congress to force it into such a prosecution are unconstitutional. Congress retains tools to vindicate its interests. It's just that the tool of forcing the Justice Department to prosecute is not a permissible one." (Volokh)
To force Justice to prosecute would, he says, "a violation of the separation of powers, because it is placing in Congress's hands — rather than in the executive's — the quintessentially executive decision whether a federal prosecutor would prosecute someone in federal court. Even Morrison v. Olson, which upheld a special statute authorizing a special prosecutor who would be outside the President's authority, does not, it seems to me, go that far; among other things, it does not allow the legislature to mandate a prosecution."
On the other hand---COUNTERPOINT!---at Balkinization, Marty Lederman points out one of his postings from a couple of weeks ago dealing with Congress's power to enforce contempt citations against witnesses who assert executive privilege.
In almost every single historical case where a House of Congress has issued a contempt citation or threatened to do so, that has prompted the Executive branch to further "accommodate" the legislature by providing information sufficient to allow Congress to proceed with its investigation. (One possible exception, from the Nixon Administration, was Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974), in which the Administration successfully resisted a Senate subpoena.)
One might hope that the prospect of its officials being held in contempt would cause this Administration to do the same -- especially because the contempt is a crime punishable by up to a year in prison (see 2 U.S.C. 192), and because, as the Acting Attorney General has written, the court of appeals "has recognized that each branch has a 'constitutional mandate to seek optimal accommodation of each other's legitimate interests" (quoting U.S. v. AT&T, 567 F.2d at 127). But it would not surprise many observers if this Administration breaks the mold and refuses to further accommodate Congress -- particularly because it has already taken the view that Congress does not have any "legitimate interests" in determining why the President effectively dismissed the U.S. Attorneys. (What Would Happen if the Administration Continues to Defy the Subpoenas?)
In that post, Lederman lists---and discusses--- three possible responses for Congress and the ways in which they could backfire or prove impossible to implement. One of them was:
...the remedy that Senator Leahy invokes: The House or Senate that has voted for contempt can certify that fact to the United States Attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action." 2 U.S.C. 194.
The problem with this option is that the (Acting) Attorney General will almost certainly instruct the U.S. Attorney not to prosecute the action, notwithstanding the "duty" imposed by statute. How can the Attorney General issue such an order? Well, when a similar crisis arose in the mid-1980's (relating to contempt against EPA Administrator Anne Gorsuch), OLC issued an Opinion concluding that the statute is unconstitutional to the extent it requires a U.S. Attorney to prosecute a contempt action where the noncompliance is based on the President's assertion of executive privilege: In OLC's view, a U.S. Attorney thus "is not required to refer a contempt citation in these circumstances to a grand jury or otherwise to prosecute an Executive Branch official who is carrying out the President's [executive privilege] instruction." 8 Op. O.L.C. 101, 102.
This is a contestable conclusion. (There are many things about the 1984 OLC Opinion with which I disagree -- but whether the ultimate conclusion is correct is a tricky question.) Be that as it may, it's fairly certain that the Bush Administration will not repudiate it. Therefore, it is virtually inconceivable there will ever be any contempt prosecution brought by the U.S. Attorney. (The Administration would comply with the subpoenas long before it would authorize such prosecutions.) (What Would Happen if the Administration Continues to Defy the Subpoenas?)
As he noted on Friday, "It has come to pass." "This does not mean that the House or Senate, if they find a witness in contempt, will not refer the citation to the U.S. Attorney. But such a referral almost certainly will be futile, at least in the short run. Congress therefore would be left with the other enforcement options I outlined in my previous post." (Why the U.S. Attorney Will Not Prosecute Harriet Miers; emphasis added)
Congress still has remedies at its disposal, according to Volokh and Balkinization which it may pursue if it wishes. At which point things will become really bizarre. Look at it this way: At least we live in interesting times.
People with a yen to know more about the underlying theory will appreciate these comments [compounded for your convenience) to Lederman's post (by Bart DePalma):
The Unitary Executive theory contends that Congress may not compel one of the President's subordinates (i.e the US Attorney) to act contrary to the orders of the President.
The theory used to keep current and former advisors to the President from being hauled in front of Congress and compelled to testify concerning their non criminal advice is Executive Privilege, not the Unitary Executive theory. (comment)
Here, finally, is a very good example of the much misunderstood and misapplied concept of the unitary executive.
The Vesting Clause of Article II states "The executive Power shall be vested in a President of the United States of America" and the Take Care Clause states that ""The President shall take care that the laws be faithfully executed..."
In sum, Article II vests all executive power in the elected President including the most basic executive power of enforcement of laws. Consequently, proponents of the Unitary Executive theory would argue that Congress may not deputize a portion of the Executive, say a US Attorney, to act against the President in Constitutional separation of powers matters such as assertions of executive privilege.
Congress' remedy is to go to the judiciary and have it determine if Executive Privilege extends to these congressional demands for information. If the President disobeys a judicial order to disclose the information, then impeachment is the final remedy. In neither case does Congress have the power to deputize the President's subordinates to carry out the functions of the judiciary or Congress itself.
Now that the President has pulled the curtain on this next act of Dem political theater, we will now see if the Dem caucus in Congress have the courage of their convictions and bring their demands to the courts. I doubt it. (comment)
At Concurring Opinions, Frank Pasquale wonders whether we can look forward to another "Saturday Night Massacre." He also notes some interesting suggestions by Frank Askin in The Washington Post concerning responses open to Congress (Separation of Powers: Pushing the Envelope).
- See, e.g., The Washington Post, "Nixon Forces Firing of Cox; Richardson, Ruckelshaus Quit President Abolishes Prosecutor's Office; FBI Seals Records."
- See, e.g., Frank Askin, Congress's Power to Compel (The Washington Post)
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