A Constitutional Conundrum
News: The House Judiciary Committee has taken its contempt of Congress fight to civil court, setting the stage for a legal battle that could redefine executive and congressional power.
April 24, 2008
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Overshadowed by a heated presidential-election battle and daily news of a sinking economy, a lawsuit that could change the shape of governmental power is making its way through U.S. District Court in Washington, D.C. The suit challenges the Bush administration's attempt to flout contempt of Congress charges against one current and one former White House aide. Its outcome could limit the scope of presidential power by providing Congress the means to investigate the inner workings of the executive branch without having to rely on the Justice Department, which is part of the executive branch.
Attorney General Michael Mukasey recently blocked the Justice Department from prosecuting criminal contempt of Congress citations approved in February by the House of Representatives against White House chief of staff Josh Bolten and former White House counsel Harriet Miers. The two Bush aides, acting on White House orders, had refused to provide the House Judiciary Committee with testimony and documents regarding the firings of nine U.S. attorneys by the Justice Department under the watch of then-Attorney General Alberto Gonzales. In Early April, the committee filed a blogosphere, have grown frustrated with Democrats on Capitol Hill for not resurrecting a practice known as "inherent contempt"—an arcane authority that allows Congress to prosecute contempt internally and that could, in theory, result in the arrest and incarceration of both Miers and Bolten by the House sergeant at arms.
"There is something of a sense that it is not productive for Congress to use its inherent contempt power," explained Mark Agrast, a constitutional law expert and senior fellow at the Center for American Progress. "It's just too unwieldy and too untried to be used in the modern era."
In fact, in the motion currently before the district court, the Judiciary Committee dispensed with that option, contending that if it invoked its inherent power, the House would ultimately find itself arguing the contempt issue before the same court, but at a much later date.
The well-publicized, and apparently political, firings of nine federal prosecutors set off a firestorm of controversy in early 2007, prompting months-long investigations by both congressional bodies—investigations the White House has done its best to thwart. In June, when the House Judiciary Committee subpoenaed Bolten and Miers, the White House claimed a sweeping executive privilege and barred the two from complying. The House responded in kind, voting on February 14 to pursue criminal contempt charges against the aides—a move that White House spokesperson Dana Perino termed "a partisan, futile act", and one, she said, that the Justice Department would not enforce.
The administration was true to its word: Jeffrey Taylor, U.S. attorney for the District of Columbia, acted on the orders of the very White House that appointed him and refused to take up the case.
"This is a surprising obstruction of the process by [the administration]," said Jonathan Turley, an authority on constitutional criminal procedure and a law professor at George Washington University. "Many constitutional experts, including myself, have concluded that the Congress clearly has the better position. The White House has clearly overextended the scope of executive privilege."
The Judiciary Committee is seeking a fairly narrow ruling from Judge Bates—one that would compel Miers to attend hearings before the committee, and order both Miers and Bolten to divulge the nature (though perhaps not the contents) of a bundle of undisclosed documents over which the White House is claiming executive privilege. But the civil filing is a legal maneuver without precedent, and therein lies the possibility that the White House could prevail despite what experts view as a weak legal standing. Last year, however, as the contempt proceedings were just kicking off, the nonpartisan Congressional Research Service released a report that suggested a civil suit could move forward. "[T]here is a likelihood that a reviewing court will find no legal impediment to seeking civil enforcement of subpoenas or other committee orders," the CRS found.
"The problem with going to court is that you risk a negative precedent," explained Turley. And it's a risk for both sides. On one level, Bates could simply decide that Congress has no standing to pursue the enforcement of contempt citations in a civil court, setting a precedent that could close the civil court avenue to Congress permanently. But if he doesn't throw the case out altogether, and instead issues a ruling on the merits of the case, his decision will almost certainly be appealed to the Circuit Court for the District of Columbia by the losing side, a process that could take the case to the Supreme Court.
"If the court agrees [with Congress], I suspect the White House will file an appeal [based] on the calendar—not the issue," said Turley. "I doubt Mukasey and the DOJ believe they have a case, but [the administration will be] simply trying to run out the clock." Judge Bates has scheduled arguments to begin in the case on June 23.
If the case is not settled by the time this session of Congress ends in December, the defendants could plausibly contend that the subpoenas have expired and that the matter should be closed, or at least must be readdressed from the start when the new Congress is seated (and a new White House has been staffed) in January 2009. In that case, not only will that let the Bush administration largely off the hook; it will also leave the question of the legitimate scope of executive privilege unresolved.
(Photo of Capitol by flickr user dctourism used under a Creative Commons license.)
Brian Beutler is the Washington correspondent for the Media Consortium, a network of progressive media organizations, including Mother Jones.
I guess results and consequences are just too unwieldy and untried for the modern era.
In case you are not aware of them, check out the "Blue dog democrats". http://www.bluedogdems.com/index.html
They even have a Web site. They are a bunch of conservatives elected as Democrats but they are not progressives.
Our forefathers knew despotic government and crafter the amendment to ward off potential abuses.
Oh they've passed laws that say it's illegal to storm the castle, but a purely constitutional view says it's our birthright.
I fear this is the only way we're going to get our country back from the despots.
1989-1990. Thomas Jefferson stated in Two Letters that, "My Philosophy.... is that of Old Aristotle." Charles Sanders Pierce, who outlined the possibility of An Electronic Digital Computer in 1886, based on elelctric relays, to solve problems of Boolian Logic, stated, "My Philosophy is that of Aristotle, plus science. All of the Founding Fathers could have said the same thing, as Thomas Jefferson. The Harvard Case Law Method, was meant to protect Slavery from the Natural Law, based on reasoning. Case Law gives the Vicory, to the Richest Lawyer, with the Biggest Case Law Library, who finds the Oldest Prededent. If One has the Oldest Library, going back the further-ist, so one can always find an Oldest Precedent, to support what ever views one wants. Perhaps No Grduate of Anti-Aaristotle Law Schools, such as Harvard, Yale, or Johns Hopkins, especially, should be allowed to be in any American Judiciary. The Government of Ancient Israel reqjired its bureaucrats, the Levites, to retire at age 50, and its High Priests to retire at age 60. The U.S. wouldbe better to eliminate the States, and inssted use a comuter program, to draw up 500 French style Departments of about 600 Thousand Population, to replace both States and Counties. No one should serve in the Federal Government, after the age of 50, and in the National Security Presidency, after the age of 45. There shjould be also, a Social Security Presidency, and an Industrial Production Presidency, each with its own Treasury, and a True U.S. Central Bank, established, or the Federal Reserve Band Natonalized. The Three Presidents would jointly appoint Justice Department Officials, and Federal Judges, who would hae to retire at age 60, like the High Priest of Ancient Israel.Five most contigous grouops of Departments would elect Senators to Three Year Terms, representatives would have single year terms, and Chief Executives, at all levels, would have Two Year Terms. The Age limits for the Departments, and lessor levels, would be greatly limited, to encourage talent to move up to higher levels, at youthful ages. The Official US Philosopher, would have to be Aristotle, and those intending to attend Graduate School, would have to have a degree in Aristotle and The Natural Law.
"In Early April, the committee filed a blogosphere, have grown frustrated with Democrats on Capitol Hill for not resurrecting ..."
It does suggest lack of editorial oversight.
I once wrote a thesis, the subject of which was Kant's Categorical Imperative ("So live that your action can be a universal law").
While there were problems with the premises of "Metaphysic of Morals", and the "Critique oF Practical Reason" nowhere
did I see any discussion of any "natural law", nor even in the "Critique of Pure reason". It would seem on its face that in Kant's philosophy slavery of any kind would be wrong. On the other hand I don't remember anything in Aristotle mentioning slavery. Perhaps Calhoun was reading into things or some other writer such as Hegel discussing Kant, but our philosophy seminars generally agreed that nobody could understand Hegel.
In regard to "natural law" the only
kind of statement that could be attributed to Kant's interest is the comparison of the majesty of "Moral Law" to the laws of the universe and the "heavens above"
It is Locke who raised the subject of natural law being a matter or reason,
much of which comes from Spinoza.
That is, the individual's passion for freedom is a matter of natural law, (in spite of the great struggle of Moses to keep the multitude from straggling back to Egypt.)
No doubt we can be assured our actions have consequences.