An overdue fight

The US House of Representatives has finally decided to assert itself and push back on the ever-increasing reputed powers this administration has claimed it possesses. A couple days ago, the Judiciary committee filed a lawsuit in federal court to force former White House aides Harriet Miers and Joshua Bolton to testify before Congress on what they knew (or didn't know) concerning the Attorney General firing scandal.

The Bush administration has been blocking their testimony, claiming Executive privilege allowed him to do so, despite the fact neither is any longer a part of the administration, nor are the matters in question ones where such privilege has traditionally been considered to apply. The House originally asked for their testimony last summer, but it wasn't until last month they finally got around to pressing contempt charges - charges which U.S. Attorney Michael Mukasey promptly declared would not be pressed by his office, which would be responsible for prosecuting the case.

So Congress has taken the only option short of impeachment, and taken the case to court.

The response from the White House was predictable, with spokeswoman Dana Perino referring to it as "partisan theater" ... and maybe she's right, insofar as the matter Miers and Bolton have been asked to testify about is concerned. On the larger issue, however, she's not just wrong, she's so far off base she's not even wrong.

The real, important issue here is the ruthless expansion of spying and secrecy powers Bush, Cheney et. al. have promoted for seven years now, nearly unchallenged up to this point ... and there is nothing partisan about that agenda. Should a Democrat win election this year, or some time in the future, Republicans in the House will have (and should have) the same right to expect co-operation in it's investigative and oversight role that this Congress is finally trying to enforce.

It's worth noting that a little over a decade ago, Bill Clinton became the first President to assert Executive privilege and have that claim overturned in court, over l'affaire Lewinsky. Hopefully Bush will become the second.

Dead-end game

After months of inaction, the House Judiciary Committee yesterday forwarded Contempt of Congress charges against former White House aides Joshua Bolton and Harriet Miers to the full House of representatives.

Considering the original subpoenas Bolton and Miers refused to comply with were issued last summer, and the committee voted to find both in contempt on July 25, it can hardly be said matters have been rushing to a head. Still, I guess it took a while to scribe the 862-page document forwarded to the full House describing why the committee feels the two need to be charged.

Bolton and Miers each cited Executive Privilege in refusing to comply with the subpoenas. I am not a lawyer, but it does seem their case is very weak:

* The Supreme Court has found the privilege is "not absolute".
* Bill Clinton, as President, had his privilege claims overturned by the court and was forced to testify over a matter (the Lewinsky affair) which was of far less significance to the national well-being than concerns of politicization of the U.S. Attorney General's office.
* It would seem in order to assert such privilege one must, at a minimum, appear. Some questions asked may clearly not be covered by the privilege claim, in which case Bolton and Miers would be expected to answer.

I would certainly expect the full House to vote in favor of bringing contempt charges against both Bolton and Miers on a straight party-line vote ... at which point it would be the responsibility of the U.S. Attorney for the District of Colombia to prosecute the case. Hmmmm ... a Bush-administration attorney responsible for prosecuting contempt charges against two former Bush aides in a matter concerning Bush's politicization of the AG department. Anyone want to guess the odds of the case actually being prosecuted?

White House press secretary Dana Perino seemed insouciant in responding to reporter's questions on the matter yesterday afternoon, predicting "It won't go anywhere."

Of course it won't - she knows the fix is in.

Assuming this scenario plays out as expected, Dems should remember this in early 2009. If a Democrat wins the Presidency a year from now, the matter can always be revisited then - and should be.

Accountable to none

I admit to feeling a bit prescient this morning. A couple days ago I noted even if the House Judiciary Committee pressed well-earned contempt charges against Harriet Miers it was unlikely the U.S. District Attorney would actually prosecute the matter. Really, though, it didn't take much divining to see that state of affairs ... and the reality is beyond even what I expected.

The Washington Post has an article (free registration required) this morning in which an anonymous source says the administration is asserting no Justice Department official would ever prosecute a contempt case in an affair in which the administration had previously asserted Executive Privilege. Think about some of the implications of that ... go ahead ... I'll wait.

Here's one possibility ... way back in the Nixon administration, Mr. "I am not a crook!" asserted Executive Privilege in an attempt to not hand over the Watergate tapes. The court ruled against him, the tapes were handed over, and shortly after Nixon resigned.

Now, those issues did not revolve around contempt charges, but it would have been easy to make them do so. Let's hypothesize Nixon continued to refuse to hand over the tapes. He is found in contempt of both Congress and the courts. Now he says no US DA will prosecute the contempt charges. Essentially, he might have been able to create a shield of immunity about himself, no matter how illegal his actions might have been.

Whether the administration was within in rights or not regarding firing of the attorneys last year (for what it's worth, it's my opinion the firings were legal, but unethical), it's undeniable by any but the most die-hard supporter of the unitary executive theory that it has engaged in illegal activities involving wiretapping of US citizens.

Extend the logic a little, and it applies to anything. The administration or any of it's personnel could engage in any illegal activity. Congress (or any body) initiates an investigation and issues subpoenas for documents or for individuals to testify in person. The administration refuses to hand over requested documents and orders individuals not to testify, citing Executive Privilege ... oh, and by the way, don't bother filing contempt charges, because the US prosecutors are not gonna prosecute those charges.

I'm pretty sure when our founding fathers (whom die-hard conservatives so often like to cite, usually inappropriately) set up a system of government based on checks and balances, this wasn't what they had in mind. Unfortunately, the system does not work when one of the branches refuses to acknowledge it's rights and powers can be either checked or balanced by the other two.

I guess it makes some decisions easier. Since there is clearly no point in pursuing any statutory contempt case against Miers Congress might as well call the President's raise, skip any of those procedural steps and move straight to inherent contempt charges. I suggest taking time out of the traditional summer recess for this. That should get our Congressional representatives in the proper frame of mind.

Obstinance or Criminality?

All the way back in April, three long months ago, the House judiciary committee requested (but did not issue subpoenas for) copies of emails from administration officials that had been sent from (or to) email accounts maintained by the Republican National Committee.

A couple days ago, administration counsel Emmet Flood informed the RNC and Congress it was the position of the White House those emails were covered under the President's recently invoked "Executive Privilege" order. The RNC followed shortly after by indicating it would abide with the administrations desires, and not make the emails available.

Now, subpoenas have not yet been issued but they have been approved, meaning they could be issued at anytime, including today. If so, it will be an additional log on the fire which is beginning to flame between Congress and the White House over how far Executive Privilege actually reaches.

I can't see any reasonable interpretation in which the RNC emails can be protected. One of two scenarios must apply:

1. The emails in question do not involve official administration business. If so, then they can't possibly be protected under executive privilege guidelines.

2. The emails in question do involve official administration business, in which case the administration is in clear violation of the Presidential Records Act of 1978. If this is the case, the investigation becomes a criminal investigation, and precedent has established Executive Privilege does not apply in the face of criminal investigations (here and here). As an extra-special added bonus, the Act explicitly states it applies to the office of the Vice President too, no matter what branch of government it resides in for any given day of the week.

So the White House is either admitting to criminal behavior on its part or willfully obstructing a legal request (and one it knows is legal) for documents. There is no third option. Personally, I'm going with the latter choice -- even this administration, with it's noted propensity for grandiose claims leavened with a large dollop of stupidity isn't going to freely admit it's been violating the law.

Issue the subpoenas and ask for an expedited decision. Lets get the farce over with.

Update: Speaking of Republican obstructionism, Anonymous Liberal has an excellent post about a different (but related) form of it. ALs post references another excellent post on the matter, this one by Hilzoy.

Update: Earlier today (July 13), subpoenas were issued to the RNC for the requested information.