We haven’t quite reached the impasse, but as Roll Call reports today (sub. only) it’s clearly coming right around the bend.
The Senate Judiciary Committee’s effort to land presidential adviser Karl Rove as a witness runs headlong into the Bush White House’s well-established reluctance to subject high-level staffers or internal documents to Congressional scrutiny.
But intense political pressure surrounding the U.S. attorneys scandal — in which Rove has become a prominent player — could overwhelm the administration’s opposition.
Bruce Fein, a former associate deputy attorney general under Reagan, said the legal terrain is unclear. “The general rule has been as a matter of custom, the Congress will desist from asserting the subpoena power to compel the president and his aides” to testify, Fein explained. “It leaves the legal terrain very murky.” He added, “Certainly, there is no outstanding Supreme Court or other court of appeals precedent that says Congress cannot compel Karl Rove to testify.”
Chances are, White House attorneys and Senate Dems will try to work on some kind of arrangement, in which Rove (and Miers and others) would answer the Judiciary Committee’s questions in a closed meeting. Committee Chairman Pat Leahy (D-Vt.), however, doesn’t seem keen on the idea, and may prefer subpoenas. It would likely leave the White House with three choices:
1) Honor the subpoena and testify under oath;
2) Ignore the subpoena and see what happens;
3) Challenge the whole effort in court.
No one, including White House officials, seems to know which course the Bush gang would take.
Option #1 seems the least likely. Bush, Cheney, Rove, & Co. have never been fond of cooperation. Given that Rove might be put in some unpleasant positions, and might be compelled to take the 5th, honoring subpoenas seems unlikely.
Option #2 is fraught with complications. As Fein told Roll Call, U.S. attorneys are supposed to enforce subpoenas. A subpoena from the Senate Judiciary Committee is not legally different from a court subpoena — ignoring it has legal consequences.
Option #3 seems more likely, and as Ezra argues, is the obvious pick for this White House.
Democrats are determined to get Gonzales and Rove under oath and before committee; Bush is determined — or so it seems — not to put him there.
What’s not clear to me, though, is what Congress can actually do. The Bush administration has nothing to lose by throwing this to the Courts. They’re already wildly unpopular, so another public image hit will hardly be noticeable. Their agenda is totally stalled, so it’s not as if they’ll lose momentum. The White House isn’t putting forth a successor, so they’re not trying to protect anyone’s political career. In the end, the administration is in such total disrepute that there’s scarcely anything more that Congress can take from them. What sort of leverage does the Senate actually have?
One should generally be cautious about throwing such words around, but impeachment is probably an option. White House officials may have engaged in criminal conduct, there’s evidence Justice Department officials lied under oath, and legitimate questions have been raised about obstruction of justice. The Senate wants answers. If they subpoena White House officials, and the president refuses to cooperate, it’s hardly inconceivable that lawmakers would at least consider the only option available at that point, which would be impeachment.
One argument not available to the Bush gang is precedent. Republican congressional investigations in the 1990s prompted senior Clinton White House officials to answer all kinds of questions, under oath, in public hearings. Everyone from Clinton’s Deputy Chief of Staff, to staff secretary, to White House counsel all agreed to provide testimony. They, of course, had nothing to hide and had done nothing wrong.
For more, Mark Kleiman explores the possibility of the White House claiming “executive privilege” to fight a subpoena (and possible impeachment).
Just as an aside, am I the only one who suspected that a constitutional crisis was inevitable with these guys running the White House?