Last week, both the House and Senate Judiciary committees approved the issuance of -- but have not yet issued -- subpoenas compelling the testimony of Karl Rove, Harriet Miers and others who are or were among George W. Bush's inner circle during the decision-making on the firing of the eight dismissed U.S. Attorneys. Bush, for his part, has signaled his intention to have his aides defy those subpoenas, saying he'd fight it out in court to the bitter end.
But what kind of battle can we expect over these subpoenas? How might such a fight turn out? What issues would be raised? And are the courts the only arena in which the questions might be settled?
The AP's Matt Apuzzo examines the risks:
President Bush has tried for years to reassert a White House right to keep secrets from Congress. Now he must decide how far he wants to go to keep aides from testifying about the firing of federal prosecutors.
If he claims executive privilege and the dispute ends up in court, the fight with Congress will be refereed by a judicial branch that recently has not been kind to the presidency in fights over subpoenas. Lawmakers, meanwhile, risk seeing a judge permanently curtail their power to summon presidential aides to Capitol Hill.
That's a high stakes game. So high, in fact, that it's precisely the sort of case the courts tend to punt, under the so-called "political question doctrine." Political questions are those the courts will -- at least initially -- refuse to decide, preferring to leave the outcome in the hands of the political branches (the executive and legislative), on the theory that the power to decide them resides more properly with those who derive their authority from the voters.
Indeed, Apuzzo's article illustrates the point with this comment:
"I don't think anyone would want this in court. If anything is to be politically settled, it's this one," said Louis Fisher, a Library of Congress specialist on constitutional and an expert on presidential powers.
Fisher's "anyone" could refer just as easily to any or all of the three branches. Both the executive and the legislature have substantial powers at risk, while the judicial branch would simply want no part in settling the question.
How do we know this about the courts? Because that's exactly what they did the last time such a case was brought. And that case is instructive today.
The last time the Congress actually voted to hold an executive branch official in contempt of Congress was in the 1982 case of EPA Administrator Anne Gorsuch Burford. Gorsuch (who was later remarried, to Bureau of Land Management head Robert Burford) was found in contempt by a House vote of 259-105 (with 55 Republicans voting in favor). The charges were, in keeping with practice in statutory contempt cases, referred to the U.S. Attorney for the District of Columbia for prosecution.
And a lightbulb switches on! The actual prosecution of contempt of Congress charges is the responsibility of a U.S. Attorney.
What an extraordinary piece of bad luck, given the current situation!
So now, obviously, the most recent case of contempt of Congress brought against a high-ranking administration official takes on added importance as precedent. Does it not? And just what happened in that case? (PDF)
The Justice Department, anticipating the House vote, moved quickly: "Immediately after the House vote and prior to the delivery of the contempt citation," the department chose not to prosecute the case. [Notes omitted]
But that's not all:
Instead, it asked a district court to declare the House action an unconstitutional intrusion into the President’s authority to withhold information from Congress.
Stanley S. Harris, responsible for bringing the case to a grand jury, listed his name on the Justice Department complaint and advised Congress that "it would not be appropriate for me to consider bringing this matter before a grand jury until the civil action has been resolved."
The Justice Department occupied an unusual ethical position. First it had advised Gorsuch to withhold the documents, and now it decided not to prosecute her for adhering to the department’s legal analysis. In court, the department argued that the contempt action marked an "unwarranted burden on executive privilege" and an "interference with the executive’s ability to carry out the laws." [Notes omitted]
So, what happened in court?
The court dismissed the government’s suit on the ground that judicial intervention in executive-legislative disputes "should be delayed until all possibilities for settlement have been exhausted." The court urged both parties to devote their energies to compromise and cooperation, not confrontation. [Notes omitted]
Dismissed. Because the case turned on a political question.
So Congress was right? Right? Not according to the Reagan administration:
Following the Gorsuch contempt, the Office of Legal Counsel wrote an opinion on May 30, 1984, concluding that as a matter of statutory interpretation and separation of powers analysis, a U.S. Attorney is not required to bring a congressional contempt citation to a grand jury when the citation is directed against an executive official who is carrying out the President’s decision to invoke executive privilege. [Notes omitted, and emphasis supplied]
Any questions, then, about what the current "administration" intends to do with respect to these subpoenas?
Up next: What the Congress can do about it, and which Members -- if any -- are thinking about how to deal with that conflict.