Don't get your hopes up about the new subpoena power.......well, hell

[AnnInLa]

http://www.dailykos.com/storyonly/2006/12/8/1227/78438

((so, Gonzales, or anyone else in the bush admin, is subpoenaed by a new congressional committee...what happens when he tells the committee to go to hell?))

hen it comes to deploying its Executive power, which is dear to Bush's understanding of the presidency, the President's team has been planning for what one strategist describes as "a cataclysmic fight to the death" over the balance between Congress and the White House if confronted with congressional subpoenas it deems inappropriate. The strategist says the Bush team is "going to assert that power, and they're going to fight it all the way to the Supreme Court on every issue, every time, no compromise, no discussion, no negotiation."

big snip

So, let's look at the mechanics of subpoena power. In its investigative capacity, Congress has adopted for itself the use of a subpoena power that's roughly analogous to that more commonly seen in the judicial and law enforcement system, in which government prosecutors (employees of the executive branch) leverage the power of the judicial branch (in the form of its ability to sentence those brought before it for contempt, should they defy the subpoenas) to ensure compliance with the demands made.

But Congress is not the executive branch. Nor is it the judicial. Its independent enforcement powers are limited to only the most obscure and archaic procedure -- "inherent contempt" -- which hasn't been exercised since 1935, and with good reason: this procedure itself requires a trial before Congress. Not a particularly helpful substitute when you're trying to avoid a trial before Congress in the first place.

Instead, Congress depends for its enforcement powers on the executive branch. If you defy a Congressional subpoena, you face the possibility of charges of contempt of Congress, pursuant to the adoption of articles by whichever house is charging you. But those charges are not self-executing. In other words, they're a request that charges be brought. In order to be effective, those charges still have to be prosecuted in court, and that's up to the discretion of the U.S. Attorney for the District of Columbia. He's an employee of the "unitary executive," of course, and reports to the Attorney General. You could try going to court, but not only will that pretty much run out the clock, but the courts are quite likely to tell you, "What are you crying to us for? You have your remedy. If you're too chicken to use it, that's your problem." They may well hand it right back to Congress as a "political question," and refuse to resolve it. After all, tied up in that question is yet another: should the legislative branch be able to leverage the judicial in order to force the executive to submit to its will?

Long story short: This is not an issue that can be resolved on moral, ethical, legal, or political grounds alone. It can be ignored for any or all of those reasons, but not resolved.

http://www.dailykos.com/storyonly/2006/12/8/1227/78438

((I guess we shouldn't get our hopes up too much. damn))

[wryter2000]

1. I'm not sure

I'm sure the WH criminals will try defying subpenas, but I think they can be compelled by the courts. I suspect that SCOTUS is going to be busy with these issues. Remember US v. Nixon? Nixon argued that he was protected by executive privilege (I think it was over releasing the Oval Office tapes). SCOTUS ruled he had to release them, and he did.

At some point, Booosh et al. would have to worry about what their refusal will look like to the public. They could have tried refusing to send Rice before the 9/11 commission, but she testified.

Given that there will be plenty of witnesses very happy to testify, and given (I suspect) that even Booosh won't try to protect the small fry, I think there'll be so much damning evidence that we'd be able to build a credible case for impeachment that would result in a conviction in the Senate. Refusing to send the big guys won't save him, imho.

In any case, we're in for a wild ride in 2007.

[elocs]

8. Was the Supreme Court during the Nixon years liberal or conservative?

Where they more likely to side with Nixon or the Congress? Is the Supreme Court now liberal or conservative? Would they be more likely to side with Bush or Congress? Would this be the same type of Supreme Court who stopped the recount in Florida in 2000 which made Bush the President? Or if the Supreme Court always does the noble and right thing according to justice, what would it matter if they are liberal or conservative? That last question is rhetorical inasmuch as it does matter very much if the Supreme Court is liberal or conservative.

[G_Leo_Criley]

11. the Supreme Court in 1974

It was a unanimous (8-0) ruling, with Rehnquist recusing himself. The members were mostly liberal and moderate. (Rehnquist and Burger were the conservatives.)

Chief Justice Warren Earl Burger
Joined by: Justices William O. Douglas, William J. Brennan, Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun and Lewis Franklin Powell, Jr.
Associate (later Chief) Justice William Rehnquist recused himself, and did not participate in the trial.

Some quotes from this case (which centered on the right of an investigative committee to subpoena Nixon's White House audio tapes):

* "The President wants me to argue that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment." — James D. St. Clair, Richard Nixon's counsel, arguing before the Supreme Court

* "Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisors calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises."—Chief Justice Warren Burger

source: http://en.wikipedia.org/wiki/United_States_v._Nixon

glc

[wryter2000]

15. I really don't know what this Court would do

I only brought up US v. Nixon to point out that there is a method of enforcement that doesn't involve Alberto Gonzalez. I hope a majority would do the right thing.

[Uben]

2. If they refuse to honor the subpoenas

...then it is time to impeach and remove them.....kicking and screaming as their asses hit the pavement outside the whitehouse! Then send them before the world courts and let them be judged for their atrocities there. One or the other....no options.

[H2O Man]

3. In fact

in investigations related to impeachment hearings, the House enjoys the superior power to subpoena. That is one of the strengths of the pro-impeachment stance.

[elocs]

7. Does Congress enforce contempt of Congress charges?

Who will do it? How long, l-o-o-n-n-g-g will this take? Will it be done by January 2009? Is this a complicated case? How long does it take a complex criminal case to be resolved from beginning to end? Especially when one side wants to stretch it out, stall and stonewall and use every possible legal maneuver and available judge to roadblock it.

[elocs]

6. Subpoenas are used to gather evidence for the indictment (impeachment).

A DA does not indict somebody and then go out and investigate the reasons for indictment and conviction. That is putting the cart before the horse. I am quite sure that world courts have no power or control over the legal system of the U.S. Impeachment itself will probably take at least a year after the articles are voted upon. You need to deal with reality and prepare yourself for disappointment and look at the facts instead of simply venting in rage. Nobody is going to be removed kicking and screaming. Your scenario will never happen.

[elocs]

4. What is that sound?

It is the sound of the air coming out of all of those impeachment arguments that this was going to be a cakewalk and that Bush would easily be impeached, convicted, and marched off to the Hague for trial on war crimes. It is also the sound of exploding heads as they pop in rage. Bushco are people who cut their teeth in the Nixon administration, but make the secrecy of that administration look like a Sunday school picnic. Bushco will stall, stonewall, and will use every trick and legal maneuver in the book to stretch this out until the clock runs out. So there is contempt of Congress. Who is Congress going to get to enforce that contempt? Is the Congress then going to go to the Conservative Supreme Court for remedy? Lots of luck there. The reality is that Pelosi knows what she is doing by taking impeachment off the table. There is not enough time.

[H2O Man]

5. Wrong.

You might consider what the federal courts have decided in cases of subpoenas in impeachments versus other investigations. The air you hear is coming from another source, much closer to you.

[elocs]

9. Time will tell, time will tell. I will admit if I am wrong, will you?

It will be interesting to see a review of all of this in January of 2009 to see how it turned out. Actually, I think you will find many here still raging and disappointed in a year from now.

[AnnInLa]

10. Elocs, H20man & Writer.....what do you think of this?

Comment by Tetris in the discussion at kos:

Congress found out that Nixon recorded all the conversations in the oval office. Congress wanted those tapes and issued an order to retrieve the tapes. Nixon refused to comply, citing executive privelege.

The Supreme Court ultimately ruled that Nixon DID have to hand over the tapes because executive privelege only covered legitimate executive duties, such as commander-in-chief. Since the tapes had incriminating evidence on them from the Watergate break-in (not a legitimate executive activity) he had to hand them over.

As soon as Congress got the tapes, Nixon was incriminated and he resigned.

The important idea here is that if we go after Bush for the NSA, prisoner abuse, Iraq War intelligence, etc. he might be reasonably get away with executive privelege. The 4 right wing judges in the SCOTUS will side with Bush and so will Kennedy b/c he believes strongly in precedent.

If we are serious about impeachment, we should look into non-legitimate activities and fight over those. No bid contracts in Iraq and the Cheney Energy Task Force seem like two great avenues to persue and I don't think the courts will let Bush use executive privelege for those, especially if there is a criminal investigation of special prosecutor b/c then it is a criminal matter.

Finding economic corruption will be a hell of a lot easier than looking for national security corruption.

http://www.dailykos.com/story/2006/12/8/1227/78438

[elocs]

12. Don't worry about impeachment, the Democrats have the votes to do that.

It is the conviction aspect of the process that is severely in doubt. That is probably one of the greatest reasons why Pelosi says impeachment if off the table. Most of the impeachment scenarios, which all seem to take conviction for granted, seem to be too rosy and perfect storm-like and do not take the amount of time that Bush has left into consideration. If we look back at Watergate, the burglary occurred in June of 1972 and the burglars were caught a couple of days later. Almost 11 months later in May of 1973 the Senate Watergate committee started the hearings. In July of 1974 the House Judiciary committee passed the articles of impeachment against Nixon. That's a year and 2 months later.

So time is one of the greatest problems with any impeachment scenario that has any hope of conviction (probably, like with Nixon, more likely resignation). Chances of conviction are much more problematic now because the nation and Congress is much more polarized than it was in 1974.
Are we to believe that those Republican senators who regularly get trashed and ridiculed here are suddenly going to become noble and patriotic and vote for conviction? Possible, but many of the impeachment/conviction scenarios take that for granted.

If Bush is impeached and convicted and/or resigns with Cheney still VP, the same will happen as did with Nixon and he will be pardoned. Want to go after both Bush and Cheney? I don't see how that would not take even more time. Nixon's woes and resignation occurred in the first 2 years of his second term and Bush's would be in the last 2 years. In another year the 2008 presidential campaign will be in full swing. If investigations which would lead to conviction are not producing solid results by then, impeachment and its possibility will become the #1 issue during the campaign. I am sure Pelosi does not want to risk losing the presidency and strength in Congress unless there is a real possibility of conviction.

Also, don't blow off the notion that Bushco, with many of its cohorts being the young turks who cut their teeth in the Nixon years learned a lot from the Watergate experience. I still think that they will use every legal means possible to delay the process. This must be taken into consideration. If Bush and Cheney have committed crimes, then they should be able to be made accountable for them after they leave office. As long as there is a Democratic president, they will get no pardons. Pelosi may also have this in mind. Either way, in her position as Speaker of the House, she needs to be pragmatic about impeachment and its possible consequences.

I don't need to present any rosy or perfect storm scenarios for why impeachment along with conviction and/or resignation is a long shot with very real potential political downsides for the Democrats. I can just look at the political reality and learn from what has happened in the past.
Our Democratic leaders are not screaming bloody murder for impeachment like many here are doing. Democrats did not run in last month's election on an impeachment platform. Those who want and demand impeachment and conviction need to seriously examine that it probably will not happen as opposed to concentrating on only what they wish to happen.

[AnnInLa]

13. thanks for edumacating me!

[originalpckelly]

14. There is no Executive Privilege in the US Constitution...

and that argument has always been used to hide serious bullshit. Nixon tried to use it in Watergate, and he tried to use it on the most damaging documentation of his involvement, the Watergate tapes. The Supreme Court had enough sense then to override the claim of Executive Privilege, hopefully they will do it now with any claim on important docs.

[wryter2000]

16. Unfortunately, US v. Nixon established executive privilege

The decision stated there was such a thing as executive privilege, but a criminal case trumped that, as someone else in the thread elloquently explained. So, we have executive privilege even though it's not in the Constitution.

What's unclear, though, I think is whether executive privilege extends beyond the President. You could make a case for Vice-President, but beyond that...:shrug: