If you can’t find a partner find a wooden chair

July 12, 2007

As expected, former White House counsel Harriet Miers ignored a congressional subpoena today, after her former colleagues told her she didn’t have to follow the law. The House Judiciary Committee had set up a chair for Miers’, which sat empty when the hearing was called to order.

As expected, former White House counsel Harriet Miers has failed to appear for today’s hearing of the House Judiciary Committee’s Commercial and Administrative Law Subcommittee. That’s given C-SPAN’s camera operators an opportunity to get the poignant shots that don’t normally happen in Congressional hearings. On several occasions, they’ve cut away from the members of the subcommittee to show the chair at which Miers would be sitting had she appeared, complete with a card on the witness table that reads “Ms. Miers.”

I appreciate the fact that we took a right turn at political norms a few years ago and have been heading towards Crazy Town ever since, but it’s worth remembering that congressional subpoenas aren’t optional. They’re not suggestions. They aren’t polite invitations, requesting that one please show up. They’re orders from the legislative branch of government, backed by the rule of law.

In response, a very annoyed congressional majority on the committee initiated contempt proceedings and ruled the White House’s argument invalid.

A House panel cleared the way Thursday for contempt proceedings against former White House counsel Harriet Miers after she obeyed President Bush and skipped a hearing on the firings of federal prosecutors.

Addressing the empty chair where Miers had been subpoenaed to testify, Rep. Linda Sanchez ruled out of order Bush’s executive privilege claim that his former advisers are immune from being summoned before Congress.

The House Judiciary subcommittee that Sanchez chairs voted 7-5 to sustain her ruling. If an agreement with the White House is not reached, the full Judiciary Committee could convene hearings and vote on whether to hold Miers, Bush’s longtime friend and former Supreme Court nominee, in contempt.

Of course, the flip side is that recent events probably suggest to Miers that the president won’t let loyal Bushies suffer legal consequences for criminal behavior.

As usual, House Dems are worried about the kind of precedent that is being set for people to blow off congressional subpoenas, while House Republicans (die-hard 28 percenters) are worried about protecting a failed president.

To Democrats, the issue was simple. Miers was legally obligated to show up, and she didn’t. As Chairman John Conyers (D-MI) put it, “Are Congressional subpoenas to be honored or are they optional?”

The Republicans on the committee responded with their usual accusations of Democratic overreaching and claims that the U.S. attorney firings investigation had uncovered no evidence of wrongdoing by the administration. But ranking member Chris Cannon (R-UT) also offered a more nuanced argument against proceeding with contempt proceedings — without “evidence of criminality” on the part of the White House (he cited the example of Nixon), the House would likely lose the battle in court. And such a loss, he feared, would hurt the House’s ability to investigate the White House in the future.

Rep. Conyers (D-MI) didn’t think it was so complicated: “If we do not enforce this subpoena, no one will ever have to come before the House Judiciary Committee again.”

Rep. Tom Feeney (R-FL), who made it clear during the hearing that he’s a big fan of executive privilege, interrupted to say that this was a unique circumstance, and that it’s “not every day” that a witness produces a letter from the White House saying that he/she can’t testify. “I don’t think it’s ever happened before,” he said.

To which Conyers replied dryly, “It happened yesterday in the Senate Judiciary Committee.”

Also keep in mind, this could get tricky if/when contempt proceedings against Miers continues. Earlier this week, the White House received a dubious memo from a corrupted Justice Department, which argued that “the President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committee.” Most qualified legal experts who aren’t on Bush’s payroll disagree and cite reality.

But more importantly, if Congress does hold Miers in contempt, the matter would go the Justice Department to uphold the law. Apparently, the Justice Department isn’t exactly on board with the idea.

Stay tuned.

Of course, the flip side is that recent events probably suggest to Miers that the president won’t let loyal Bushies suffer legal consequences for criminal behavior.

You should have had a link to Libby, Bush and Cheney all giving each other high-fives…

  • If this goes to the Justice Department and they take no action, then Congress will finally have all the ammunition it needs to impeach George Bush and Alberto Gonzales both. Let’s hope they take full advantage of it if it gets that far.

    Bush has shown that he’ll do a lot to help his minions avoid trouble, but he’s also shown that he’s willing to throw them under the bus if the danger to himself is too great. Even Office-Wife-In-Chief Harriet Miers might end up on the expendable list if she’s not careful.

    We’ll see how it plays out. The Dems are finally showing signs of life, it could be one heck of a fight.

  • […] it’s worth remembering that congressional subpoenas aren’t optional. They’re not suggestions. They aren’t polite invitations, requesting that one please show up. They’re orders from the legislative branch of government, backed by the rule of law.

    Fancy that Miers, Shrub’s preferred choice for the SCOTUS, doesn’t know enough law to know that…

  • If they cite her with inherent contempt, the US Attorney never comes into the picture. It takes only a simple majority to issue a citation of inherent contempt, and once issued, the Sergeant-at-Arms is tasked to take the individual into custody, and what amounts to a trial on the charge is held in the chamber.

    I think it is unconscionable that any member of the House or Senate would find the refusal to appear in response to a subpoena to be acceptable, regardless of what the individual member thinks about the reason for the subpoena being issued. There just is no way a Republican House or Senate would tolerate a witness refusing to appear, and at the risk of sounding like Bob Dole: I know it, they know it and the American people know it.

    Is it just me, or do the Republicans just seem, individually and as a group, to be not particularly smart about much of anything?

  • They shouldn’t hold just Miers in contempt, they should hold this White House, this president, in contempt of Congress for their interference and their plainly criminal and contemptuous behavior.

  • “die-hard 28 percenters”

    That should be “die-hard 26 percenters” now. See e.g. Atrios.

    Re sub poenas not being optional, it’s helpful to remember the literal meaning of the latin: “under penalty”.

  • If a contempt citation goes to Gonzales for enforcement, and he refuses to do anything, can’t that be used as reasonable grounds for impeaching Gonzales?

    Bush seems to be actively pushing for a constitutional crisis.
    Clearly part of this is that the White House follows the fascist “unitary executive” principle that the executive branch (plus whatever Cheney considers himself to be this week) rules and everyone else can go stuff it. Moreover, this is undoubtedly part of his documented pattern since childhood and college of going all out to win (going for all or nothing plays, fighting dirty and using intimidation, arguing the rules, arguing for do-overs, pushing into overtime or for extra rounds, and so forth). I assume that he also expects the Supreme Court to back him up in a crunch.

    What else is he trying to keep covered up, or keep us distracted from?

  • A citation for inherent contempt does not go to Gonzales or anyone at the DOJ – it is all handled within whatever chamber issues the citation.

    It hasn’t been used since 1934, but that doesn’t mean it isn’t an option.

  • “nice courts you have there, Mr. Bush. Sure would be a shame if you couldn’t get any more of your judicial nominees through”

  • Over at Slate, Bruce Fein does a nice job of arguing why the Executive Privilege claim is without merit based on the historical precedent of John Dean (and this was even before the WH failed to take steps to block Taylor’s appearance, and before Taylor spoke selectively – the combination of those two things fairly clearly constituting waiver).

  • Libra beat me to it. I, too, was thinking how ironic it is that Bush’s first choice as a Supreme is being used by him to thwart the Constitution.

    I’ve about given up hope that anything but the worst will happen between now and Jan. 2009. Bush isn’t going to be impeached because the Dems just won’t try. I understand the reasons, but the effect of inaction will simply allow Bush to safely finish out his second term pointing to the myriad of lawbreakers and liars he has fostered and protected, while raising the middle finger of his other hand to the Democratic congress and American people. When he goes, he’ll be grinning like a chimp. Arrogant, shameless and victorious. History will record that America rewarded the worst. president. ever. with two full terms in office. To me, that says much more about the state of the union than about Bush.

  • Harriet Miers is the first of many who should be brought before Congress in handcuffs. Libby should be made to serve his sentence. Bush, Cheney, Rove, Rumsfeld, Wolfowitz, Rice, Powell and Gonzales should be tried for treason.

  • Just impeach these people already. Start with Gonzales if he refuses to uphold the law.

  • Thanks Anne, and sorry, I was writing & handling a phone call while the earlier posts appeared, so I missed them.

    Homer’s link suggests three options: 1) seeking enforcement from the US Attorney for the District of Columbia, 2) using its own Sergeant-at-Arms to arrest the person in contempt (that’s the ‘inherent contempt’, or 3) pursuing the matter by a civil action in the federal courts.

    According to http://en.wikipedia.org/wiki/Contempt_of_Congress ‘inherent contempt’ proceedings happen only in the chamber involved (thus the Senate in this case). A report of a resolution of contempt can be issued by just the chairman and the ranking member (Leahy and Specter, so that could fail right there) or the entire committee (so it could still happen), and then has to be passed by the entire senate (do-able). The trial would be presided over by Cheny (that would be putting the fox in chaarge of tge chicken coop). Apparently it is not used because it is very-time consuming, and the punishment only lasts until the end of that session of Congress.

    From http://www.cleveland.com/news/plaindealer/index.ssf?/base/news/1184056509309400.xml&coll=2&thispage=2
    “Once the full House or Senate has a contempt citation, it must be debated by the full chamber like any other resolution. It is subject to the same filibuster and procedural rules as any other House or Senate resolution. It takes a majority vote to be approved. Once it is approved, the House speaker or the Senate president pro tem then turns the matter over to the U.S. attorney for the District of Columbia, “whose duty it shall be to bring the matter before the grand jury for its action,” according to the law.

    Is the U.S. attorney required to prosecute? Depends on whom you ask. The law says the U.S. attorney “shall” bring the matter to a grand jury. However, after the House voted 259-105 in 1982 for a contempt citation against EPA Administrator Anne Gorsuch, the Reagan-era Justice Department refused to prosecute the case. The Justice Department also sued the House of Representatives, saying its attempt to force Gorsuch to turn over documents interfered with the executive branch. The court threw the case out and urged negotiation between the executive and the legislative branches. The Justice Department did not appeal the ruling, and the Reagan administration eventually agreed to turn over the documents.

    When was the last time a full chamber of Congress, either the Senate or the House, voted on a contempt-of-Congress citation?

    1983. The House voted 413-0 to cite former Environmental Protection Agency official Rita Lavelle for contempt of Congress for refusing to appear before a House committee. Lavelle was later acquitted in court of the contempt charge, but she was convicted of perjury in a separate trial.

    What is the punishment upon conviction for contempt of Congress?

    Contempt of Congress is a federal misdemeanor, punishable by a maximum $100,000 fine and a maximum one-year sentence in federal prison.”

  • Send the Sergant at Arms to arrest her. Take her to an “undisclosed location” at the Capitol. Water board her.

  • This is setting yet another nightmarish precedent that King George and his Court of Brownshi(r)ts are above the law. What will stop King George from “ensuring Constitutional government” in the event of a national emergency? The U.S. Constitution is being substituted for the Oligarchy of King George with each passing moment.

    The Truth is out there in front of you, but they lay out this buffet of lies. I’M SICK OF IT AND I’M NOT GONNA TAKE A BITE OUT OF IT! DO YOU GOT ME?!

    Impeachment is the only option left. Please call your Representatives and Senators today and demand impeachment if you want your children to live in a free and open society governed by the rule of law.

  • Is it just me, or do the Republicans just seem, individually and as a group, to be not particularly smart about much of anything? — Anne @ 5

    They probably span the normal intelligence range, but their unquestioned fixation on the the rightness of their beliefs — which hardens in the face of contradiction — makes them act stupid. Beyond that, I’m not sure. Could be a psychological disorder or an ancient branch in the evolutionary development of homo sapiens.

  • What Curmudgeon said. I’m a level-headed guy, but I really think it is time to impeach Gonzales.

    On the merits, I think there’s plenty:
    1. he has given false or highly misleading testimony to Congress multiple times
    2. he endorsed the warrantless eavesdropping program even continuing after a court found it illegal
    3. he tried to trick a heavily sedated man into signing a legal document he wasn’t legally able to sign
    and so on…

    On the politics, it’s a little more tricky. You do need 67 votes to convict in the Senate which would be an uphill battle, though e.g. all the Democrats + the Republican Senators who are up for reelection in 2008 would be enough to do it. But even if Gonzales doesn’t resign first and it fails in the Senate, it probably still serves to further undercut the Bush administration and its backers. In retrospect, the Clinton impeachment actually worked out for the Republicans as without it Gore would likely have won in 2000. And impeachment of Gonzales would be more popular with the American people if not the punditocracy.

  • I don’t think it’s time to impeach Bush though. At a minimum, we have to go for Cheney first. We cannot take the risk that the Regent becomes President. I think Gonzales is the cleanest shot, at least for the time being.

  • First things first:

    Congressional subpoenas are NOT optional. She shows up, or she goes to jail.

    If “the people” hate it, they can vote out the Democrats next year. At some point you have to use the power, even if it puts the power at risk.

  • It seems las though George W. Bush is daring the Congress to do something extraordinary such as impeachment of himself, Cheney, and Gonzales to curb their obstruction of justice.

    Obviously, Bush/Cheney/Gonzales are definitely afraid that, if they do not obstruct justice, the Congress would definitely have grounds for impeachment. Congress should feel no hesitation to take the impeachment route if Bush/Cheney/Gonzales continue their obstruction of justice. The public, I’m sure, would then see the legitimation–not the politicization–of impeachment procedures if it comes to that. To do otherwise would be of great detriment to our democracy in the future.

    Let true democracy be restored to our shores!!

  • First, pardon the typo in my comment #23: “It seems las though …” should have read “It seems as though …”

    Second, I should emphasize that Bush/Cheney/Gonzales feel that if they do not continue to obstruct justice, Congress would definitely find hard evidence–from those past and present Bush administration insiders they subpeona and who do testify honestly and completely–to draw up articles of impeachment and proceed with such impeachment. The majority of Americans would then see the necessity for–not the politicization of– impeachment to ensure the future of our cherished democracy and the necessity for real checks and balances and accountability for future Congresses’ genuine oversight of future presidential administrations.

    Let true democracy be restored to our shores!!

  • “Obviously, Bush/Cheney/Gonzales are definitely afraid that, if they do not obstruct justice, the Congress would definitely have grounds for impeachment.” — Jesseaw @ 23

    If not impeachment, then grounds for dozens of perjury cases and openings into other wrongdoings, be they illegal or just scummy. Part of what we see in these hearings is that the loyal Bushies have woven such a tangled web that they can’t keep their lies straight — and they can’t afford to tell the truth. Imagine trying to testify and uphold the falsehoods previous witnesses have told in the US Attorney hearings!

    So, from Fielding’s perspective, the best course is to not allow anyone to testify. Either Congress takes it to court in a long, knock-down, drag-out process, or Congress gives up. It’s a lesson Fielding learned the hard way during Watergate. My theory, anyway.

  • [..] a dubious memo from a corrupted Justice Department, [..]

    Indeed so. You’ve got to give it to them, these scalawags at the White House sure seem to have known what they were up to.

  • N. Wells – it actually was the House where Miers failed to show up, so that is where the inherent contempt citation would be considered. It’s possible, if the Senate also has her under subpoena and she fails to show, that the Senate could also find her in contempt.

    I really think, at this point, that any option that requires the DOJ’s involvement is a waste of time – Gonzales is not going to play ball on a contempt finding when his own department is the one that issued the opinion that Miers had absolute immunity, and the USA for DC is not going to move the finding on to prosecution.

    The inherent contempt option is the only one that seems to have a chance at succeeding – and I can’t help thinking that if we could just get this whole thing to tip with one action that the president cannot find a way to weasel out of, the whole thing could come crashing down. I think the WH must sense this, too, and that is why they are going to the mat on everything.

  • I would love to see a contempt of Congress issued, but I have to say that the odds of it getting through this Senate are slim and none.

    The Republicans will do everything to stop it. They have no love of country, only a love of power.

    I’ve said it before: They are not shameless, They are Republicans.

    For them its party uber alles.

  • Anne, yes, my error, thanks for the correction.

    That’s good, given that Dems have a greater majority in the House and that given their shorter terms of office, congress-critters (including republican ones) are arguably more likely to respond to a groundswell of outrage, if one can be generated.

  • Hunter has a great post up at DailyKos on contempt with a excellent suggestion with respect to Fred Fielding.

    This is astonishing. That this would have to be explained — no, more than that, that this could even be argued — is baffling. The only explanation is that the White House knows full well it is violating the law, and is counting on political actions by their own party to block prosecution of the transparent offense.

    Harriet Miers, obviously, needs to be held in contempt of Congress. More to the point, since the Bush administration has indicated that the Department of Justice will as of now not enforce contempt charges brought by Congress, the House has no other option but to use its Constitutional powers of inherent contempt, and direct the Sergeant at Arms to enforce their subpoena by placing Miers in congressional custody.

    Despite what others may say, this isn’t a high stakes game. It isn’t a “game” at all. The power of Congress to subpoena witnesses and have them appear is an absolute Constitutional power, and not one that can be ignored. It’s high time for the White House legal team to understand where the boundaries of law are.

    As for Fred Fielding, I heartily recommend to the Judiciary Committee that they subpoena him next, in order for him to explain to them why he believes “executive privilege” is so encompassing as to apply not just to certain types of testimony and documents, but that it extends to individuals themselves, based solely on presidential say-so.

    So what do think Rep. Conyers? Will you be requesting Fred’s presence anytime soon?

  • #8 ‘ I assume that he also expects the Supreme Court to back him up in a crunch.’

    If that happens, the American people have got to take to the streets or the balance of powers becomes history. The masses will have to scare them(all of them, including SCOTUS) into compliance with the rule of law. Will the American people let the constitution be rendered a joke without a fight? (and it may be a real fight, if Bush declares martial law in response). If we don’t care enough to fight for the best of our legal heritage, we don’t deserve it. I doubt that a lot of the US military or bureaucracy would back Bush, but blackwater might.

    It’s back to the playground. The bullies keep pushing and if the people don’t fight back, we had best get fitted for kneepads.

  • “Of course, the flip side is that recent events probably suggest to Miers that the president won’t let loyal Bushies suffer legal consequences for criminal behavior.”

    Well but do Bush’s powers of pardon or commutation reach this case?

    (I’m not a lawyer but) from what I’ve read, a person may be jailed for contempt in order to compel testimony, not as punishment for a crime for which they have been convicted.

    And if the person has not been convicted of a crime (or misdemeanor), can the president pardon or commute, when there is no crime or sentence?

  • When are Republicans in Congress going to understand that they are giving away any power/authority that they have? They only like executivey privlidge/authority when a Republican is president. When it is a Democrate and it will be eventually, they had better remember how big a fan they were of executive privlidge. Sadly they don’t understand that it may be a while before the balance is restored after their eagerness to abdicate their role in government in the desire to to become George Bush’s lemmings.

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