First-hand observations

I had an opportunity to listen to John McKay discuss his feelings and beliefs about the 2006 Attorney General scandal, the same issue Harriet Miers and Joshua Bolton were recently cited for contempt of Congress for failing to testify about, and which Congress is now taking the Administration to court over for it's refusal to press the contempt charges.

Given the amount of time which has passed, I'd prefer Congress should just send the the Sergeant-at-Arms to arrest Ms. Miers under the inherent contempt statute, but that's a different matter.

Back to McKay. What makes his thoughts on the subject particularly compelling to me, in addition to the fact he was one of the Attorney General's directly affected by the mess, is his background. His family among the prominent Republican families where he lives, and had had, prior to being named Attorney General, been actively involved within the Republican party. Whatever else he might be accused of, he can't be accused of party-based bias.

As McKay noted, though, upon being named Attorney General he tried to lay the pasty aside and follow the law rather than a party agenda ... an approach anathema to this administration.

He said when the events first occurred he didn't have much of a strong opinion, but as time has passed and more information has come out, he is now strongly of the opinion at least some of the firings were clearly politically motivated. In particular, he cited David Iglesias of New Mexico (who refused to pursue an alleged voter-fraud case), Carol Lam of Southern California (who was actively pursuing several high profile cases against Republicans in the area, and Todd Graves of Missouri (another failure to pursue voter fraud).

McKay noted he felt the Graves case was especially egregious, given his successor rushed to bring the voter fraud charges up shortly before the election that November. Five months after the election, in April 2007, the case was summarily thrown out of court, something McKay noted is extremely rare, and which points to the weakness of the claim.

McKay was asked about his own firing, and did feel his case was similar to that of Iglesias and Graves. In the 2004 elections Democrat Christine Gregoire defeated Republican Dino Rossi in the Washington Governor's race by a mere 129 votes after a recount which initially saw Rossi as winning (the two are scheduled for a rematch this fall). He talked about the pressure he received to bring voter-fraud charges to court over the race, but said on looking at the evidence there just wasn't anything there. He didn't feel, however, there was the level of evidence in his case that the matter was key to his firing as there is for the Iglesias and Graves removals.

All-in-all an interesting discussion. While he never came out and said as much, McKay's tone on several questions definitely implied disgust with the Bush administration and the whole sordid tale. The investigation has been stalled long enough, and if it takes marching Miers in under armed guard to get her to testify, well, it's time to do it.

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.

The beat goes on ...

Attorney General Alberto Gonzales is testifying before Congress again. One wonders why. He continues to apparently have no knowledge whatsoever about how his office works. When asked outright how many attorneys he had fired he claimed not to know. He doesn't know, his aides all don't know, no one knows.

Apparently, some magical list * poofed * into existence on his desk with a series of names of people to be fired, and Gonzales simply signed the list without questioning it ... because, you know, it's not like attorneys to be skeptical or ask questions of anything. One assumes the mystical appearance of the list suddenly appearing in front of him convinced him of it's divine provenance, or something like that. Who was he to question God (or President Bush -- apparently members of the current administration often conflate the two).

Gonzales claimed he hadn't made the now infamous hospital-room trip to visit John Ashcroft in order to get Ashcroft to overturn his deputy's decision vis-a-vis the warrentless surveillance program not having sufficient legal authority. Shortly after, he was forced to admit he did take a reauthorization order with him on his little foray. What, he just took that along as some bed time reading? That's a close an admission of lying to Congress as one is likely to get.

Senator Patrick Leahy has flat out told Gonzales "I don't trust you." Other Senators have followed in the same vein. Senator Herb Kohl asked why Gonzales should be kept on, which Gonzales admitted "That's a very good question, Senator", before going on to give a not very good response.

Same game, second round. Gonzales knows nothing, hears nothing, does nothing, yet somehow expects people to have confidence in his ability to repair the credibility and morale issues within the department. Why not? It's the same tack the administration is taking on Iraq: "Sure, we've botched everything horribly, we lied about our motivations for invading in the first place, we've repeatedly been completely wrong on our predictions for how things would work out, but trust us - this time we really are on the road to stability there." A decade from now, these folks would still be asking for "six more months", and blaming "defeatist liberal attitudes" for the ongoing lack of progress.

The House judiciary committee will move forward with pressing contempt charges against Harriett Miers and Joshua Bolton tomorrow. It's a complete waste of time -- the word is already out on the street any statutory contempt case won't be prosecuted by the US Attorney's office. That's the same US Attorney's office presided over by the oh-so-incompetent Alberto Gonzales. If there is one thing we can trust him on, it's that the office certainly won't do anything to support a Congressional investigation into possible wrong-doings within ... well ... within itself. Still, I guess formalities must be preserved. I don't believe there has been an inherent contempt case tried within Congress since the 1930's, I am looking forward to witnessing a small piece of history.

While Gonzales and the administration are doing their best to be obstructionist, Republicans in Congress don't want to get left out of the fun. Remember all those complaints they had about Democratic filibusters? Remember the nuclear option? Apparently they feel no need to lead by example. McClatchy Newspapers had an article last week highlighting just how out-of-hand things have become.

While the number of filibusters has definitely been on a general upward rise, the current group of Republicans is on pace shatter the old record of 58 in a two-year session. With 42 cloture votes so far (that's nearly 1/6 of all Senate votes, according to the article, if the pace were maintained it would lead to 153 over the course of the term.

Of course, that isn't enough ... when legislation does get passed, such as an ethics bill which garnered a 97-2 majority, things get held up ... either it's our own Senator Jon Kyl placing a secret hold, or it's delays in naming members to a committee negotiating differences with the House. It's the best of all worlds! All those Republican Senators can claim they voted for the ethics bill without, you know, actually having to take a chance on those tighter standards actually being applied.

It's just part of the "game" now. Filibuster everything, hold stuff that you don't think can be safely filibustered, and then claim Democrats aren't getting anything done. Meanwhile, smile and discuss the need for "more bipartisanship".

Just another day in D.C.

Inherently Contemptible

Former White House Counsel Hariet Miers has once again refused to appear before the House Judiciary committee in response to a subpoena requiring her testimony regarding what she knew of the US Attorney firings. Miers, through her lawyer, indicated she was refusing because President Bush had exerted Executive Privilege and ordered her not to appear.

While this privilege has a clear purpose and precedent, it has in the past been applied to documents from the Executive branch, and potential testimony from those currently working within the Executive branch. Even then, it's not absolute -- Nixon was forced to hand over tapes, and Clinton aides were forced to testify regarding the Lewinsky scandal, both times overriding privilege claims.

This makes Miers' refusal to appear on claims of Executive Privilege grounds apparently unprecedented for at least two reasons (warning, I am most certainly not a lawyer, nor do I play one on TV):

1. Miers is a private individual, she is no longer part of the Executive Branch. As such, on what basis would any claim of Executive Privilege extend to her person?

2. To assert a refusal to testify, one has to actually appear. Using a claim of privilege as a defense against appearing at all is a new wrinkle.

Miers could have taken the approach another former Deputy Assistant to the president Sara Taylor did and appeared before the committee but refuse to answer certain questions by asserting the administration's privilege claims. These claims are debatable, but at least it shows some respect for Congress and the process.

Miers, however, has chosen to not show up at all. She has shown no respect for Congress. Congress should respond in the same vein.

Committee Chairman John Conyers is quoted by Fox news as saying "Her failure to comply with our subpoena is a serious affront to this committee and our constitutional system of checks and balances. We are carefully planning our next steps."

Those steps could include hearings on contempt charges both within the committee and the full House. If the House votes to press charges (likely, in my opinion -- even Republicans will not like seeing a precedent set where private individuals can refuse subpoena's issued by Congress), it would fall upon the District Attorney for the District of Colombia to prosecute .... or not. The DA in question, Jeff Taylor, is a Bush appointee, and there is precedent for a DA refusing to prosecute a Contempt of Congress charge.

So skip the preliminaries and move straight to Inherent Contempt proceedings. Enough pussyfooting around. Congressional satisfaction numbers are historically low largely because people feel Congress is not doing enough to rein in the Bush administration. This applies largely to Iraq, but extends to other issues as well.

Let's get the show on the road. Get the Sergeant-at-arms on the next plane to Texas and haul her back in front of the House, kicking and screaming if needed.