Contempt

I'm really trying to figure out what the hell these mean anymore.

(Washington, DC)- Today, the House Judiciary Committee approved a report and resolution recommending that the House of Representatives cite former White House Deputy Chief of Staff, Karl Rove, for contempt of Congress for failing to appear before the Committee as required by subpoena. The report and resolution passed by a vote of 20-14.

“Today’s vote was an important statement by this Committee that no person – not even Karl Rove – is above the law.” said Chairman John Conyers, Jr. “This week’s Inspector General report on the pervasive politicization of the Department of Justice particularly underscores the urgent need for Mr. Rove to testify before Congress. Any suggestion that the matters for which Mr. Rove was subpoenaed are not important, or that no Administration misconduct has been revealed, is just inconsistent with the facts. Our investigation has revealed Mr. Rove to be a key figure in the firings of US Attorneys, and the questions about his role in the Siegelman case only continue to mount.”

Okay, and.... these citations have to get a full majority vote in the House. Will that be scheduled in the weeks left in the session? And, you know, what then?

The House's earlier contempt citations against Josh Bolten and Harriet Miers were referred under the statutory contempt procedure to the US Attorney who, at the instruction of the White House and the Department of Justice, declined to prosecute the cases. An ironic situation, given that the contempt citations arose in the context of an investigation into whether or not the DOJ and the White House were improperly directing prosecutorial decisions of the US Attorneys.

The House Judiciary Committee subsequently filed suit in federal court, seeking an order compelling the US Attorney to proceed with the prosecution, and somehow -- magically! -- the case was assigned to former Whitewater Deputy Independent Counsel John D. Bates, the federal judge who dismissed the Plame lawsuit, dismissed the Cheney Energy Task Force lawsuit, upheld the validity of Bush's signature on an a bill not properly passed in the same form by both houses of Congress, and dismissed the DNC's lawsuit seeking to force the FEC to rule on John McCain's attempt to withdraw from his presidential campaign's public financing commitments.

I don't know about you, but I'm not really feeling the fear with respect to the statutory contempt thing.

One other possibility: Rep. Brad Miller (D-NC) testified in last Friday's non-impeachment hearing before the Judiciary Committee regarding his legislation that would grant Congress the authority to petition the courts to appoint a special prosecutor in cases where the DOJ refused to take up referrals of contempt of Congress. That bill, H.R. 6508, now sits before the Judiciary Committee awaiting action, albeit with powerful cosponsors including Chairman Conyers, and subcommittee chairs Linda Sanchez and Jerry Nadler.

Probably time to get moving on that.

Kagro is absolutely right. If this gets stacked up in the same flawed process it'll lead down the same road as the Miers/Bolten citations. A special prosecutor is desperately needed. And I'd also keep in mind that this process should absolutely not end in the 110th Congress. Rove isn't connected to the Bush Administration anymore, there's no reason for this investigation to end when their term ends.

I would also add that Rove has been informally advising McCain. Any member of the press going to ask him about that?

How To Play The Game

This is honestly the saddest news item I've seen in the whole of the Bush Administration.

So the Congress has taken the Bush Administration to court to enforce subpoenas of officials involved in the US Attorney purge. The Administration's lawyers have laid out, in an 83-page document, their opinion of the case, which (surprise) rests on the notion that the judiciary branch should stay out of a political dispute between the other two branches. And they conclude that the legislative has plenty of cards to play in such a battle against the executive.

"For over two hundred years, when disputes have arisen between the political branches concerning the testimony of executive branch witnesses before Congress, or the production of executive branch documents to Congress, the branches have engaged in negotiation and compromise," Justice Department lawyers wrote [...]

As part of their argument, the administration lawyers cited Congress' considerable leverage as the more traditional means of getting what it wants. This is from the motion:

And the Legislative Branch may vindicate its interests without enlisting judicial support: Congress has a variety of other means by which it can exert pressure on the Executive Branch, such as the withholding of consent for Presidential nominations, reducing Executive Branch appropriations, and the exercise of other powers Congress has under the Constitution.

These may be Bush Administration lawyers doing the talking here, but the thing is - they're absolutely right. The Congress has all sorts of tools in their arsenal to force compliance from the executive branch. They can shut down the nomination process. They can eliminate any and all expenditures for the President and staff or executive agencies. They can refuse to enact spending bills for programs and policies prized by the executive. They can constitute tribunals inferior to the Supreme Court that may investigate the executive. They can use the power of inherent contempt to try those neglecting a Congressional subpoena, and imprison them. And they can, you know, vote to remove the President from office, or all civil officers of the United States, like the Attorney General.

There are dozens of ways for this Congress to get the attention of the President, as the Justice Department's own lawyers recognize. But of course, they won't do that. They worry about their image, their perception by the voters, what the Republican noise machine would say about them, and all the rest.

I'm certain that this reminder by the DoJ wasn't an effort to get the Democratic Congress to recognize their own power, or even an effort to get the courts to rule in their favor. It was an effort to get Republicans to recall what tools they can use in the event of a Democratic President. A committed minority in the Senate can make life more miserable for the incoming executive than this majority has ever made it for George Bush; executive power rollback is in some ways simply a matter of Congressional will. One thing is clear; the go-along-to-get-along nature of the Democrats over the past eight years will not be reciprocated.

And it's deeply embarrassing that it takes a bunch of Regent University grads or whoever they've got on the case at the Bush Justice Department to point this out.

On the Other Hand...

And now, in my typically schizophrenic way, let me talk about some of the good things going on in Congress.

Nancy Pelosi did file the lawsuit against Josh Bolten and Harriet Miers, in an attempt to force them to testify in the US Attorney firings. This is a case where the lawsuit is arguably more important than the information Congress wants to receive as a result of it. The separation of powers and the need for Congress to conduct meaningful and Constitutionally mandated oversight is crucial to our continuing as a democracy. Furthermore, it's time we nipped the expansion of "executive privilege" in the bud. George Bush has taken it to mean that everyone who ever talked to the President at any point is covered by the privilege, even if, as he admits, he had no discussion with these two over the US Attorney firings. Despite what should be an open and shut case, the dark cloud on the horizon is this:

The case was assigned to U.S. District Judge John Bates, an appointee of President Bush and a former prosecutor in the Whitewater criminal investigation of the Clintons in the 1990s.

This is really not good because if the precedent becomes Bush's theory of executive privilege, we've lost Congress as a viable entity. But if Congress did nothing, the same precedent would hold. So they have to press this.

We've also seen hearings on executive pay last week, and once that gets into the ugly light of day it'll be hard for CEOs to continue enriching themselves to the ridiculous degree they do. I liked my Congressman's statement on the two Americas.

“There seem to be two economic realities operating in our country today,” Representative Henry A. Waxman, Democrat of California, the committee chairman, said as the hearing opened Friday morning. “Most Americans live in a world where economic security is precarious and there are real economic consequences for failure. But our nation’s top executives seem to live by a different set of rules.”

Most important, there's talk of a new FISA deal in the House, which is substantially better than the first leaked deal from last week.

In continued defiance of the White House, House Democratic leaders are readying a proposal that would reject giving legal protection to the phone companies that helped in the National Security Agency’s program of wiretapping without warrants after the Sept. 11 attacks, Congressional officials said Monday.

Instead of blanket immunity, the tentative proposal would give the federal courts special authorization to hear classified evidence and decide whether the phone companies should be held liable. House Democrats have been working out the details of their proposal in the last few days, officials said, and expect to take it to the House floor for a vote on Thursday….

It would impose tougher restrictions on National Security Agency eavesdropping than the Senate version does by requiring court approval before the agency’s wiretapping procedures, instead of approval after the fact. It would also reject retroactive immunity for the phone carriers [...]

Under the proposal, the courts would be given authority to hear classified evidence in the civil suits — perhaps on an “ex parte” basis, with only one side in attendance — to determine whether the companies are immune from liability. Officials said the proposal would most likely give that authority to a federal district court, but it is possible that the Foreign Intelligence Surveillance Court in Washington could be given that authority instead….

If the telecoms could present evidence in their defense, a key argument made by the Bush Administration, that the phone companies can't defend themselves in court and therefore need immunity, would be lost. Moving the decision to the federal courts on whether or not to give immunity also makes more sense than allowing Congress to do it. This is not a bill that would ever be signed, but it strings out the discussion of the bill. Personally I don't think anything should pass. And the continuing negotiations on FISA suggests that nothing will this year. Once again, there's no public constituency for telecom amnesty, and thus no reason to give it to a Bush Administration that just wants to immunize themselves.

Big Day In The Annals Of Contempt Of Congress

Just hours after Nancy Pelosi demanded that the Attorney General direct the US Attorney for DC to act on contempt citations for Josh Bolten and Harriet Miers, the Attorney General replied, "Yeah, I'm going to have to go with no."

Attorney General Michael Mukasey on Friday rejected referring the House's contempt citations against two of President Bush's top aides to a federal grand jury. Mukasey says they committed no crime.

Mukasey said White House Chief of Staff Josh Bolten and former presidential counsel Harriet Miers were right in refusing to provide Congress White House documents or testify about the firings of federal prosecutors.

"The department will not bring the congressional contempt citations before a grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers," Mukasey wrote House Speaker Nancy Pelosi.

It's a good thing we have someone so wise at the Justice Department to put his judgment in front of the letter of the law. Both Dianne Feinstein and Chuck Schumer must be so proud of their little angel.

Pelosi responded swiftly, and in fine fashion:

“Anticipating this response from the Administration, the House has already provided authority for the Judiciary Committee to file a civil enforcement action in federal district court and the House shall do so promptly. The American people demand that we uphold the law. As public officials, we take an oath to uphold the Constitution and protect our system of checks and balances and our civil lawsuit seeks to do just that.”

Of course, there is another way that doesn't tie up the case years into the future as it winds through the court system, and that's inherent contempt.

Under the inherent contempt power, the individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned. The purpose of the imprisonment or other sanction may be either punitive or coercive. Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least in the case of the House, beyond the adjournment of a session of the Congress) until he agrees to comply. The inherent contempt power has been recognized by the Supreme Court as inextricably related to Congress’s constitutionally-based power to investigate.

Extreme, to be sure. Which is exactly what is called for in this case. The Administration is thumbing its nose at the Congress. The Congress appeals to the legal system but the Administration also controls that through the Justice Department. This is a scandal about US Attorneys and a US Attorney who WASN'T on the firing list, i.e. a "loyal Bushie," is hardly to be expected to prosecute. If this eventually goes all the way to the Supreme Court, there are plenty of "loyal Bushies" on there as well. But as it's a "political question" that the courts will likely find the other branches to need to settle amongst themselves, that's not likely. Inherent contempt is the only process where Congress doesn't have to rely on another government branch. Quoting Kagro X:

Let's face it: if the "administration" simply refuses to budge, the Congress either has to fold its tent and go home, or enforce on its own authority the subpoena power the American people voted for. Given that we've reached this impasse -- and we knew it was coming -- over an investigation into the hyper-partisan and hyper-politicized nature of the U.S. Attorneys, inherent contempt proceedings would appear to be the first and most direct resort of Congress in enforcing its mandate.

It would also appear to be the last stop short of impeachment. And with that remedy currently "off the table," Congress needs to speak -- and speak soon -- about how it intends to protect its prerogatives.

So far, that answer has been "not at all." So it's really a stark choice: either move forward with inherent contempt, impeachment, or go home. I know the Democratic leadership has their fingers in their ears until next January, just trying to run out the clock on the Bush Administration. Thing is, Bush has the same idea; he wants to get away with his crimes, protect his secrets and immunize himself, his staff, and his corporate partners. The only people standing in the way are members of Congress, and they're standing like bowling pins, waiting for the next strike to send them flying.

Pelosi recognizes that the future of Congress as a co-equal branch is at stake, but refuses to play as close to the edge as the White House. You're not going to win that way, and in this case "winning" isn't just a political victory, but a victory for the relevance of American government. Not worth risking that to get an extra few more electoral votes.

Murmurs of a Cave on FISA

I was just about to write a post about how the Democrats were getting some backbone. This week we've had Nancy Pelosi pursuing contempt of Congress citations for Josh Bolten and Harriet Miers strenuously, Democrats in the Senate holding firm on a proposal to reverse bankruptcy laws to protect homeowners subject to foreclosure, and House oversight investigators even forcing John Ashcroft to testify over no-bid contracts awarded to the US Attorney for New Jersey Chris Christie. And in the face of a ridiculous series of attacks by the White House and right-wing groups over FISA, the Democrats appeared to be unafraid.

Except:

To break an impasse over legislation overhauling the Foreign Intelligence Surveillance Act, House Democratic leaders are considering the option of taking up a Senate-passed FISA bill in stages, congressional sources said today. Under the plan, the House would vote separately on the first title of the bill, which authorizes surveillance activities, and then on the bill's second title, which grants retroactive legal immunity to telecommunications companies that aided the Bush administration's warrantless electronic surveillance activities. The two would be recombined, assuming passage of both titles. In this way, Democratic leaders believe they can give an out to lawmakers opposed to the retroactive immunity provision. Republican leadership sources said their caucus would back such a plan because not only would it give Democratic leaders the out they need, it would provide a political win for the GOP. It remains to be seen if such a move will placate liberal Democrats who adamantly oppose giving in to the Bush administration on the immunity issue.

House Speaker Pelosi said that Democrats hope to have a solution worked out by March 8. But she also indicated that Democrats want language included in the bill that would clarify that FISA is the exclusive means under which the government can conduct electronic surveillance. The White House and some congressional Republicans have argued that the 2001 authorization of military force to launch the war on terrorism gave Bush the authority to conduct warrantless electronic surveillance. They also say the president has inherent constitutional authority to do what is necessary to protect the country. Senators have battled over whether to include so-called exclusivity language in their FISA bill. In the end, an amendment from Sen. Dianne Feinstein, D-Calif., that states FISA is the exclusive means for conducting electronic surveillance failed to win a needed 60 votes in a roll call that split mainly along party lines.

This has all the makings of a trial balloon, being floated to see what the membership and the outside issue groups think. The ACLU is, um, not pleased.

We vehemently oppose the Senate’s Title 1 that allows mass, untargeted surveillance of every communication coming into and going out of the United States . If the House is to take up the measure, we greatly hope that important safeguards are built back in far above and beyond “exclusivity.” There really is no benefit to declaring FISA the exclusive foreign intelligence surveillance law if it allows the AG and DNI to singlehandedly decide when tap innocent Americans on American soil.

This should be really simple. The telecoms knowingly broke the law. They shouldn't be taken off the hook for doing so. And FISA is perfectly fine to protect the country from terrorists while respecting civil liberties. The President is a reviled figure and his bleatings have produced little or no momentum in the public. There's simply no reason to do this.

Peter Sussman, a plaintiff in two of the lawsuits against phone companies, writes in the Sacramento Bee about how this deal would be un-American.

After Saddam Hussein was executed, President Bush reassured the world that the Iraqi dictator received "a fair trial – the kind of justice he denied victims of his brutal regime."

The Bush administration has similarly promoted "the rule of law" and "an independent judiciary" for countries such as Cuba, Burma and Iran.

Yet that same president is pressuring Congress to deny Americans our day in court before an independent judiciary by repealing the rules of law that guarantee the right to sue a private company for illegal infringements on our privacy rights.

Before Congress is sucked into this rhetorical swamp, consider that AT&T and other phone companies that buckled to secret administration demands for our records had a legal alternative: They could have insisted that the administration first obtain the court order that they – or their corporate attorneys – knew was necessary. That's what another large phone company apparently did, demonstrating more respect for the rule of law than AT&T apparently has. AT&T would have been legally obligated to respond to a valid warrant, saving "millions of lives" at that "very moment."

Instead, AT&T chose to violate federal and state law.

I and my fellow plaintiffs don't stand to win any money through our lawsuit, much less billions of dollars, but we do hope to assure governmental accountability, to open to public scrutiny the actions of corporations and government that have teamed up to deny citizens the rights guaranteed by law.

Your House member needs a phone call. There is no public constituency demanding that the phone companies get amnesty. The "rule of law," pro-Constitution constituency must rule the day.

Wahhhh, Wahhhh, Wahhhh

The President had another temper tantrum like a little girl wanting to leave the mall with her parents. Republicans in the House followed suit by walking out of Congress in protest. They're claiming that Americans everywhere will be killed in their beds if we don't suspend the Fourth Amendment.

People aren't watching and they don't care. Britney did something nutty and the Oscars are coming and their favorite shows are going to be back in the air. Let the Protect America Act expire. Pass the contempt of Congress resolutions. All anyone will understand is that the Democrats, finally, stood up to an unpopular President. The only people that buy his spin are the 24% bitter-enders. There is no need to sacrifice liberty for security, and returning the nation to the FISA standard will in no way impact the national security of the United States. Furthermore, these contempt citations are necessary to legitimize the existence of the legislative branch.

So far, so good. The contempt citations passed. Now hold firm on FISA.

UPDATE: Some sage advice:

Tantrums should be handled differently depending on the cause. Try to understand where your child is coming from. For example, if your little one has just had a great disappointment, you may need to provide comfort.

It's a different situation when the tantrum stems from a child's being refused something. Toddlers have fairly rudimentary reasoning skills, so you aren't likely to get far with explanations. Ignoring the outburst is one way to handle it — if the tantrum poses no threat to your child or others. Continue your activities, paying no attention to your child but remaining within sight. Don't leave your little one alone, though, otherwise he or she may feel abandoned on top of all of the other uncontrollable emotions.

Sounds good to me.

You Stay Classy, Republican Party

So the House is actually moving forward on the contempt votes for Harriet Miers and Josh Bolten in the US Attorneys case. Kagro X has all the details. But what's interesting to me is that the initial attempt by the Republicans to dirty up this vote came with a motion to adjourn before they had to face it. Only thing is, the motion to adjourn took place in the middle of the late Tom Lantos' memorial service on the floor of the House.

They're nice people.

UPDATE: Adding to the Fighting Dem attitude of the last 24 hours, we have this story suggesting that the House would be fine with letting the Protect America Act expire and never taking up the Senate version of the FISA bill. This would be a tremendous smack in the face to Bush, and while I don't believe it for the moment, they're saying all the right things.

Democrats insisted that a lapse would have no real effect.

The expiration of the powers “doesn’t mean we are somehow vulnerable again,” said Representative Silvestre Reyes, Democrat of Texas and chairman of the House Intelligence Committee.

The lapsing of the deadline would have little practical effect on intelligence gathering. Intelligence officials would be able to intercept communications from Qaeda members or other identified terrorist groups for a year after the initial eavesdropping authorization for that particular group.

If a new terrorist group is identified after Saturday, intelligence officials would not be able to use the broadened eavesdropping authority. They would be able to seek a warrant under the more restrictive standards in place for three decades through the Foreign Intelligence Surveillance Act [...]

“The president’s presentation this morning was, I think, basically dishonest,” said Representative Steny H. Hoyer of Maryland, the majority leader.

Intelligence officials could continue intercepting suspect communications even if the deadline passes, Mr. Hoyer said. In pushing so hard for immunity for the utilities, he added, the Bush administration is “very nervous about what might be disclosed” if the lawsuits against the companies are allowed to continue.

“To some degree, therefore, I think it is a cover-up,” Mr. Hoyer said.

This would be an unprecedented show of backbone on the part of people like Steny Hoyer to ignore the pathetic pleadings of the President. That's why I don't quite believe it yet.

UPDATE: More on the Repubs disrupting the Lantos memorial here.

Powder Un-Drying?

I agree with emptywheel, John Conyers has kind of had it. He's been in Congress long enough to know how decayed the current one-way relationship between the legislative and executive branches truly is. So after months of wheedling, cajoling, strongly worded letters, even more strongly worded letters, and the like, he's finally starting to understand that jail is probably the only thing that the Bush Administration cronies will respond to. And so he reminded everyone today that there's a jail in the Capitol basement:

Madam Chairwoman, Ranking Member Drier, members of the Committee, thank you for this opportunity to testify on two related resolutions: 1) H. Res. 979, the Judiciary Committee’s resolution recommending that the House find White House Chief of Staff Joshua Bolten and former White House Counsel Harriet Miers in contempt of Congress for refusing to comply with subpoenas duly issued by the Committee, and 2) H. Res. 980, a privileged resolution I introduced today authorizing the Committee to initiate or intervene in civil judicial proceedings to enforce those subpoenas.

Recommending that the House cite someone for contempt of Congress is a step that the Committee, and I as Chairman, take with great reluctance. Unfortunately, it is a step that is clearly necessary to preserve the role and constitutional prerogatives of Congress as an institution, in addition to getting to the bottom of the U.S. Attorney controversy.

The Judiciary Committee voted on July 25 to recommend the contempt resolution because, despite months of effort to secure voluntary compliance, the White House has refused to provide access to crucial information requested by the Committee. In fact, as of today, I have written nine letters over more than eight months trying to resolve this matter. But despite duly issued subpoenas, the White House has determined that it has the unilateral authority to prevent Mr. Bolten from providing us with a single piece of paper and to prevent Ms. Miers from even showing up at a Committee hearing.

If the executive branch can disregard Congressional subpoenas in this way, we no longer have a system of checks and balances. That is the cornerstone of our democracy, and it is our bipartisan responsibility to protect it. As our former colleague, Republican Mickey Edwards, has explained, taking action is crucial in order to defend Congress “as a separate, independent, and completely equal branch of government.”

I'll tell you, when I saw a hint of this in today's New York Times I dismissed it entirely. But I think Conyers finally understands that at stake is the legitimacy of the Congress itself. And as emptywheel notes, he has gone further than just bringing up the contempt citiations, calling on the House Judiciary Committee to intervene in civil lawsuits to force the US Attorney and the Justice Department to enforce the subpoenas. Conyers is trying to go over the head of the Attorney General here, and he has the ability to do it.

This really is a long time coming. I hear that Rahm Emanuel wants to keep the powder dry until after the elections because the Congress could lose in a court fight and would not have the ability to enforce their contempt citations in the future. But an unused weapon never struck anybody. The time to fight this out is now, before the precedent is established that a rogue President can grab whatever power he wants for himself and will face no resistance from the co-equal branches of government. I also agree with Kagro X on this:

And here's another consideration: the contempt vote was last postponed in order to avoid poisoning the atmosphere of "bipartisan cooperation" (cough, cough!) supposedly necessary for the passage of the economic stimulus package. With that out of the way, the stage is apparently set for this more confrontational issue.

But the House is also now wrapped up in the FISA issue, where the pressure is increasing for them to stand firm behind their already-passed RESTORE Act rather than agree to go along with the horrible, Rockefeller-backed betrayal passed by the Senate.

Will the House panic and back off of the contempt vote again, for fear that confrontations on both FISA and contempt at the same time is simply too much to bear? Quite possibly.

Here, it might be time to borrow a page from the White House playbook, and pursue a "flood the zone" strategy. When the White House has multiple outrages to perpetrate (as is so often the case), it does so in overwhelming waves, with no mind paid to pacing or any insistence on decent intervals in between. Indeed, the strategy seems to be to flood the public, the media, and the Democratic opposition with everything it can throw at them, all at once. And each time they've done it, the national media have been for the most part unable (or uninterested) in keeping up. Light five fires at once, and four go relatively unnoticed.

So perhaps it's time to bring out all the grievances against the executive now roiling beneath the surface inside the Congress. Why not deal with contempt at the same time as we (hopefully) fight on FISA? And why not encourage the Senate to add its pending contempt votes to the pile as well? And why not get down to issuing subpoenas aimed at the "administration's" stonewalling on questions surrounding the missing e-mails? The destruction of the torture tapes? The withholding of key documents and testimony by the Department of Education? By NASA? In fact, by virtually every department of the executive branch that's been asked to comply with Congressional oversight over the past several years?

It looks to me like the House may put up a fight on the FISA issue. Note that Speaker Pelosi very clearly lays out that a lapsing of the Protect America Act, which expires on Friday and will not be renewed (the Progressive caucus helped Republicans put a stop to that today), would not mean that any surveillance of foreign targets would stop whatsoever. Seems to me like a great strategy to have all of these fights at once, considering that a public and media distracted by the Presidential race won't take the time to figure it out.

And of course, there's the fact that whatever George Bush is screaming about on the teevee, Democrats who want to be loved by the public should do the exact opposite. Their approval numbers will skyrocket.

My encouragement is to fight. Support Conyers, support the progressives like Rush Holt who want to go back to the original FISA statute, and make Bush and his pals mental. It'll work.

Contempt

In rare news of the Congress doing their job, the Senate Judiciary Committee has approved contempt citations for Karl Rove and Josh Bolten. Although, this is so far removed from the actual scandal to which it pertains (it was the US Attorney firings) that I don't think anyone remembers why they're being called, and thus politically it takes the shape of piling on needlessly, and becomes completely ineffective. Not to mention:

The criminal contempt resolutions now move to the Senate floor, although no action on them is expected until next year [...]

The House Judiciary Committee has also approved contempt resolutions against Bolten and former White House Counsel Harriet Miers, but Speaker Nancy Pelosi (D-Calif.) has not set a date for a floor vote yet.

There's a principle at stake here, of course, and that's the role of Congressional oversight, but this can easily be characterized as old news, because it actually is old news. Meanwhile the US Attorney for DC, who would normally represent Congress in any legal battle with the White House, won't enforce these contempt citations. And the Bush Justice Department is gearing up to suppress the vote in 2008, again, which was after all one of the prime motivations of the US Attorney firings.

I'm Not A Puppet! Oh Wait, My Strings Are Being Pulled

Arlen Specter got all bent out of shape for Harry Reid calling Republican Senators "puppets" for George Bush. Then he went out today and played the puppet role well.

A Senate Judiciary Committee vote on contempt resolutions against Karl Rove and White House Chief of Staff Josh Bolten were postponed following an objection by Sen. Arlen Specter (R-Pa.). Under Judiciary Committe rules, the vote will be postponed for one week [...]

Specter, who asked Leahy for a chance to revise the draft resoltions, warned that the whole matter could end in federal court, which is not something he wants to occur.

"It continues to be my hope that this matter could be resolved without litigation," Specter said, although he added that he would back Leahy's effort to enforce the committee's subpoenas.

Then Specter walked out and voted to filibuster a bill that would repeal the alternative minimum tax, which is increasingly hitting the middle class. Despite Democratic fiscal responsibility, seeking to actually offset the loss of revenue that would come from repealing the AMT, Bush puppets wouldn't stand for it.

Arlen, if you want to stop being called a puppet, prove it through your actions, don't whine about it.

Strike Up The Band, We Got Ourselves a Contempt Proceeding

We'll see how far they get with it, but Patrick Leahy is planning a vote in the Senate Judiciary committee on Thursday for contempt citations, which has been a slightly more anticipated event on Capitol Hill than the Sopranos finale.

Senate Judiciary Chairman Patrick Leahy (D-Vt.) has scheduled a committee vote Thursday on contempt resolutions against White House Chief of Staff Josh Bolten and former presidential political guru Karl Rove for failing to respond to subpoenas.

Under Judiciary Committee rules, the vote could be postponed for a week, but Leahy said he intends to move the criminal contempt resolutions as soon as possible. Last week, he rejected the White House's executive privilege claim in preventing Rove and Bolten from appearing before his panel, calling it "overbroad, unsubstantiated, and not legally valid," setting the stage for Thursday's showdown.

At least one of the top Democrats on the Committee is ready for this fight. The perpetual weak knees of the Democrats whenever anything close to challenging the President comes up is likely still operative, but not for Sheldon Whitehouse:

"There has not been a lot of case law on this subject. We've been going on for a long time off of Department of Justice [attorney general] opinions, and a certain amount of tradition, and how settlements and agreements in the past have shaken out. But the Bush administration has shown why it's actually important that there be a legal line drawn to hold them to, because they've redrawn all the executive lines. I think it'd be good for the process to get a court decision for once and for all on the subject so everybody knows where we stand. It'll eliminate a lot of the back and forth in the future."

It's important for these Senators to understand that this is a historic moment, with the relevance of their offices at stake. If they can't bother to fight for the separation of powers and the ability of the legislative branch to check the executive, what will they ever fight for? Whitehouse, at least, seems to get this, and is willing to push even beyond the current Administration's tenure to get a ruling for posterity.

Whitehouse doubted that the process -- the committee holding the White House in contempt, the full Senate following suit, the subsequent court fight and its resolution -- could be completed before the Bush administration ends. But he said he would see it through to its conclusion regardless of who's president. "It might be, frankly, that with the Bush administration out we'd get a better decision," he said. "We might have an administration that isn't trying to protect anything, and is just interested in the legal question."

It's not that Whitehouse expects that a court ruling on executive privilege will end executive-legislative struggles over its scope. But it would at least set a stable set of boundaries for its legitimate exercise, rather than leaving subsequent administrations free to expand it even further, he said. "The boundary of that debate has been expanded dramatically by the Bush administration, and it's important to get it back to where we're discussing things around some common principles that the court can establish," he said. "It should narrow the disagreement considerably if you've got an established legal framework in which you're having the discussion."

Right now we have a President who thinks that the only legitimate exercise the Congress should be allowed to serve is as an ATM. Today's press conference was not about Iran, it was about bellyaching over Iraq funding. What this contempt proceeding is about, in addition to getting to the truth of the US Attorney scandal, is reasserting the role of the Congress in our form of government. Nothing can be more important.

P.S.: It's amusing to me that Karl Rove is waddling around on his "please buy my book" tour, telling anyone who will listen about internal White House discussions on the 2002 Iraq resolution, and who was driving the debate in Washington, yet when the Congress wants him to answer questions on another Administration matter, suddenly he claims executive privilege. It's essentially privilege as a convenient blanket.

They Just Don't Have The Guts

The White House has defied subpoenas from the House and Senate Judiciary Committees, and demanded that its employees not answer subpoenas to testify to Congress. It's a fairly unprecedented, bold and brazen act. And they get away with it because the Democratic leadership keeps playing this "stop or I'll shoot, I swear I'll shoot!" game, when everybody on the planet knows that they'll eventually back down.

House Democrats have postponed a vote until December on contempt resolutions against White House chief of staff Josh Bolten and former White House counsel Harriet Miers, delaying for now any constitutional showdown with the White House over the president’s power to resist congressional subpoenas.

Judiciary Committee Chairman John Conyers Jr. (D-Mich.) has been pushing for the contempt vote, arguing that the White House must be held accountable for ignoring subpoenas issued by his panel as part of the U.S. attorney firing scandal. Other top Democrats, including Caucus Chairman Rahm Emanuel (Ill.), have argued that the House should put off that fight while debates over Iraq funding and electronic eavesdropping dominate the floor. The contempt vote had been tentatively scheduled for Friday before Majority Leader Steny H. Hoyer (D-Md.) informed his colleagues that it was being delayed.

“[Emanuel] has been saying that this week is not the time to do this, that it will step on our message on Iraq and FISA,” said a top House Democratic leadership aide.

I guess then they'll wait for a time when there's no pending legislation on the floor of the House. So we can all expect those contempt charges sometime around the 5th of never.

Conyers' committee authorized the contempt charges in JUNE. It's just unbelievably weak to wait five months before bringing it up for a vote. The body constituted in Article I of the Constitution is marginalizing themselves. They don't even need any help from the power-grabbing President.

The electorate learns through action. They see no action, they assume weakness and spinelessness. They're usually right.

We Really Really Mean It This Time

John Conyers has sent out 8 separate letters to the White House asking for documents and the testimony of key officials in the US Attorney probe, without any success. The latest one is more strongly worded than ever!

Conyers sent a letter to Fielding today, laying out a final proposed compromise solution - the ninth such letter sent. The Committee will also file its contempt report with the House clerk when the House begins its legislative business at 2:00 p.m., which would allow a contempt of Congress vote in the full House to move forward if Fielding rejects this final offer.

Specifically, Conyers requested that the following terms be met:

1. The White House would provide the Committee with copies of documents reflecting communications between White House staff and persons outside the White House relating to the U.S. Attorney terminations and related matters.

2. The White House would make available for confidential staff review the remaining, internal White House documents relating to the same subjects, after which the Committee would identify what would most probably be a smaller number of such documents for production.

3. The Committee and White House would specify present and former White House staffers for interviews but would not require those persons to be under oath.

Conyers notes that the White House has agreed to similar terms for the House Oversight and Government Reform Committee’s investigation into Pat Tillman’s death. Further, several of the same agreements were successfully carried out with Justice Department interviews and document production.

This deadline is Friday. This is quite a windup for the pitch, isn't it?

Look, the White House has shown absolutely no interest in cooperation whatsoever. There's little choice but to commence the contempt proceedings and set in motion this Constitutional showdown. The main reason is precedent. If nothing is done when the executive branch ignores Congressional subpoenas, the integrity of the legislative branch is forever compromised. I see little desire on the part of Congress to even prosecute this US Attorney matter any further, even though recent revelations, about the trial of former Alabama governor Don Siegelman, and the testimony of Dick Thornburgh about politically motivated prosecutions in Pennsylvania, make it even more important to get to the bottom of the matter. But the point is that at some point, the Congress has to stop playing doormat and use the powers granted to them in Article I. As Markos writes, channeling the frustration felt by all of us:

D.C. is a funny place. No one seems to have gotten that resounding message, certainly not Bush and the new Republican minority. More surprisingly, Democrats also failed to get the message. On issue after issue, the Democratic norm has been to capitulate to the slightest pressure from the GOP. And while the public has meted record-low approval ratings for this Congress in response, the lesson apparently remains unlearned.

Whether it’s Iraq funding or the Michael Mukasey confirmation, Democrats continue to give away the store without receiving any concessions in return. It’s a one-way street in a town that has ceded Article I of the Constitution for a unitary, non-compromising executive. The public is sick of this administration’s betrayals. Why aren’t Democrats?

Good question.

Fourthbranch Strikes Again

Just when you thought it was safe to go back into Washington:

Vice President Dick Cheney’s office on Monday responded separately from the White House to a Senate subpoena for documents on warrantless wiretapping and resurrected the controversial contention that Cheney is not part of the executive branch.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) set Monday’s subpoena deadline after granting an extension request by the White House. Presidential counsel Fred Fielding, as expected, told Leahy in a letter that a second delay, until after Labor Day, would help Congress and the administration “expeditiously seek a means of accommodation that will negate the need for an assertion of executive privilege.”

But the response from the vice president was more surprising, because the White House was believed to have abandoned the argument that Cheney is a hybrid entity with both executive and legislative powers.

The press oughta know by now that zombie conservative lies never die. It doesn't matter that the Fourthbranch argument has been openly laughed at by every serious scholar of the Constitution; Cheney SAID it, making it true to Cheney and every lawyer in the White House.

This revelation came as part of another empty threat of a press conference by a Democratic leader.

During a press conference this afternoon, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) announced that the White House had still not responded to the committee's subpoena for documents relating to the legal basis for the warrantless surveillance program. "Time is up," Leahy said, "we've waited long enough." He went on to say, however, that he remained open to cooperating with the White House for the production of the documents: "I prefer cooperation to contempt." But if the administration has still not responded to the subpoena by September when Congress returns from recess, he said that he would pursue contempt proceedings in the committee "if that's what it takes."

Shorter Patrick Leahy: "I really mean it this time!"

That will have approximately zero impact within the White House and the OVP. I mean, this is an executive branch that feels they can tell the Congress what to do... and of course the worst part is that Congress listens, making this learned behavior.

Leahy said that the administration’s stonewalling amounted to “contempt of the valid order of the Congress,” and pointed out that these subpoenas were passed by broad bipartisan votes. In fact, the Senate Judiciary Committee in the conservative-led 109th Congress, chaired by Sen. Arlen Specter (R-PA) also attempted to ask questions about the program’s legal justifications. But Vice President Cheney personally barred him from issuing subpoenas:

In fact, we were about to issue subpoenas then and one of the senators came to our meeting and said that the vice president had met with the Republican senators and told them they were not allowed to issue subpoenas.

Not quite sure that’s my understanding of the separation of powers, but it seemed to work at that time.

When the Congress slavishly listens to anything you say for 6 straight years, I imagine it would be kind of hard to believe that they would disobey you on anything. Which is all the more reinforced by the opposition party's fecklessness.

Sen. Leahy should know that we'd have his back in a contempt proceeding, which is absolutely warranted by the facts. I do understand that it's also probably what the White House wants, for both political reasons and the fact that the courts move at a snail's pace and this would drag out until the end of the term.

Contemptuous

John Conyers starts the process in motion:

The House Judiciary Committee voted contempt of Congress citations Wednesday against White House Chief of Staff Josh Bolten and President Bush's former legal counselor, Harriet Miers.

The 22-17 vote — which would sanction for pair for failure to comply with subpoenas on the firings of several federal prosecutors — advanced the citation to the full House.

A senior Democratic official who spoke on condition of anonymity said the House itself likely would take up the citations after Congress' August recess. The official declined to speak on the record because no date had been set for the House vote.

This is the House Judiciary Committee doing what they've been forced to do. The White House is openly thumbing its nose at any kind of normal processes between the branches of government. There's nothing else to do.

Now we see what happens when the US Attorney for DC demurs (at the Justice Department's insistence) to prosecute. Will they cite inherent contempt charges and throw these lawbreakers in the Congressional pokey (there is a jail on the premises)?