SWANSON After Downing Street: Secret to Forcing Compliance With Subpoenas

[L. Coyote]

Secret to Forcing Compliance With Subpoenas
by David Swanson - August 31, 2007
After Downing Street
http://www.zmag.org/content/showarticle.cfm?SectionID=72&ItemID=13663


On April 10th, the House Judiciary Committee subpoenaed the Justice Department for papers and Emails related to the apparently politically motivated firings of U.S. attorneys. The deadline passed. The DOJ did not comply.

On April 25th, the House Oversight and Government Reform Committee subpoenaed Secretary of State Condoleezza Rice to testify about the forged documents used as evidence that Iraq was developing nuclear weapons. Rice publicly refused to comply, arguing that she was "not inclined" to comply. Two deadlines passed. The committee chairman claimed to believe she would eventually change her mind. She hasn't done so.

On June 13th the House Judiciary Committee subpoenaed former White House Counsel Harriet Miers and White House documents related to the US attorneys firings. The White House publicly refused to comply or to allow Miers to comply. The deadline passed.

Also on June 13th the Senate Judiciary Committee subpoenaed White House Political Director Sara Taylor in regard to the US attorneys firings. The White House wrote a letter to the committee chairman refusing to comply. The deadline passed.

On June 27th the Senate Judiciary Committee subpoenaed legal analysis and other documents concerning the NSA warrantless wiretapping program from the White House, from Vice President Dick Cheney, from the Department of Justice, and from the National Security Council.

................

[seemslikeadream]

1. inherent contempt

the will to do it

[Vincardog]

2. Send a note to aWoL "If you want your AG to even have a hearing comply with all the subpoenas

appoint a special prosecutor of our choice and lay off the BS 'Executive privilege' claims. Just because gw lead a life of excessive privilege does not mean that it followed him into office.

[cali]

23. Just heard Leahy on VPR

He has no intention of holding hearings on a new AG until the admin complies with his demands to know about JD actions under Gonzo, including warrentless wiretapping, torture and rendition.

[Name removed]

3. Deleted message

Message removed by moderator. Click here to review the message board rules.

[proud2BlibKansan]

4. YES!!!!

This would accomplish a couple of very interesting things as well. Congress Members frequently tell their constituents that they cannot impeach Cheney or Bush because they don't have solid evidence or time to dig it up. But Cheney and Bush have INDISPUTABLY refused to comply with subpoenas, which is established by precedent as an impeachable offense. Not only is no investigation whatsoever required, but none is even imaginable. These impeachments could take a day. Do one before lunch and one after. This is instant impeachment. Just add the will to do it.



Were one or more congress members to introduce such articles of impeachment, they would not come up for a vote right away. In the meantime, as they gained cosponsors and attention, the White House might just start complying with subpoenas. Certainly we know that when a serious movement in Congress to impeach Attorney General Alberto Gonzales picked up steam, there were results. Similarly, when Congress moved to impeach Nixon there were results. When it moved to impeach Truman there were results. When it promised never to impeach Ronald Reagan, as when it promised never to impeach George W. Bush, the results were deadly. Both failures left blood on the Democrats' hands and brought losses for Democrats in the next elections. It's hard to imagine why Democrats in Congress would want either of those things.

[L. Coyote]

10. U: "These impeachments could take a day. Do one before lunch and one after. "

Where there is a will to restore Democracy, there is a way!

Pelosi at 16:00 by 16:00! :rofl:

It really is this uncomplicated once the will is there. That is why we call it Democracy!

[proud2BlibKansan]

11. Yeah I love that part too

They don't come much smarter than David Swanson.

[creeksneakers2]

13. Bush and Cheney were not subpoenaed

The subpoena for documents was served on Bush's chief of staff. The subpoenas for testimony were served on members of the Bush Administration but not Bush or Cheney. So, Congress couldn't defend an argument that Bush and Cheney broke the law unless Congress went back to step one and subpoenaed Bush and Cheney, which would probably set off a court battle.

The last time I brought this up, another poster said that Bush broke a different law when he told others not to comply with the subpoenas. I looked up that law and whether or not Bush broke it would depend on some other legal issues. The law isn't settled on whether or not what Bush did fit the definition of "corruptly influenced" as required by the law. The other issues would be whether the subpoenas were lawfully authorized, and whether executive privilege protects the president. It would all probably end up in court before an impeachment vote.

While the fact that some subpoenas were disobeyed can't be disputed, the law could be. I could see the fight dragging on for a very long time.

[Usrename]

14. I think I am the poster that responded to that question.

If you recall, any denial by Bush that he "corruptly influenced" or "engaged in misleading conduct" in order to stifle the witnesses is considered an "affirmative defense" and therefore the burden of proof shifts to the accused to show that he was really just trying to get the witnesses to testify truthfully. I think you had questioned whether or not Bush had broken any laws in having his lawyer instruct these witnesses not to respond to Congress.

In any event, a completely different principle is addressed in the OP, with regards to the third article of impeachment against Nixon. In those days, it was claimed that Nixon was usurping the power of impeachment, which rests solely in the House, when he refused to comply with their subpoenas.

[creeksneakers2]

15. Why the Nixon case was different & other legal opinions

Nixon was subpoenaed for the tapes. Bush and Cheney have not been subpoenaed. I don't think the OP understood that.


As to what Bush has done -
The laws that come closest to applying are:

18 USCA 1505
18 USCA 1512

http://www.arnoldporter.com/docs/resources/Obstruction_Statutes.pdf


I don't believe a denial of corruptly influencing or persuading is an affirmative defense. Its an element of the statutes that come closest to applying, and the burden is on the prosecutor to prove it. The only case I can find that comes close to defining corruptly persuading or corruptly influencing is Arthur Anderson LLP v United States.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/544/696.html

From the case:

" Joining these meanings together makes sense both linguistically and in the statutory scheme. Only persons conscious of wrongdoing can be said to "knowingly ... corruptly persuad." And limiting criminality to persuaders conscious of their wrongdoing sensibly allows §1512(b) to reach only those with the level of culpability usually required to impose criminal liability."
END QUOTE FROM CASE

One element that Congress would have to prove is that Bush knew his actions were unlawful. All it would take to debunk that is a legal opinion Bush relied on that said his actions were legal. Arthur Anderson LLP v United States does not completely define corruptly persuading or influencing. The ruling only overturns the conviction against Arthur Anderson LLP for a faulty jury instruction. For the purpose of impeachment, the Bush White House and the Republicans would argue forever that what Bush did was not corrupt, and they'd probably have the stronger case.

If Bush broke the law when he told his staffers not to appear, we'd hear more about it and the Democrats would surely bring it up.

[Usrename]

16. I am only reading the actual statute:

§ 1512. Tampering with a witness, victim, or an informant

(e) In a prosecution for an offense under this section, it is an affirmative defense, as to which the defendant has the burden of proof by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant’s sole intention was to encourage, induce, or cause the other person to testify truthfully.

I'm reading this and wondering what the White House has that could possibly show that they are acting legally. When has executive privilege ever been considered for folks who have never even spoken to the president? The way I read this, they have to have some reason to think what they are doing is legal. What reason could that possibly be?

..and also..

(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—

I would argue that these witnesses have been misled. They have been told that they have responsibilities to the president that don't really exist. At least that would be my take on it.

In the Anderson case, it looks as though there was an existing document retention policy that was followed, and was not in question as to it's legality. I don't think there is any similar existing policy in this case that encourages contempt of Congress. Just the opposite, I would think.

[creeksneakers2]

17. The affirmative defense mentioned applies

to an accused who wished the witnesses to testify truthfully. Bush did not want the witnesses to testify at all. So I don't see that section applying.

The Bush argument would be that withholding the testimony was legal under executive privilege. The scope of executive privilege against Congress is not well defined by the law, so Bush can say he believes the law to be on his side.

[Usrename]

18. Right, Bush did not want these people to testify, and told them so.

So, in this case, for him to claim that he acted legally, the statute makes this an affirmative defense.

He would have "the burden of proof by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant’s sole intention was to encourage, induce, or cause the other person to testify truthfully."

I don't see how he can meet that burden.

[librechik]

5. Let alll your congresscritters know about Option #4--This could actually work!

snip

4.. Pull out the third article of impeachment passed by the House Judiciary Committee against Richard Nixon in 1974, the one charging him with refusing to comply with subpoenas, change a few words, and introduce new articles of impeachment against Rice, Cheney, and Bush.



Option #4 would not require that you believe the impeachments would succeed or that a trial in the Senate would result in conviction. It would only require that you desire people to comply with subpoenas.



This would accomplish a couple of very interesting things as well. Congress Members frequently tell their constituents that they cannot impeach Cheney or Bush because they don't have solid evidence or time to dig it up. But Cheney and Bush have INDISPUTABLY refused to comply with subpoenas, which is established by precedent as an impeachable offense. Not only is no investigation whatsoever required, but none is even imaginable. These impeachments could take a day. Do one before lunch and one after. This is instant impeachment. Just add the will to do it.



Were one or more congress members to introduce such articles of impeachment, they would not come up for a vote right away. In the meantime, as they gained cosponsors and attention, the White House might just start complying with subpoenas. Certainly we know that when a serious movement in Congress to impeach Attorney General Alberto Gonzales picked up steam, there were results. Similarly, when Congress moved to impeach Nixon there were results. When it moved to impeach Truman there were results. When it promised never to impeach Ronald Reagan, as when it promised never to impeach George W. Bush, the results were deadly. Both failures left blood on the Democrats' hands and brought losses for Democrats in the next elections. It's hard to imagine why Democrats in Congress would want either of those things.

snip


This could actually wrk!

[FreakinDJ]

6. Time to Impeach - Constitutional Crisis

Yep -

Send those letters before we loose the "Right" to do that too

[bananarepublican]

19. Seems like an iron-clad strategy to get to the bottom of a few things. n/t

[annabanana]

7. Oh hell yeah. . BACK up to the top of the greatest

with this article...

[FreakinDJ]

8. Has anyone drafted a letter demanding option #4

We need a simple form to fill out and demand Congress and Senate leaders to perform the job they were elected to do.

That is of course unless they have already given up our constitutional rights in the war powers act or the patriot act

[bleever]

9. K&R.

Great piece that deserves wide exposure.

[snappyturtle]

12. Such defiance...guess the WH thinks we'll forget ! K&R n/t

[LWolf]

20. The options:

<snip>

What options does Congress have?

1. Keep issuing subpoenas. Hope. Pray. Whine. Threaten. (This is the current strategy. For this and/or other reasons, Congress has the support of 18% of the nation.)

2. Attempt to hold individuals in contempt of Congress through the court system, with the only certain result being the wasting of many months on the process. (And we know Congress Members don't like to do anything that takes that long, since they keep telling us they don't have time for impeachment.)

3. Use a little-known procedure called inherent contempt to send the Sergeant at Arms to actually arrest people and lock them up for trial on Capitol Hill. (Most Congress Members have never even heard of this. House Oversight and Government Reform Committee Chairman Henry Waxman recently had to be told by constituents what it was and how it works. House Judiciary Committee Chairman John Conyers has threatened to use it but not done so. Given the spine shortage on the Hill, this seems very unlikely to happen.)

4. Pull out the third article of impeachment passed by the House Judiciary Committee against Richard Nixon in 1974, the one charging him with refusing to comply with subpoenas, change a few words, and introduce new articles of impeachment against Rice, Cheney, and Bush.

Option #4 would not require that you believe the impeachments would succeed or that a trial in the Senate would result in conviction. It would only require that you desire people to comply with subpoenas.

I'd go with option 4, myself. :D

[L. Coyote]

21. Better yet, impeach for crimes, then they have to answer the supoenas.

There is no executive privilege is a crime is alleged. not? Once alleged criminal conduct is under investigation, I believe the executive privilege screen is gone!

[LWolf]

22. There is no executive privelege for crimes

or for criminal investigations. Of course, I'd impeach first. I'm a supporter of house resolution 333.