John Dean: Harriet Miers’s Contempt of Congress - Are Conservatives About To Neuter Congress?

[Hissyspit]

http://www.afterdowningstreet.org/?q=node/24647

Submitted by davidswanson on Fri, 2007-07-13 19:49. Congress

Harriet Miers’s Contempt of Congress: Are Conservatives About To Neuter Congress, While Claiming Full Legal Justification for this Separation-of-Powers Violation?
By John Dean, www.FindLaw.com

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In short, the Bush White House is not bluffing with this act of defiance. Rather, the White House truly wants to test, and attempt to expand, presidential power. Bush’s White House is ready, willing, and able to play hardball. Indeed, the White House may actually be trying to bait the House Judiciary Committee and the House of Representatives into voting to deem Ms. Miers in contempt of congress.

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Congress Needs To Protect Its Powers: Only One Way It Can Do So

Marty Lederman has prepared a nice overview analysis of what happens when officials defy a congressional subpoena.

Let’s suppose that the House votes Miers in contempt, and the matter is sent to the U.S. Attorney. One can expect that no prosecution will be brought. During the Reagan years, the Justice Department ruled that even though the referral statute makes it the “duty” of the U.S. Attorney to take the matter to the grand jury, Congress cannot enforce that duty on the Executive Branch if the Executive Branch refuses to honor it. As noted, it would appear that under the most recent Justice memo on the subject, the White House will not permit the U.S. Attorney to prosecute the matter, and Congress has no power to overrule that by forcing the U.S. Attorney to go forward.

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Finally, if Miers is found in contempt, the House itself can take action against her at the bar of the House. (The Senate can similarly hold such proceedings.) Congress has the power to prosecute contumacious witnesses to require them to comply, and the Supreme Court has repeatedly reaffirmed this power. For example, in 1987, in Young v. U.S., Justice Antonin Scalia recognized “the narrow principle of necessity” or “self-defense” of the Congress in protecting its institutional prerogatives. Scalia said “the Legislative, Executive, and Judicial Branches must each possess those powers necessary to protect the functioning of its own processes, although those implicit powers may take a form that appears to be nonlegislative, nonexecutive, or nonjudicial, respectively.”

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If they do not, Fred Fielding has it right: Officials are absolutely immune from compelled Congressional testimony. Bush can simply tell Congress to stop sending subpoenas to his appointees. However, if Congress does engage in a little self-help at this crucial juncture, it can be sure that not only Harriet Miers, but also George Bush, will be forced to pay attention to congressional subpoenas - for the bottom line is that Congress will not need the cooperation of the other branches to enable it to conduct proper oversight.

MUCH MORE AT LINK

[Richard Steele]

1. Miers is in contempt. End of story. Little georgie's claims of "divine right" don't change that. nm

[azurnoir]

2. The Republics need to remember

that when we have a Democratic President, the same will hold true and payback can be a bi*ch.

[loyalkydem]

3. amen

I so 100 percent agree with you.

[MannyGoldstein]

4. Um Guys - We Have To Keep Our Powder Dry...

Such craven cowardice.

[paulk]

6. what are you talking about?

this hasn't even come up for a vote yet. Maybe you should wait before trashing the Dems for something they haven't done.

[MannyGoldstein]

9. You're Right

I'm assuming that they will continue to evade their Constitutional duties. I might be surprised for once... we'll see.

[MissWaverly]

5. Paula Jones v. Bill Clinton anyone

The Supremes definitely stated that the Executive (who was a democrat and not the Decider) was not entitled automatically to special treatment that was a civil case, a misdemeanor and they wouldn't even let him delay it.

"The fact that a federal court's exercise of its traditional Article III
jurisdiction may significantly burden the time and attention of the Chief
Executive is not sufficient to establish a violation of the Constitution...
It is settled law that the seperation-of-powers doctrine does not bar
every act of jurisdiction over the President of the United States...
If the Judiciary may severely burden the Executive Branch by reviewing the
legality of the President's official conduct...it must follow that the federal
courts have the power to determine the legality of his unoffical conduct..
We therefore hold that the doctrine of seperation of powers does not require
federal courts to stay all private actions against the President until
he leaves office."

Page 41-42 No Island of Sanity by Vincent Bugliosi, Paula Jones v Bill Clinton: The
Supreme Court on Trial, Ballantine Books

[Hissyspit]

7. Oops. Dupe (although I excerpted different segments).

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x1324110

[mmonk]

8. They have to have something in order to be neutered.

[farmboxer]

10. Republicans got away with a coup,possibly two coups

and they know nobody, but nobody will stop them! I will be very surprised if anyone does anything about the Bush, actually, Cheney dictatorship!

[Pachamama]

11. With Roberts and Alito on SCOTUS, Bush Co. is probably feeling pretty good right now about its odds

if this goes to the Supremes.....

I fear the 2nd Coup is not far away.....wow.... :scared:

[Vidar]

12. Hard to neuter a gelding.