Meteor Blades wrote:
Impeachment is the right remedy right now. But transforming it from blog-shriek into reality – if that can be done – will require a fresh approach.
My approach has some fresh footprints to fill with life and energy some existing Congressional oversight powers that have been gathering dust in the closet even though they have the Supreme Court stamp of approval and have been very effective against uncooperative executive branch officials in the past. It is a bold and dramatic approach tailored to counter Bush’s obstructionist MO and false bravado. Bush now has a pattern of obstructing justice by refusing to permit witnesses to testify or provide evidence in oversight hearings while he waves his sword of executive privilege. But, Bush’s sword is nothing more than pretentious swaggering to scare Congress from exercising its powers or litigating.
It’s time for Congress to use its powers in a 3-step plan to get the evidence we need to convince the public and lawmakers that “Impeachment is the right remedy right now.”
Step 1: Congress commences a “criminal proceeding” to investigate allegations of criminal obstruction of justice by Bush and his minions.
Congress has clear authority — supported by Supreme Court decisions and historical legislative precedent — to use its investigative powers to probe whether the executive branch has committed criminal conduct, such as obstruction of justice. This criminal investigation would be based on the WH pattern to interfere with Congressional subpoena powers by instructing witnesses not to testify or submit documents in regular or non-criminal oversight hearings, whether it be the use of the private email system provided by the GOP, the US Attorney probe, illegal domestic NSA spying, etc. It would also investigate whether Bush was obstructing justice by invoking executive privilege in a manner not authorized by law.
The Supreme Court has recognized that this proceeding does not invade executive or judicial functions, such as criminal trials, because the purpose of this investigation would be to determine if the Executive Branch has obstructed justice, and, if so, whether legislation could remedy or prevent abuse of powers that impede Congressional oversight.
1. Authority for Congressional Investigative Powers
It is pretty well-settled that Congress has implied constitutional powers to investigate the executive branch and exercise compulsory process to enforce these investigative powers. The implied investigative power is a necessary implication or inherent component of the constitutional legislative function to enable Congress to obtain the facts and information it needs in order to perform its legislative duties. Moreover, the investigative power is necessary to prevent “the danger to effective and honest conduct of the Government if the legislature’s power to probe corruption in the executive branch were unduly hampered.”
2. Power to Investigate Potential Crimes or Unlawful Acts
According to the Congressional Oversight Manual (2007) (pdf file), oversight authority of the executive branch includes the right to conduct specialized investigations into “suspected illegal conduct”, “alleged abuses of authority” and “unethical conduct” as shown by cases of historical precedent:
Oversight at times occurs through specialized, temporary investigations of a specific event or development. These are often dramatic, high profile endeavors, focusing on scandals, alleged abuses of authority, suspected illegal conduct, or other unethical behavior. The stakes are high, possibly even leading to the end of individual careers of high ranking executive officials. Indeed, congressional investigations can induce resignations, firings, and impeachment proceedings and question major policy actions of the executive, as with these notable occasions: the Senate Watergate Committee investigation into the Nixon Administration in the early 1970s; the Church and Pike select committees’ inquiries in the mid-1970s into intelligence agency abuses; the 1981 select committee inquiry into the ABSCAM scandal; the 1987 Iran-contra investigation during the Reagan Administration; the multiple investigations of scandals and alleged misconduct during the Clinton Administration; and the Hurricane Katrina probe in 2005 during the Bush
Administration.
The Supreme Court has affirmed Congressional power to investigate possible criminal or unlawful conduct of executive branch officials. In McGrain v. Daugherty (1927), the Senate investigated misfeasance and nonfeasance in the AG’s office in order to determine effective legislative measures that “might be taken to remedy or eliminate the evil.” The concerns about misconduct were brought to the attention of the Senate by individual Senators. The Senate authorized a select committee of 5 Senators to investigate the facts and circumstances, including whether the AG had failed to properly arrest and prosecute violators of federal statutes.
When Congress uses its investigative powers to probe potential criminal conduct by executive branch officials, the process may qualify as a “criminal proceeding,” but it does not constitute a trial that would be beyond Congressional jurisdiction. Congress would issue subpoenas to compel uncooperative witnesses to testify and produce documents. This testimony may reveal crimes or wrongdoings by the executive branch officials. And, if witnesses do not cooperate, then Congress may use contempt powers to arrest the person and bring the person before the bar to hold a “mini-trial” on contempt and send the guilty to jail. On these facts, McGrain v. Daugherty rejected argument that the proceeding constituted a trial beyond Congressional purview. All of this may be accomplished without the need for any enforcement assistance by the executive branch. After the congressional Sergeant-At-Arms arrested Rove, for example, Rove could file a writ of habeas corpus (ironic, yes) to object, but the Supreme Court precedent supports this process and these powers as necessary for Congress to perform its constitutional duties.
3. Scope of Legislative Investigative Powers
Congress simply needs to state in its resolution authorizing the investigation that it is at least considering potential legislation to address or remedy the obstruction of justice by executive branch officials in the various oversight hearings conducted thus far.
The US Supreme Court characterizes the breadth of this power of inquiry as “broad” and “as penetrating and far reaching as the potential power to enact and appropriate under the Constitution.” Congress has the power to investigate when the issue concerns the “administration of existing laws” or “proposed or possibly needed statutes.”
Even the “potential” for legislation is sufficient to trigger oversight investigative powers. This is because Congress needs the power to “obtain facts pertinent to the enactment of new statutes or the administration of existing laws.”
Congress does not now need to know how to fix the problem of the Bush gang obstructing justice or if legislation can even remedy the problem. A valid congressional investigation does not have to produce some “predictable end result” because the very nature of investigation is the need to obtain information or evidence that is not known by Congress. Obviously, if Congress had the information or evidence, it would not need to inquire and could move straight to legislative actions.
Bush may attack the process, but is not likely to find much comfort from the courts. The “wisdom” of congressional “approach or methodology is not open to judicial veto“:
The wisdom of congressional approach or methodology is not open to judicial veto. … Nor is the legitimacy of a congressional inquiry to be defined by what it produces. The very nature of the investigative function – like any research – is that it takes the searchers up some “blind alleys” and into nonproductive enterprises. To be a valid legislative inquiry there need be no predictable end result.
Step 2: Congress Can Frog-March Rove for a Trial on Contempt and Send Him to Jail.
Congress may use its inherent contempt powers to take custody of witnesses who fail to comply with subpoenas and bring the person to the bar of the chamber for a “mini-trial.” There are several advantages with this process. One, Congressional staff can arrest the person so no reliance on Bush’s gang to execute warrants. Two, executive privilege may not shield Bush when Congress is exercising its power to investigate potential criminal conduct. Three, these contempt trials may result in production of the needed evidence or convince the public that impeachment is the only option left. Then, Congress can commence impeachment proceedings with the public’s blessing. And, four, if this process is used just once, it is likely to have a deterrent effect on other executive branch officials who may now decide not to follow Bush’s instructions to remain silent given that it is they who will face the public humiliation of the “mini-trial” and jail time.
1. Congressional inherent contempt powers have the Supreme Court stamp of approval.
Bush keeps flipping the bird to Congress, which responds by trying to bend over backwards with more concessions. The Supreme Court has recognized that Congressional contempt powers are an important tool to prevent Congress from being “exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it.” Congress does not need to be rendered feckless by Bush. It just needs to stand up and use the powers that the constitution provides to prevent Congress from being trampled by the executive branch.
The US Supreme Court has recognized in at least two cases that inherent contempt power is a necessary power to enforce congressional investigative powers. In inherent contempt proceedings, the House or Senate Sergeant-At-Arms arrests the contemnor and brings him/her before the House or Senate, where there is a trial and the person can be imprisoned until he/she agrees to comply but not beyond the adjournment of a session of the Congress. Congress used inherent contempt powers over 85 times during 1795-1934. This power has not been used (pdf file) by either chamber in over 70 years because it was considered “too cumbersome and time consuming to hold contempt trials at the bar of the offended chamber” and the process was deemed ineffective “because punishment can not extend beyond Congress’s adjournment date.”
However, inherent contempt trials is exactly what the Democrats need to conduct in order to publicly reveal the witnesses who refuse to testify and why, and the evidence that is being withheld from Congress. Will any TV channel not be covering these trials? It is one thing to read a newspaper article that Rove refuses to testify under oath before Congress. How about the public reaction to the Sergeant-At-Arms hauling Rove before the bar for a trial on why he does not comply with subpoenas? If found guilty, then Congress can send Rove to jail. If Congress can just muster the courage to bring one key uncooperative witness before its bar on trial, it will enhance its ability to obtain compliance from the WH with other witnesses and evidence. If not, move on to key witness No. 2. Even if the WH refuses to comply, it is real people, not Bush or Cheney, who will have to face the music. Some of these witnesses may be less likely to follow Bush’s instructions when they see that they can be arrested, hauled into trial and imprisoned.
The Supreme Court has affirmed Congressional power to frog-march witnesses before the bar of Congress. In McGrain v. Daugherty, a recusant witness (the AG’s brother) refused to comply with issued subpoenas. The Senate issued a warrant authorizing its sergeant at arms to take custody of the witness and bring him before the bar of the Senate to answer questions. The deputy sergeant at arms went to Cincinnati, Ohio to pick up the uncooperative witness to place him in custody. The witness objected by filing habeas corpus, but the Supreme Court upheld Congressional legal authority to use its own process to compel persons to appear and testify on issues needed to enable Congress to exercise its Constitutional legislative function.
Another case provides a glimpse into the trial. Congress used its inherent contempt power against the Postmaster-General, who also filed habeas corpus to overturn his arrest, but the Supreme Court held that Congress had acted constitutionally and denied the petition in Jurney v. MacCracken (1945). The Senate held a one-week trial presided over by the Vice President, who acted as Senate President, and he was found guilty and sentenced to 10 days imprisonment.
Jurney v. MacCracken is also instructive for those Bush officials who would like to destroy incriminating evidence. In this case, MacCracken was arrested and brought to the Senate bar to explain why he should not be punished for contempt for the destruction and removal of files after being served with a subpoena. The sole issue was whether the Senate had power to arrest and punish him for destroying evidence or permitting others to review and remove or destroy files. Essentially he argued that since he destroyed the materials, Congress could not punish him for a past contempt, which the Supreme Court rejected.
Jurney v. MacCracken also shows how witnesses may react to Congress flexing its constitutional muscles. After testifying one day before the Senate, and realizing the gravity of the situation, the post office sent inspectors to one man’s office to search the “sacks of waste papers” to collect the destroyed papers by pasting torn up pieces of paper together.
2. Statutory criminal contempt powers caused even President Reagan to back off after losing in court.
Congressional use of its statutory criminal contempt power may appear more problematic because Bush/Cheney will threaten to litigate, but they may not have a good case. This statute provides precedent for the use of congressional contempt powers against executive branch officials. Congress enacted statutory contempt powers in 1857 as an alternative to inherent contempt to remedy the problem of length of punishment. A person who fails to testify or produce documents is guilty of a misdemeanor, punishable by a fine up to $100,000 and imprisonment for up to one year. In this process, a contempt citation is approved by Congress and then the US Attorney has a mandatory “duty” to “bring the matter before the grand jury for its action.” (2 U.S.C. §§192 and 194)
The Congressional Oversight Manual (2007) suggests that Congress should not use this statutory contempt power because the question of whether the US Attorney must enforce contempt is “unresolved” and thus there is “uncertainty” about its “efficacy” against executive branch officials. The facts indicate otherwise:
First, the statute directs that the US Attorney “shall” enforce the contempt by bringing the congressional contempt case to the grand jury.
Second, since 1935, it has been the exclusive means to punish contempt due to the longer jail terms. However, the goal of any contempt proceeding is really for Congress to stand up against Bush, assert its constitutional powers to get the evidence and deter future obstructions. Jail time is just an added bonus.
Prior to Watergate, no executive branch official had been the target of contempt proceedings. Since 1975, 10 cabinet level or senior executive officials have been cited for contempt. Perhaps some of these names will ring a bell:
Secretary of State Henry Kissinger (1975); Secretary of Commerce Rogers C. B. Morton (1975); Secretary of Health, Education, and Welfare Joseph A Califano, Jr. (1978); Secretary of Energy Charles Duncan (1980); Secretary of Energy James B. Edwards (1981); Secretary of the Interior James Watt (1982); EPA Administrator Anne Gorsuch Burford (1983); Attorney General William French Smith (1983); White House Counsel John M. Quinn (1996); and Attorney General Janet Reno (1998).
Third, in each case, there was substantial or full compliance with the documents demanded by Congress before the initiation of criminal proceedings. Thus, in the past, the executive branch blinked after Congress initiated the process. Bush may not blink, but it may not matter.
Fourth, in one case, the US Attorney refused to pursue grand jury proceedings and filed litigation. The upshot is that President Reagan turned over the documents after Congress won the case in court.
This is the case (pdf file) of EPA Administrator (pdf file) Anne Gorsuch Burford. When the House oversight committee requested documents on EPA’s enforcement of the Superfund program, the EPA did not object provided that the information in the files remained confidential. When other committees requested similar documents, the Reagan administration reversed its position, stating that documents in active litigation cases could not be turned over to Congress.
Under instruction by President Reagan, EPA Administrator Ann Gorsuch refused to turn over to Congress “sensitive documents found in open law enforcement files.” Based on the administration’s logic that documents provided to Congress may be leaked or otherwise become public, “oversight would have to be put on hold for years until the government completed its enforcement actions.” Thus, the president’s refusal to provide documents to Congress would have stalled Congressional performance of its constitutional duties for years.
Congress did not react well to having its work obstructed for years, so Gorsuch was cited for statutory contempt and the case referred to the Justice Dept. for grand jury action. The Justice Dept. refused and filed an action in district court to “declare the House action an unconstitutional intrusion into the President’s authority to withhold information from Congress.” The Justice Dept. argued in court that congressional contempt was an “unwarranted burden on executive privilege” and an “interference with the executive’s ability to carry out the laws.” The court followed House counsel’s argument that the court should not intervene but dismiss the case, reasoning that judicial intervention in executive-legislative disputes “should be delayed until all possibilities for settlement have been exhausted.”
In the end, the WH blinked. The Justice Dept. did not appeal, and then the administration provided documents to the committees in stages, first briefings and redacted copies and then later unredacted documents.
This case is another warning for Bush officials who follow his instructions to not comply with congressional requests for testimony or documents because it is they who face jail time or forced resignations. Another EPA official, Rita M. Lavelle, was indicted for contempt of Congress (pdf file) after the House committee and the House voted to approve. Ms. Lavelle was sentenced to 6 months in prison, 5 years probation and a $10,000 fine. Twenty top EPA officials, including Anne Burford, resigned from the EPA “amid allegations of perjury, conflict of interest, and political manipulation of the agency.”
If this process is used, it is pretty clear that Bush would argue that the statute is unconstitutional because no one can order his executive branch to do anything. However, one court to address the issue sent the dispute back to negotiation between the parties. If the Democrats want to avoid litigation, there are Supreme Court decisions which have reaffirmed Congressional inherent contempt powers. However, how much benefit have the Democrats obtained from this continual avoidance of litigation on any issue where there is a dispute with the WH?
Step 3: Democrats Need To Stop running away from executive privilege claims and litigate if needed.
1. Executive Privilege is not a Slam Dunk Shield to Refuse Testimony or Evidence in a Congressional “Criminal Proceeding” or Contempt “Mini-Trials.”
George Washington University law professor Jonathan Turley suggested that Congress may avoid the executive privilege scam by claiming that it is “investigating a potential crime.” This is one reason why a congressional “criminal proceeding” to probe obstruction of justice and inherent contempt powers are attractive.
A review of some of the case law on executive privilege shows that Bush does not have a slam dunk right to assert executive privilege when Congress is exercising its constitutional right of investigative powers in a criminal context. Moreover, Bush is likely claiming his own theory of executive privilege, which is based upon his view of unitary executive prerogatives for which no specific legal authority is or can be cited.
Here are some of the factors considered by the Supreme Court when balancing who wins on executive privilege claims, the President or Congress, and the scales may tip toward Congress:
Factor of criminal context favors Congress. The starting point of analysis for the courts is the “nature of the proceeding for which the evidence is sought.” When the issue is evidence needed for a criminal proceeding, such as a criminal case or enforcement of criminal statutes, US v. Nixon (1974) states that a president’s generalized need for confidentiality must yield to the other branch of government.
Similarly, under this plan, Congress would be involved in a “criminal proceeding” by invoking its constitutional powers to investigate alleged criminal obstruction of justice by the executive branch.
Factor of impact of executive privilege impairing constitutional duties of coordinate branch of government favors Congress. The court balances the president’s generalized confidentiality need against the impact of withholding evidence from the other branch of government. The Court is less likely to rule in favor of Bush if the failure to provide evidence to Congress would “plainly conflict” or impede the ability of Congress to perform a “primary constitutional duty.” The Court opposes the use of a generalized privilege to “upset the constitutional balance of ‘a workable government’ and gravely impair” the role of the coordinate branch under our Constitution.
Under this plan, the WH would be investigated for obstruction of justice based upon its refusal to cooperate with congressional oversight functions on a number of issues. Congressional functions have already been impaired. The big difference is now Congress would be conducting a “criminal proceeding” for which executive privilege loses status as compared to regular oversight proceedings.
The importance of not impairing constitutional duties of other branches of government by invocation of executive privilege is illustrated by Nixon v. Administrator of General Services (1977), which involved a dispute within the executive branch rather than with Congress. In this case, Nixon tried to prevent government archivists from screening his documents to determine which should be placed in archives and which constituted private documents to be given to Nixon. One factor which tipped the scales for the Supreme Court against Nixon was that preservation of his materials in the government archives would “aid the legislative process” and thus was “within the scope of Congress’ broad investigative power” as well as the potential that the material may “shed light upon issues in civil or criminal litigation.”
A lower federal court held that Congressional investigative powers would lose to executive privilege when the evidence requested is “merely cumulative,” which is not an issue for obstruction of justice investigation because Bush has refused to cooperate thus far. In Senate Select Committee on Presidential Campaign Activities v. Nixon (1974), the federal court ruled in favor of a presidential claim of privilege over Congressional need for tape recordings of conversations between Nixon and his staff for purposes of oversight and potential new legislation. In congressional investigations, Congress must justify a demand for material protected by executive privilege by showing that the desired information is “demonstrably critical to the responsible fulfillment of the Committee’s functions.” Congress could not satisfy this standard because the need for the tapes was “merely cumulative” as the House Judiciary Committee had commenced impeachment proceedings against Nixon and had copies of the tapes subpoenaed by the Senate Committee.
Factor of generalized assertion favors Congress. The executive privilege is not absolute when Bush is invoking a generalized need for confidentiality in order to obtain “complete candor and objectivity from advisers” rather than a more specific need to “protect military, diplomatic, or sensitive national security secrets.” Most times Bush claims this generalized need for candor.
Factor of custom and usage favors Congress. Precedent also weighs in favor of compelling testimony from senior White House officials (pdf file):
May Congress compel public, sworn, transcribed testimony of White House officials? The president is on weak grounds in resisting all public or transcribed testimony. Forty-seven times during the Clinton presidency, senior White House officials testified in public about matters relevant to an investigation.
Factor of Bush’s theory not based on law favors Congress. Another factor in Congressional favor is Bush’s intent, as provided by his signing statements. Bush and the Office of Legal Counsel in the Justice Dept. interpret the power of presidential prerogatives very broadly (pdf file), without citing judicial cases to support their views. If this theory were applied to document requests from Congress, then even more documents would be withheld by Bush than prior presidents.
Bush may be invoking executive privilege in situations not even supported by the existing case law but based upon his view of presidential prerogatives. As stated in the Congressional Oversight Manual:
“The current Bush Administration, through presidential signing statements and opinions of the Department of Justice’s Office of Legal Counsel (OLC), has articulated a legal view of the breadth and reach of presidential constitutional prerogatives that, if applied to information and documents often sought by congressional committees, would stymie such inquiries. In OLC’s view, under the precepts of executive privilege and the unitary executive, Congress may not bypass the procedures the President establishes to authorize disclosure to Congress of classified, privileged, or even non-privileged information by vesting lower-level officers or employees with a right to disclose such information without presidential authorization…. The OLC assertions of these broad notions of presidential prerogatives are unaccompanied by any authoritative judicial citations and, as indicated in the above discussion, recent appellate court rulings cast considerable doubt on the broad claims of privilege posited by OLC.”
Generally, disputes between the President and Congress over executive privilege have been resolved by negotiation. However, Bush does not negotiate. Should Congress conduct a criminal proceeding and run into obstacles by Bush, the Democrats may simply follow another Nixon precedent. After Nixon refused to comply with congressional subpoenas, the House Judiciary Committee did not seek enforcement by the courts, but simply “adopted as one of its Articles of Impeachment the refusal of the President to honor its subpoenas.”