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OK, so the subpoenas have been issued:

The Senate subpoenaed the White House and Vice President Dick Cheney's office Wednesday, demanding documents and elevating the confrontation with President Bush over the administration's warrant-free eavesdropping on Americans.

Besides issuing the subpoenas, the Senate Judiciary Committee also is summoning Attorney General Alberto Gonzales to discuss the program and an array of other matters that have cost a half-dozen top Justice Department officials their jobs, committee chairman Patrick Leahy announced.

What happens if the White House and the VP tell Congress to go Cheney itself?

Essentially, the Senate's options for dealing with non-compliance are:

  1. Move to hold the targets of the subpoenas in statutory contempt of Congress
  2. Move to hold the targets in inherent contempt of Congress
  3. Extend the deadline for compliance and make threats regarding either #1 or #2 above
  4. Come to some negotiated settlement with the "administration" -- i.e., closed door, no transcript testimony, limited document release, etc.
  5. Do nothing, complain loudly about obstructionism, stonewalling, and lawlessness, and hope that voters elect Democrats in 2008, because Republicans are so nasty
  6. Ask the House to impeach

That's really about it. Most likely outcome? If history's any guide, the answer lies somewhere in the neighborhood of #4. Although it should be said that history's never really been any kind of a guide for this "administration." But there's always a first time for everything, and no doubt when backed into a corner, the White House gang will be depending on the quasi-precedent of the negotiated settlement to save its bacon (or at least allow them to futz around long enough to run out the clock and slip out the back door in January 2009).


Well, statutory contempt of Congress is prosecuted at the discretion of the U.S. Attorney for the District of Columbia. And we know where the U.S. Attorneys' offices are at these days. But has the U.S. Attorney ever declined to prosecute such a case? Yes it has: EPA Administrator Anne Gorsuch, during the Reagan administration.

How about inherent contempt? Well, that takes the Justice Department out of the loop. But it's a daring move, involving trying the contemnors at the bar of the Senate, and possibly arresting and imprisoning them on the direct authority of the Senate and its Sergeant at Arms. Has it ever been done? Yes it has, though the last time was over 70 years ago.

Extended deadlines, negotiated settlements and doing nothing all carry their own peculiar problems, mostly political. Will the executive branch ever take the legislative branch seriously if they don't hold the line? Will voters take Congress seriously? Will they be angry? Grateful? Indifferent? And what will future presidents think they're likely to face if this Congress lets this president slide?

And finally, impeachment. We know the problems, and don't need to list them again. But is this really an impeachable offense?

(More after the jump.)

Yes it is:

Article 3

In his conduct of the office of President of the United States, Richard M. Nixon, contrary to his oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives on April 11, 1974, May 15, 1974, May 30, 1974, and June 24, 1974, and willfully disobeyed such subpoenas. The subpoenaed papers and things were deemed necessary by the Committee in order to resolve by direct evidence fundamental, factual questions relating to Presidential direction, knowledge or approval of actions demonstrated by other evidence to be substantial grounds for impeachment of the President. In refusing to produce these papers and things Richard M. Nixon, substituting his judgment as to what materials were necessary for the inquiry, interposed the powers of the Presidency against the the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.

In all of this, Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States.

Wherefore, Richard M. Nixon, by such conduct, warrants impeachment and trial, and removal from office.

Adopted 21-17 by the Committee on the Judiciary of the House of Representatives.

Just wanted to remind everyone of that.

Get your popcorn, and send your Congresscritter a note of encouragement. The options going forward are limited, and they're going to need to stiffen their spines for a long fight if they're going to offer any serious resistance to the Bush "administration's" vision of the New Imperial Presidency.


Pelosi was asked what was most important about regaining majority status. "Subpoena power," she said.

The. Most. Important. Thing.

Let's see how we do it.

Originally posted to Daily Kos on Wed Jun 27, 2007 at 06:04 PM PDT.

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Comment Preferences

  •  Jeffrey Taylor, however, is a PATRIOT Act... (57+ / 0-)

    ...appointment, which, with the new law on appointment of U.S. Attorneys, means he's out of office in 120 days.  If the administration can't get a replacement through the Senate (gee whiz, it would have to go through the Judiciary Committee), one will be appointed by the chief judge of the U.S. District Court for the District of Columbia, Thomas F. Hogan, who is a fair-minded man.

    I wonder if this has figured into Leahy's calculus.

    Click here and here for the latest on the scandal in the Civil Rights Division.

    by IceJustIce on Wed Jun 27, 2007 at 06:04:27 PM PDT

  •  I think they're laying the groundwork (45+ / 0-)

    It looks to me like Reid and company are very slowly and carefully working up to establishing evidence of actual illegal actions by Cheney.

    Let's hope it works.

    "We already won the war, it's the occupation that's killing us."

    by cal in cali on Wed Jun 27, 2007 at 06:06:11 PM PDT

  •  I wonder how much of this will devolve (12+ / 0-)

    into 'he said, she said' truthiness over the interpretations of these documents.

    Lately, I'm so jaded about the process, I doubt much will come out of it. But I'm going encourage my two Democrats in the House [both are quite progressive[, if it gets to their level.

    Something tells me #5 is going to be the final result of all this, or maybe I just need to go have a drink.

  •  What's up with Condoleezza Rice? (34+ / 0-)

    Didn't they issue her a subpeona, and isn't she overdue? If Congress has done anything (including complain), I haven't heard about it.

  •  Well, well. Let's hope they don't cave this time. (11+ / 0-)

    Though here, if history is a judge, recent history at that, one's optimism must be tempered.

    Freedom is merely privilege extended unless enjoyed by one and all -9.50, -5.74

    by redstar on Wed Jun 27, 2007 at 06:06:35 PM PDT

  •  What about Kavanaugh? (5+ / 0-)

    If it turns out he lied during confirmation, that is certainly impeachable.

    Maybe we start with Kavanaugh, then Gonzales, then Cheney?

  •  Subpeonas? Ha. President Cheney wipes his butt (24+ / 0-)

    with those, he'll actually be glad to get them since he's used up the Constitution for the same purpose.  

    "Our knobs go up to 11."

    by Cartoon Peril on Wed Jun 27, 2007 at 06:08:22 PM PDT

  •  What's the goal here? (1+ / 0-)
    Recommended by:
    buckhorn okie

    Don't get me wrong, I support the issuance of subpoenas.  But you laid out six options, and it's impossible to decide which one is best without knowing what we want to achieve.  If the goal is actually to get the documents, then the only way to do that is through some kind of court order.  Not even impeachment will cause Bush-Cheney to release documents (particularly if there are not enough votes to convict.)

    •  Don't they have to cooperate (12+ / 0-)

      with an Impeachment hearing? Isn't executive privilege out the window in an Impeachment investigation?

      It sure as hell was with President Clinton's Impeachment. Jesus, President Clinton couldn't even claim "executive privilege" on his own damned penis!

      I would think that if they refused to cooperate, it would only serve to enrage a nation of people that already wish his presidency were over. Something like 59% of the nation strongly disapproves of bush RIGHT NOW.

      Just what do you think would happen if they pulled this shit during an Impeachment investigation???

      "It is through disobedience that progress has been made, through disobedience and through rebellion." Oscar Wilde, 1891

      by MichiganGirl on Wed Jun 27, 2007 at 06:34:32 PM PDT

      [ Parent ]

      •  I think they wouldn't care (3+ / 0-)
        Recommended by:
        buckhorn okie, MrJersey, deepeco

        They MIGHT be willing to negotiate to avoid impeachment by the House, if they care enough about their "legacy."  But once the House impeaches, we've played all our cards so long as there are enough Republicans in the Senate that will vote against removal from office.

      •  Not impeachment. (7+ / 0-)

        the relevant case, US v. Nixon, has a few things to say on the matter.

        Wikipedia sums up some salient points...

        The unanimous decision held that the Supreme Court has not only the power established in Marbury v. Madison to rule a law invalid for conflicting with constitutional provisions but also power to decide how the Constitution limits the President's powers; that the Constitution provides for laws enforceable on a president; and that executive privilege does not apply to "demonstrably relevant" evidence in criminal cases.

        but inevitably misses a thing or two, from the case, emphasis mine...

              4. Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. See, e. g., Marbury v. Madison, 1 Cranch 137, 177; Baker v. Carr, 369 U.S. 186, 211 . Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the confidentiality of [418 U.S. 683, 685]    Presidential communications is not significantly diminished by producing material for a criminal trial under the protected conditions of in camera inspection, and any absolute executive privilege under Art. II of the Constitution would plainly conflict with the function of the courts under the Constitution. Pp. 703-707.

             5. Although the courts will afford the utmost deference to Presidential acts in the performance of an Art. II function, United States v. Burr, 25 F. Cas. 187, 190, 191-192 (No. 14,694), when a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality, the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice. Pp. 707-713.

        So, the good news is, executive privilege is not absolute, and can be inapplicable against a subpoena in a criminal matter. Isn't that dandy? Not to be the Cheney in the punchbowl, but am I the only one that sees the administration's immediate response being to call it an urgent matter of national security? It's the one way out that the court left open, and they've been using it for everything else, so what the hell?

        We've still got one hell of a fight ahead of us. I hope we've got the stones for it. Impeachment might help insofar as it would make the "obstruction for obstruction's sake" somewhat more obvious, but I don't think it changes anything legally.

        The lone and level sands stretch far away. -Shelly

        by justme on Wed Jun 27, 2007 at 08:47:58 PM PDT

        [ Parent ]

    •  If... (3+ / 0-)

      ...Bush/Cheney ignore the Judiciary's "subpoena duces tecum" (order to produce documents), then they request a Special Prosecutor and file a petition with the Federal District Court. If they keep refusing to obey, then it will probably end up in the SCOTUS' lap. And according to the 1974 precedence of U.S. v. Nixon, the SCOTUS would be hard-pressed to over-turn established precedence-no matter how packed the court is in Bush's favor. No matter which way it goes, though, the Congress still has the impeachment option. Always has. Always will.

      "Our past patriots are spinning in their graves. Did they all die for this tyranny?" Change Course. Change Captains. Change crews. But save the ship!

      by ImpeachKingBushII on Wed Jun 27, 2007 at 08:47:27 PM PDT

      [ Parent ]

    •  The goal, in my book, (5+ / 0-)

      is to give them the necessary rope, knot attached. They can't possibly comply with these subpoenas without completely screwing themselves. They will stonewall and obstruct until they finally give Congress enough to impeach. Yay</irony>.

      Cheney first, guys. Cheney first.

      The lone and level sands stretch far away. -Shelly

      by justme on Wed Jun 27, 2007 at 08:52:27 PM PDT

      [ Parent ]

  •  I'm Convinced, INHERENT COMTEMPT Is The ONLY Way (30+ / 0-)

    to go. I'll be disappointed w/ anything else.

    There's really no downside at this point in doing this. It's only a matter if they have the guts.

    The publicity alone for doing it would be worth weight in gold. It would be HUGE if they sent someone for Gonzo and dragged him out in cuffs, and threatened the same for Chimpy & Cheney.

  •  is this the first FP impeachment diary? (13+ / 0-)

    or just kinda sorta related?
    I'm wondering whether to take it as a bellwether ?

  •  Create a PR office, (12+ / 0-)

    like Tony Snow, and hammer it every day

    If you tell the truth, you don't have to remember anything. --Mark Twain

    by Desert Rose on Wed Jun 27, 2007 at 06:12:04 PM PDT

  •  I predict #5. Do nothing. (4+ / 0-)
    Recommended by:
    praedor, redstar, fat old man, Nimbus
  •  please dear god (or H. Reid or N. Pelosi) (10+ / 0-)

    Don't let it be #5. Show some spine, per favore. Pretty much everybody outside of DC cocktail parties is in your side.

    Do nothing, complain loudly about obstructionism, stonewalling, and lawlessness, and hope that voters elect Democrats in 2008, because Republicans are so nasty

    •  I hear ya (4+ / 0-)

      (not that I'm god, cause I'm not, cause then I wouldn't exist, and I am here to tell you that I most certainly do!)

      I am highly suspicious that El Numero Cinquo is the likely outcome after having witnessed the cave-in over the Iraq supplemental spending bill.

      However, if the subpoeanas are defied or only partially complied with (as a way to stall for time) I would think that as an institution Congress would have to act or risk becoming "quaint" in the sense that Alberto Gonzales likes to use that word.

      Bush repealed Godwin's Law with a Signing Statement.

      by Mad Kossack on Wed Jun 27, 2007 at 06:34:48 PM PDT

      [ Parent ]

  •  Inherit Contempt- A Daring Move. (8+ / 0-)

    That sounds about right to me. If we are ever going to reclaim what we lost when we handed Bush his war money, we damn well need to be daring. If not now, when?

  •  IMO, Congress is doing the right thing (13+ / 0-)

    They have drawn a bright line in the sand. Unlike some issues that potentially could serve as a basis for impeachment, this leaves no room for debate.  Either the administration complies or it does not.  Failure to comply is grounds for impeachment. No opening for Bushco to toss in the national security monkeywrench. Just a clean, tight case for impeachment. Go Senators!

    Forewarned, forearmed; to be prepared is half the victory. ~ Cervantes

    by Deep Harm on Wed Jun 27, 2007 at 06:13:52 PM PDT

  •  Go time. (1+ / 0-)
    Recommended by:
    Deep Harm

    Photo Sharing and Video Hosting at Photobucket

    Once in awhile you get shown the light in the strangest of places if you look at it right...

    by Glic on Wed Jun 27, 2007 at 06:14:45 PM PDT

  •  Horse on the Senate anyone? (6+ / 0-)

    That's about what George and Dick will think about it.
    I say impeach. This is EXACTLY what it was created to challenge. Our nation's founding fathers and the dream they had demand it. The next generation of Americans deserve it.

    "Its a grave digger's song, Praising God and State. So the Nation can live, So we all can remain as cattle. They demand a sacrifice..." -Flipper

    by Skid on Wed Jun 27, 2007 at 06:16:40 PM PDT

  •  Ds will go for Door #5, meanwhile neocons are (1+ / 0-)
    Recommended by:
    Mind That

    planning (or at least hoping for) something like this stateside or maybe something like this overseas.

    "Our knobs go up to 11."

    by Cartoon Peril on Wed Jun 27, 2007 at 06:17:45 PM PDT

  •  inherent contempt (6+ / 0-)

    Inherent contempt sounds like the best option to me. It's daring and it puts the administration on notice.

    My fear, though, is that the Bush administration will challenge the legality of such a move by the Senate and appeal it all the way to . . . you guessed it . . . the entity that installed King George in the first place, also known as the Supreme Court.

  •  Anyone see Olbermann tonight? (27+ / 0-)

    Jonathan Turley was on and basically he says that the Administration can try to claim executive privilege but they may be running into trouble with that one. Leahy can make the case that this is a criminial charge they are basing their subpoena's on and you can't claim executive privilege in this case. I don't think even this Supreme Court will go along with the Administration on this one.

    There's a reason why the White House counsel recently hired 9 more attorneys. They're in deep doo-doo and they know it.

    The only life that matters to a conservative is that which can't talk back.

    by cls180 on Wed Jun 27, 2007 at 06:22:34 PM PDT

  •  barking up the wrong tree (7+ / 0-)

    I don't think that, with the president and the vice president, we are looking at the whole "contempt charges with the DC USA" route.

    That might be true for Rove, Miers, and other such appointees and functionaries, but refusal to comply with a subpoena by the president or the vice president (or possibly, the Attorney General) is a whole different ball game.

    The DC USA is NOT the person who would handle that. No, this is a matter of constitutional law involving the president and the Congress, and the Court of first jurisdiction for such a dispute is the Supreme Court. It would go directly to the  Supreme Court, and it would take precedence over anything else. And the Chairman doesn't need to go to a USA, he can file the case himself on behalf of the US Senate, or on behalf of the whole Congress.

    This is not a case of a minor legal dispute over policy. It is an investigation of a CRIME. I would be VERY surprised indeed if the Supreme Court would not order the documents to be turned over immediately.

    Either I'm right, or the fundamental jurisdiction of the Supreme Court somehow doesn't apply.

    •  SCOTUS will not get involved (2+ / 0-)
      Recommended by:
      greenearth, SouthernFried

      on political question grounds.  It is a long standing doctrine the the Supreme Court will not interpose itself between Congress and the President on issues of constitutional disagreement between the legislative and executive branches.

      This will go nowhere in any court except the court of public opinion.

      Dear Mr. President, There are too many states nowadays. Please eliminate three.
      P.S. I am not a crackpot.
      /> -Abe Simpson

      by fromer on Wed Jun 27, 2007 at 06:34:29 PM PDT

      [ Parent ]

      •  politely, you're wrong (6+ / 0-)

        It is not a "political question" whether the president must comply with an oversight subpoena for information in an investigation of thousands of FELONIES by the president and the vice president.

        That is not a "political question" at all.

        •  Actually, it is. (5+ / 0-)

          It's dead-on political, and the courts will want it settled by people accountable to the people via elections.

          •  impeachment Kagro X? (5+ / 0-)

            I agree, BUT, I think the path is not through contempt charges winding through district court, appeals and SC and terminating sometime after Bush leaves office.

            Rather, I think the path to impeachment lies through a district court expediting the matter to the Supreme Court, and the SC ordering compliance with the subpoena after being given evidence that the Administration may have committed serial and mass felonies as POLICY.

            That could happen VERY quickly, as it did with Nixon. Remember, a federal judge already ruled the wiretapping program was illegal and unconstitutional.

            A few weeks ago, the DCI said that the president's authority to carry on such programs was an inherent constitutional power, only a few months after the Attorney General asked an Appeals court to drop the above-mentioned case, since, he claimed, they weren't doing it anymore. Needless to say, the DCI's comments indicate Gonzales was LYING to the court, and to Congress when he made those assertions.

            I made a point of calling Arlen Specter and Patrick Leahy to point that out.

        •  It's my understanding (2+ / 0-)
          Recommended by:
          Kagro X, litigatormom

          that a conflict between Congress and the President over the scope of authority that one has over the other is exactly what the legal doctrine known as "Political Questions" is meant to address.

          "political" doesn't mean who's leading at the polls and in the spin room, it means that the Court lacks clear judicial norms by which to adjudicate, AND/OR the issue touches upon allegations of constitutional violations by one branch of the government.

          I don't see how the WH refusing to honor a congressional subpoena doesn't involve congress alleging to the court that the WH has violated the constitution by its non-compliance.

          Dear Mr. President, There are too many states nowadays. Please eliminate three.
          P.S. I am not a crackpot.
          /> -Abe Simpson

          by fromer on Wed Jun 27, 2007 at 06:54:55 PM PDT

          [ Parent ]

          •  It's the criminal angle that makes it different (1+ / 0-)
            Recommended by:

            If it were a subpoena to comply with oversight requirements and not an investigation of CRIMES, I would agree with you.

            The Congress already has a court ruling that the wiretapping program is criminal and unconstitutional.

            •  Neither "Political" nor "Legal" Are Objective (1+ / 0-)
              Recommended by:

              It' a "criminal" matter only if the Supreme Court decides the Executive must conform to the Congressional subpoenas. However the Court can decide this is a "political" dispute between "coequal" branches of government. Point being, there is no "objective" character of this dispute.

            •  not really (0+ / 0-)

              COngress doesn;t investigate crimes, the executive does.

              Ultimately, Congress would be asking the S.Ct not to enforce its subpoena (SCTOUS doesn't have the authority to enforce anything), but to rule that the Congressional subpoena has effect.

              This leads to another standing obstacle: redressability.  If the WH position is that Congress has no authority to subpoena in this case, what would a S.Ct. ruling saying otherwise accomplish?  The Court's would be issuing an advisory opinion siding with Congress (presumably, but with these guys, who knows), knowing in advance that the opinion would not be enforced.  And the court for 200 years has said they aren't in the business of issuing advisory opinions.

              Sorry, but if Congress wants the WH to pall ball, the Dems are going to have to grow a set, and start impeachment investigations. There's no passing the buck on this one.  Congress is just going to have to decide that leadership is part of its job description.

              Dear Mr. President, There are too many states nowadays. Please eliminate three.
              P.S. I am not a crackpot.
              /> -Abe Simpson

              by fromer on Wed Jun 27, 2007 at 07:53:43 PM PDT

              [ Parent ]

      •  the scotus might change it's mind... (0+ / 0-)

        if not ruling would lead to riots in the streets of a lot of american cities as it SHOULD to protect all that is good and holy.

  •  It is time already for impeaching (1+ / 0-)
    Recommended by:
    Why the hell are our Democratic leaders so afraid of that?

    Freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Martin Luther King, Jr.

    by eaglecries on Wed Jun 27, 2007 at 06:28:09 PM PDT

    •  The Legislative branch is not the fastest (0+ / 0-)

      of the three, if you haven't figured that out.  Why do you think the founders felt we NEEDED an Executive branch?

      Unfortunately, that also means that it takes them awhile to get off the pot.  So to speak.

      Happy little moron, lucky little man. I wish I was a moron, my God, perhaps I am! -- Spike Milligan

      by polecat on Wed Jun 27, 2007 at 06:31:35 PM PDT

      [ Parent ]

    •  It's not a question of fear (0+ / 0-)

      It's a question of whether something that currently can't be done can at some point be acheivable. When and if that happens, there may be a move. I think that, if the Iraq situation continues to stay the way it is and the Congress demands changes to the policy, then an impeachment could happen if Bush refuses to make any changes. But all this stuff, Replublicans eat this for breakfast. Without a bipartisan majority, there will be no impeachment. I get tired of saying this, but it seems that people here just can't get it. That's why I like the inherent contempt. I didn't know it existed, but it seems like a pretty good tool. Theatrically nice too.

      Ambition is when you follow your dreams. Insanity is when they follow you.

      by Batfish on Wed Jun 27, 2007 at 07:38:52 PM PDT

      [ Parent ]

  •  "Although (1+ / 0-)
    Recommended by:

    it should be said that history's never really been any kind of a guide for this administration."

    I feel like every day is a magic 8 ball with these guys.

    I'm a cipher, wrapped in an enigma, smothered in secret sauce.

    by UltraMegaTron on Wed Jun 27, 2007 at 06:28:54 PM PDT

  •  we need to move this to the House (0+ / 0-)

    Senate procedure allows Republicans to tie up any contempt efforts, with McConnell and gang bleating about 'political witchunts' and objecting to the dozens of UC requests it would likely take to get this done.

  •  Hold the line. Do #1, then #2 (4+ / 0-)

    And if they're still obstructing, then you'll finally have to resort to #6.  That sounds like Conyers.  (A very smart man, IMHO.)  This whole subpeona thing is about that -- force a series of blatant, obnoxious, PUBLIC, defiant, moves by the Administration.

    Then, try to nail them on contempt for it.

    Then, nail the AG on it if he refuses to comply.

    Then, nail his boss.  (whichever one that is.)

    Happy little moron, lucky little man. I wish I was a moron, my God, perhaps I am! -- Spike Milligan

    by polecat on Wed Jun 27, 2007 at 06:30:21 PM PDT

  •  either we are willing to throw the criminals out (11+ / 0-)

    or we are aiding and abetting them.

    There is no choice "C"

    Dear Mr. President, There are too many states nowadays. Please eliminate three.
    P.S. I am not a crackpot.
    /> -Abe Simpson

    by fromer on Wed Jun 27, 2007 at 06:30:42 PM PDT

  •  Another Option (4+ / 0-)
    Recommended by:
    justme, Glic, word is bond, adrianrf

    Zero out their budgets until the testimony is forthcoming.  No money for the executive office of the President, no money for Cheney, no money for Abu G's office (but still fund the rest of the "Justice" department), no money for the White House press office.  And, best of all, no confirmations (indeed no hearings on the confirmations) of ANY Article III judges till the testimony is forthcoming.

    This aggression will not stand, man.

    by kaleidescope on Wed Jun 27, 2007 at 06:33:56 PM PDT

  •  It will not be a long fight at all (2+ / 0-)
    Recommended by:
    TheMomCat, adrianrf

    As I said in the previous comment, this refusal to comply with a Congressional subpoena by the president or the vice president is a case of first jurisdiction for the Supreme Court(less sure about the Attorney General or the NSC or the NSA).

    If we go that route, the SC will drop everything for a case like that. It will take precedence over everything else. It will be decided immediately. We could have an order by the SC to comply within a month.

    Depending on what happens next, impeachment could come to the fore very quickly. It did for Nixon.

    •  I don't think so. (2+ / 0-)
      Recommended by:
      mataliandy, TheMomCat

      I don't think there's any original jurisdiction for the Supreme Court in this case. It may take it up in an expedited review, but it doesn't go directly to them.

      The district court will have to agree to expedite it first, and then give the Supreme Court something to grab onto if they want it. But I don't think any court wants it.

      When Anne Gorsuch faced contempt charges, the district court didn't want anything to do with it, and dismissed the case, telling the political branches to work it out, and only to come back later if they couldn't.

  •  Can't they also send the Seargent at Arms to (2+ / 0-)
    Recommended by:
    Meteor Blades, adrianrf

    go collect the documents, armed of course. If the Exec refuses, then this all come to a head, and I think even the most ignorant American can figure out who is on the wrong side here.

    17. Ne5

    In chess you may hit a man when he's down -- Irving Chernev, on Przepiorka v. Prokes, Budapest, 1929

    by Spud1 on Wed Jun 27, 2007 at 06:39:25 PM PDT

    •  No need to do that (3+ / 0-)
      Recommended by:
      OLinda, xanthippe2, adrianrf

      As I said above, the premise of the diary is wrong.

      This is not a case for the DC USA.

      It's a case that would fall under the jurisdiction of the Supreme Court. The SC is the court of first jurisdiction for such matters. No district court. No Appeals court. No running out the clock.

      The Supreme Court would take this case immediately and decide it immediately.

      Check the history on Nixon. That's exactly what happened with the tapes. Congress subpoenaed the tapes in June 1974. Nixon refused to give them up. He offered redacted transcripts. The Congress went to the SC, and they took it up immediately, decided it immediately, and ordered Nixon to turn over the tapes. 15 days after that SC order, with impeachment articles headed to the House floor, Nixon resigned. It happened that fast.

      •  If that's the case, (0+ / 0-)

        we're really screwed.

        •  I posted this to another diary: (3+ / 0-)
          Recommended by:
          mataliandy, Miles, corvo

          Our own SCOTUS is now stacked with memebers that understand their role, and it isn't to overturn Roe v. Wade. It is to ensure that corporations continue to enjoy unfettered access to making a profit, no matter what the consequences.

          Nearly every dictatorship has had the backing of its own courts - this gives them the air of legitimacy. Americans have some strange idea that a dictatorship can't happen here, but then I suppose this is common with most peoples.

          It doesn't matter how tortured the logic that the SCOTUS will use, corvo has it correct: we are screwed, becasue there is no way they will rule against their masters. As weird as this will sound, there is no John Ashcroft amongst the 5 conservative activist judges.

          17. Ne5

          In chess you may hit a man when he's down -- Irving Chernev, on Przepiorka v. Prokes, Budapest, 1929

          by Spud1 on Wed Jun 27, 2007 at 07:16:59 PM PDT

          [ Parent ]

        •  See My Response Below: Turn Off the Lights! (2+ / 0-)
          Recommended by:
          mataliandy, adrianrf

          If the Supremes do as you fear, which I do not doubt, it is time for them to be defunded. Even the Supreme Court "won" during the Court packing attempt in the Roosevelt administration, the bastards got the message and began resigning.

      •  Jaworski (0+ / 0-)

        There was a special prosecutor investigating the case, Leon Jaworski. I just googled to refresh my memory. Jaworski "took it to the Supreme Court."


        The new Special Prosecutor, Leon Jaworski, who had been appointed by the Justice Department, pursued Nixon's tapes all the way to the U.S. Supreme Court. On July 24, 1974, the Court unanimously ruled that Nixon had to surrender the tapes.

        On Saturday, July 27, the House Judiciary Committee approved its first article of impeachment charging President Nixon with obstruction of justice. Six of the Committee's 17 Republicans joined all 21 Democrats in voting for the article. The following Monday the Committee approved its second article charging Nixon with abuse of power. The next day, the third and final article, contempt of Congress, was approved.

        So, it may not have been the Congress that went to the SC. Can the Senate, Congress, or Judiciary Committee just go directly to the SC and ask for a ruling?

        Support Thom Hartmann and migratory song birds! Buy shade grown coffee from a sponsor.

        by OLinda on Wed Jun 27, 2007 at 07:28:59 PM PDT

        [ Parent ]

  •  oh, i'm sure they'll just write some letters (1+ / 0-)
    Recommended by:

    for the next several months.  that's all they seem to do anyway.    

  •  More "Conceptual Scoops", as they're calling them (1+ / 0-)
    Recommended by:

    snatching up more and more perjurors! Perjurors-o-plenty! THAT'S what's gonna happen. And lots of people having their lives ruined for foolishly supporting this so-called "Empire". And the


    painful demise of the Republican party!


    Can I get a whoo hoo? C'mon, do it.

    Shame on the congress for allowing Cheney to remain in office.

    by LandSurveyor on Wed Jun 27, 2007 at 06:42:28 PM PDT

  •  Can't help to think... (0+ / 0-)

    If I were a betting man; my money would be on #5.

  •  Whether it's an impeachable offense or not (1+ / 0-)
    Recommended by:

    in some abstruse Constitutional sense, I say that it is until we decide otherwise.  It's obstruction of justice and if Congress wants to impeach for that, it can.  No blinking.  This is now a negotiation and I sure am not going to tip my hand.

    My apologies to students who took my U.S. Government class in the 90s: evidently the Constitution doesn't limit Presidential power after all. Who knew?

    by Major Danby on Wed Jun 27, 2007 at 06:46:41 PM PDT

  •  I apologise for being lazy by not (2+ / 0-)
    Recommended by:
    mataliandy, Simplify

    carefully sifting all the diaries to find the answer on 'inherent contempt', but it is a little much for a non-legal mind to comprehend.

    I want to understand though. So, I am asking whether it takes a vote, a majority vote of the Senate to invoke inherent contempt or is it possible for one Senator to make a motion, or whatever the technical term is. What percentage of support does this step entail?

    In other words what steps are needed to actually invoke inherent contempt in order to hold the targets in inherent contempt.

    Obviously it boggles the mind to envision the Senate Sergeant at Arms literally dragging the targets by force to be tried at the bar of the Senate.

    It does seem rather unlikely but it is fascinating as an option.

  •  #5 (0+ / 0-)

    5- Do nothing, complain loudly about obstructionism, stonewalling, and lawlessness, and hope that voters elect Democrats in 2008, because Republicans are so nasty

    If they go this route, they will be no better than the Republicans.  My bet is that they will #5 us.  Shit!!!!

  •  "Emperor" Dick Cheney. (0+ / 0-)

    Dick Cheney imagines himself an emperor.

  •  As for statuatory contempt (0+ / 0-)

    Yes, the Bushie USA's will likely drag their feet (I doubt that they'll be so stupid as to outright deny congress's requests to enforce). But don't forget, due to S.214 they can be replaced by mid-October. And the relevant USA when it comes to serving and enforcing is DC USA Jeff Taylor, a Hatch protege and Gonzo appointee who will likely be uncooperative with congress. But the DC court (which has proven to be non-partisan during the Bush years I believe) will be empowered to name his replacement should he fail to do his job.

    So don't necessarily give up on this option, which I think will be congress's initial focus.

    •  Taylor may be replaced. (2+ / 0-)
      Recommended by:
      kovie, moosely2006

      But what accounts for the non-prosecution of Gorsuch? That episode took place 25 years before the current politicization of the US Attorneys' offices.

      You'd have to have a court appointed US Attorney who believed he took no orders from the Justice Department, even though it's the Justice Department to whom he or she would report.

      It's entirely possible, of course, that the new appointee would buck the entire DoJ leadership. But it's a long shot that even appointment by the court makes only very slightly more likely. The new USA will still be a Justice Department employee.

      •  But an independant employee (1+ / 0-)
        Recommended by:

        who, given the politicizating of the DoJ that has now been brough to light, will probably find it a lot easier to act independantly than before this all came out. Sure, Gonzo can make life hard for the new USA, by cutting off funds, withdrawing employees, otherwise disrupting, etc. But that would only trigger yet another congressional investigation and likely calling for a special prosecutor to investigate possible obstruction of justice.  The administration can certainly try to obstruct, but at this point it would find that hard to do without making things even more perilous for it.

        We're in Watergate territory here, where any coverup attempt by BushCo might well be more obviously incriminating than the underlying crimes. And congress is just WAITING for any such attempt so that it can absolutely pounce on them.

        So go ahead, Gonzo, we just DARE you to defy us and try to obstruct. We've got your number and you know it. Not going anywhere, eh? Fine by us, because you can't do a damn thing at this point without it making life even worse for you. Psych!

        •  It's because they're in Watergate territory... (1+ / 0-)
          Recommended by:

          that I think the DoJ will intercede. They have nothing to lose by it, and may tie the proceedings up in court on preliminary procedural issues, and thus run out the clock before they ever reach the merits of the case.

          •  You Overlook Tainted DoJ (1+ / 0-)
            Recommended by:

            Your focus is too narrow. You are speculating a US Attorney will take any contempt of Congress case in order to stall until Bush and Cheney's terms are over. This when a part of the broader crisis is administration political appointment of US Attornies. It is doubtful this would play well in the public arena, given the public's failed expectations in Congress is probably what has motivated the subpoenas. You're speculating a game which could be played in a time of public respect for the Office of the Attorney General, but public respect is gone.

            •  Well, no. (1+ / 0-)
              Recommended by:

              My argument was originally that the US Attorney would not prosecute the case.

              Here, I'm answering kovie's objection that the US Attorney who may ultimately be responsible for the decision to prosecute will not be an "administration" appointee, but appointed by the courts. And my answer is that I think the DoJ will intercede in an attempt to block even a court-appointed US Attorney from proceeding.

              •  How does the DoJ block its own USA (0+ / 0-)

                in his or her district of jurisdiction using the courts? Isn't that effectively suing their own USA (although not technically)? Who could file procedural motions against their own USA? Or are you saying that as defendants (not sure if that would be the technical legal term but I think you know what I mean), they'd send their own lawyers, from the WH counsel's office, to block the USA's motions to serve?

                And if they did, as philandrel pointed out above, won't this look blatantly political and improper and cause public anger? And won't the courts see right through this and rule to dismiss such maneuvers? I'm way out of my expertise here but it seems to me that for this to work, the courts would have to play along and allow things to drag out with endless procedural stalling tactics. And I just don't seem them letting them get away with that beyond a month or two.

                Call me excessively optimistic, but it seems to me that eventually the courts will grow impatient and find their intelligence being insulted by so many trivial court maneubers, and just throw them all out and rule for congress, IF congress can demonstrate that criminality is reasonably indicated. With FISA, that seem like a "slam dunk" since the administration admitted violating FISA. With the USA scandal, they have the testimony of the USA's, Goodling, and others.

                I just don't see how they can win here unless either congress totally drops the ball, or the courts prove to be massively partisan and/or incompetent. And I'm guessing that the former will not be the case, and Roberts will not allow his SCOTUS to be tainted for the rest of his life with allegations of partisan impropriety or incompetence. He may well decide to throw Bush under the bus, both out of vanity, and out of consideration for the GOP. And hell, who knows, maybe even out of principle. He DOES still believe in the constitution, I assume--and very conservatively interpreted, of course.

                Look at it this way. In whose interests is it to let BushCo get away with this? Not the Dems. Not the GOP. Not the courts. No one's other that BushCo's, and their far-right supporters (as opposed to political allies). As Lugar, Voinovich, Quinn and even Novak showed this week, no one gives a damn about them anymore. They're on their own. And that makes them very vulnerable.

                •  There are any number of mechanisms. (1+ / 0-)
                  Recommended by:

                  But yes, they all look political and would cause public anger. I've never denied that, and in fact, I'm counting on it.

                  But in the Gorsuch case, for instance, the DoJ filed suit in the name of the United States of America to enjoin any enforcement of contempt actions. That's a suit the Attorney General could assign anyone to bring. It needn't be filed by the US Attorney.

                  I would just assume, though, that they'd instruct the US Attorney not to proceed, and if he did, they'd fire him.

                  Yes, that would provoke a reaction that could just dig the hole deeper. But that wouldn't surprise me, either.

                  Besides, I want that hole to get deeper.

  •  Well, I hope those who are saying that Congress (1+ / 0-)
    Recommended by:

    is ready to move against the Bush/Cheney crime family are correct, but considering the craven way they caved on the Iraq Appropriations Bill, I'll believe they have some spine when I see it.

    •  I'm as angry as anyone (1+ / 0-)
      Recommended by:

      over the "Supplemental Surrender".

      But that was the full House, whereas here we're really dealing with the Senate and House Judiciary Committees.

      They have spent months building a solid case for their subpoenas and I have no doubt they intend to follow through on them.

      The most interesting fact is Leahy getting Specter, Grassley, and Hatch to vote for his subpoenas. Clearly he is working very hard to keep his investigation moving ahead...

  •  I'll give 2 to 1 on option 5 (0+ / 0-)

    From what I've seen lately nothing shores up any hope of anything more than more posturing of the Dems. Leahy has referred a Judge for investigation and prosecution to Gonzales today. You tell me if you think it's likely that Alberto will bring charges against a sitting Judge, appointed by Bush, confirmed by the Senate, who probably help Gonzale and Yoo write  both the Bybee memo and the other torture doc. that is still kept secret, that will in all likelihood will claim executive priviledge. Can't do it can you ? That is the way it's going to be until there is Dem. elected Pres., if that every happens again.

    -8.63 -7.28 "Congress _ a group of men who individually can do nothing, but as a group decide that nothing can be done."

    by OneCrankyDom on Wed Jun 27, 2007 at 07:08:23 PM PDT

  •  Ride'm Cowboys! (0+ / 0-)

    Breadth of action indicates to me the members of Congress have looked at Congressional approval ratings and determined the Progressives are more in tune with the public than the "mainstream media." So being, they believe they have to act and have done so. My guess is, though, they have little more plan than what I've outlined.

    Factor in the courts here, which look big time like they will unwaveringly support the administration. Congress' only card to play is to radically cut judicial funding, let the f'n Supreme Court stand solidly on the administration's side with members reading their opinions in a dark courtroom without electricity because their funding has been cut.

    Just a taste of what Congress might well have to do. Members can't back down now, though, without reinforcing the public and Progressive disdain for them. Being so, Congress has started down a path without a map, when it can't go back. Wild ride ahead cowboys.

  •  Clinton impeachment story from 1998... (5+ / 0-)

    ...looks like Republicans weren't too happy with the possibility of him defying the subpoena:

    "I think it would be disastrous. It is basically saying he is above the law, he doesn't have to comply with the law," said Senate Majority Whip Don Nickles of Oklahoma on NBC's "Meet The Press." "Everybody else in America has to comply with subpoenas (while) he's saying he wouldn't. ... I don't think that would be sustainable."

    "(Clinton) has an obligation as the highest official in this government, sworn to uphold the Constitution and the laws of this country. If he doesn't do that, I think public opinion would turn overwhelmingly against him," said Senate Judiciary Committee Chairman Orrin Hatch of Utah on CBS's "Face The Nation."

    "The only person who can really answer the questions is the president. And he has an obligation to do that," Hatch said. "And I think he will, if push comes to shove."

    But Hatch said if Clinton were to fight the subpoena to the U.S. Supreme Court, ultimately lose and then still refuse to testify, it would create a "constitutional crisis" that could lead to impeachment.

    "I think the fact that he would ignore and violate a subpoena would certainly be grounds to file articles of impeachment," Hatch said. "If Kenneth Starr does have additional information, I think it could snowball into a real impeachment problem for the president. I personally hope that doesn't happen."

    No one loves armed missionaries.

    by holycheebis on Wed Jun 27, 2007 at 07:10:53 PM PDT

    •  Hatch has ignore damn near every statement (2+ / 0-)
      Recommended by:
      moosely2006, BigiMac

      he has ever made when it suits him, this includes anything he has said about Clinton. Any who listens to Cspan regularly has seem Hatchs words thrown back at him time and time again, it has yet to make a dent. The same could be said about almost every Republican around during the days of Clinton.

      -8.63 -7.28 "Congress _ a group of men who individually can do nothing, but as a group decide that nothing can be done."

      by OneCrankyDom on Wed Jun 27, 2007 at 07:17:39 PM PDT

      [ Parent ]

      •  Boy do you have this right ... (1+ / 0-)
        Recommended by:

        being one of my two ignoble senate representatives (& the more seriously fucked up one if that's possbile), I hang my head low over having to acknowledge that lil' dick hatch, the totally two-faced, neocon, self serving, lying, obfuscating, batshit wingnut, does not now & probably never will face a serious challenge in this state.

        Those who stand for nothing fall for anything - Alexander Hamilton

        by BigiMac on Wed Jun 27, 2007 at 07:27:28 PM PDT

        [ Parent ]

        •  that's sad news (0+ / 0-)

          the total amount of things he has contradicted within in yrs of each others are countless. Makes you wonder just who it is that wanted to be represented by someone like him.

          -8.63 -7.28 "Congress _ a group of men who individually can do nothing, but as a group decide that nothing can be done."

          by OneCrankyDom on Wed Jun 27, 2007 at 07:40:00 PM PDT

          [ Parent ]

          •  72% of the reddest voters you'll ever run across (0+ / 0-)

            ... but there are many who will continnue trudging this road to happy destiny is spite of the depressing crap hatch spouts.

            Those who stand for nothing fall for anything - Alexander Hamilton

            by BigiMac on Wed Jun 27, 2007 at 07:56:10 PM PDT

            [ Parent ]

  •  This is Clearly a Constitutional Crisis (7+ / 0-)

    The Congress cannot allow Bush and Cheney to get away with this sneering contempt for the Constitution, for the American people, for the Law, and for the Congress. It's incredible! Nancy Pelosi must announce that impeachment is BACK ON THE TABLE. The House of Representatives must initiate an inquiry into impeachment proceedings against Gonzales and Cheney. If Bush doesn't hear the warning, then impeach him too. Cut off funding for the war; cut off Cheney's executive funding. Congress simply cannot have the Sergeant at Arms arrest the Vice President or the President. We must impeach them.

  •  my apologies (5+ / 0-)

    After doing a little more research on original jurisdiction for the Supreme Court, and some precedents, I humbly admit my memory didn't serve me well. I was indeed mistaken, and the subpoenas would likely go to a district court first.

    However, I still maintain that I am correct in saying that this is not a matter for contempt charges filed with the DC USA. That may be the case for anyone else but the president and the vice president, but the district court is just a stopover to the Supreme Court, and likely a short stopover.

    •  I suspect that all 3 courts will rule against (5+ / 0-)

      the administration (i.e. district, appeals and SCOTUS), if congress can demonstrate the likelihood of criminality, which I think it can and will. The courts usually rule against EP in such cases. And the courts have already ruled against the administration in non-EP cases, which disproves the theory some are circulating that they will always back them up.

      The wall of invincibility is crashing down around them. Just this week we've had all these subpoenas and revelations, the Gellman Cheney series in the WaPo, Sally Quinn's impeachment op-ed, Lugar's speech and Voinovich's rejection of the "surge", the silly "not part of either branch" defense that they quickly withdrew, etc. Things are accelerating rapidly and are starting to get very interesting, and very bad for BushCo.

  •  Subpoenas and Contempt May be the Strategy (3+ / 0-)
    Recommended by:
    word is bond, Iowa Boy, moosely2006

    The only way impeachment will work is to get at least 17 or 18 (depending on Lieberthug) GOP senators to go along with it. And the only way to do that is to make it more attractive to convict than not.

    Blackmail is out; if there's any of that going on, it's by  Rove and Cheney. And the Dems can't exactly promise to leave the GOP senators alone in the next election. But they can appeal to institutional pride, which means they have to convince enough of them to be senators first and Republicans second.

    So, if I read the strategy right, Reid is laying out a case that Cheney (and Bush, and Gonzo) have so disrespected the Congress that the only way for senators to keep their self-respect - not to mention the respect of the voters - is to impeach. That is a long slow process, but it may just be starting to pay off.

    It is not the business of the state to help its citizens get into heaven, nor to save them from hell.

    by DanK Is Back on Wed Jun 27, 2007 at 07:18:23 PM PDT

  •  Kargo X. (0+ / 0-)

    Congress can refuse to fund the two offices except for the president's salary, No?

    " Let us stop, look and listen. Let us not give this president or any president unchecked power. Remember the Constitution." Sen Rob't. Byrd 10/11/02.

    by LEP on Wed Jun 27, 2007 at 07:21:26 PM PDT

    •  That's an option. (1+ / 0-)
      Recommended by:

      But it doesn't deliver any testimony or documents.

    •  That wouldn't be enough as a measure (1+ / 0-)
      Recommended by:

      to regain self-respect for any Member of the House.

      Impeachment has to go forward, anything less is a stain to American's self-respect as a democracy.

      It's just a matter of time that Americans will feel so ashamed of themselves that nothing else will seem appropriate to save their honor than the demonstration that a VP, the justice department, the SCOTUS and this adminstration can NOT get away with dismantling and subversing the separation of powers and the oversight functions of the House. Impeachment is an obligation, not an option.

      Hoping that a vote for Democrats in 2008 will "convince the world" that the US is still a functioning Democracy is an illusion.

      It's necessary to raign in this administration, fast, and thoroughly amend legislation so that the loopholes Cheney and Bush used to create their "unitary empire" are a thing of the past.

      "False language, evil in itself, infects the soul with evil." ----Socrates

      by mimi on Wed Jun 27, 2007 at 07:42:09 PM PDT

      [ Parent ]

      •   The Dmeocrats can defund by themselves. (0+ / 0-)

        They need many Republicans to impeach successfully so at this point it seems unlikely. Sadly, they don't even have the balls to do what they have the power to do.
        As a corollary to the traitorous conduct of the Republicans during the Bush period will be the cowardice of the Democrats.

        " Let us stop, look and listen. Let us not give this president or any president unchecked power. Remember the Constitution." Sen Rob't. Byrd 10/11/02.

        by LEP on Thu Jun 28, 2007 at 12:33:37 AM PDT

        [ Parent ]

  •  #4 for sure (1+ / 0-)
    Recommended by:

    Why should Pelosi and Reid not do exactly what they have done in the past.  Here's the scenario:

    1.  Specter says the Admin is being unreasonable
    1.  The White House says they will negotiate
    1.  The Dems wait around while the Repubs "negotiate" for them
    1.  A compromise is announced
    1.  Specter heralds a great win for Congress
    1.  The Press says the Admin took a reasonable approach to solving the impasse
    1.  The deal turns out to be that the President will turn over everything he is obligated to under the Constitution accroding to his interpretationand that testimony will be under oath but that Congress will have to accept that "memories are sometimes faulty and that testimony will be limited in some fashion"
    1.  Rinse, dry, repeat
  •  What about special prosecutor or counsel (2+ / 0-)
    Recommended by:
    OLinda, Simplify

    I hear that expression thrown around and I don't really know but about it. Here is what I have pieced together.

    1. Ken Star-was appointed (no idea who did the appointing) to look into Whitewater but I'm not sure if that had anything to do with the gov't and  think it was purely a civil matter, the defendant just happened to be the President of the U.S.
    1. Nixon threatened to fire the "special prosecutor" (which is the main reason my dad thinks Nixon was worse than Bush..we have had this argument for years) Again I don't know who hired this special prosecutor, what authority he had, what he was investigating, in fact, I don't even know his name (I'm just assuming it was a "he").
    1. Pat Fitzgerald was appointed by Ashcroft, this is a non-starter b/c there is no way Gonzales would appoint a prosecutor w/ as much integrity as Fitzgerald so it would be completely pointless to pursue this.

    Can the dems in congress get an attorney (who is on the outside & unbiased) to take the reigns (sort of an investigation czar) and who would have authority over the executive branch to force compliance w/ subpoenas and throw people in jail??

    I'm going to a breakfast on Saturday and Sen. Clinton & Debbie Wasserman-Shultz will be there, I am going to MAKE SURE I talk to DWS about all this.

    If Monica Goodling can pass the bar exam, so can I!!

    by lawstudent922 on Wed Jun 27, 2007 at 07:29:15 PM PDT

    •  Jaworski and Cox (1+ / 0-)
      Recommended by:
      1. Nixon had Archibald Cox fired and Leon Jaworski took over as special prosecutor. I just googled this for a separate post upthread.


      Support Thom Hartmann and migratory song birds! Buy shade grown coffee from a sponsor.

      by OLinda on Wed Jun 27, 2007 at 07:35:14 PM PDT

      [ Parent ]

    •  Some answers. (4+ / 0-)

      Ken Starr was appointed by the Special Division of the U.S. Court of Appeals for the District of Columbia -- a three judge panel specially created for that purpose by the now-expired Independent Counsel statute.

      The special prosecutor in the Nixon case was appointed by the Attorney General. That's why Nixon claimed he had the power to fire him (he did), and why Congress later adopted the Independent Counsel statute -- to establish barriers between investigating counsel and the president.

      The Dems in Congress could try to design and enact some new statute that would establish something like an Independent Counsel to do this work for them. But how quickly do you think that'd be vetoed?

      This responsibility belongs to them. If they don't want it because they think it's a political hot potato, well, that's up to them. But it means that any determined president in the future can just declare them null and void until they agree to defend their Constitutional prerogatives.

      Of course, you can still collect your paycheck even if you're a nullity. Until the (vice) president decides you can't, I guess.

  •  One question re: the article of impeachment (1+ / 0-)
    Recommended by:

    Wasn't the House Judiciary Committee looking into Watergate saying that impeachment over subpoenas was justified in Nixon's case because they were already actively considering impeachment?

    This administration has a history of ignoring every "understanding" of the constitution previously held. And my guess is that the Congress's "understood" power to issue subpoenas in the normal course of things (based on the explicit power to impeach) is one precedent they're prepared to deep-six.

    So it seems to me that to make the argument made in Nixon's case, they have to be willing to say they're at least considering impeachment -- or else in the process of impeaching someone else, like Gonzales or Cheney.

  •  E-mailed Pelosi +2 other reps (1+ / 0-)
    Recommended by:
    Iowa Boy

    (my rep and the one in the neighboring district) to ask them to support HR 333. I suggest others do the same.

  •  Dick Cheney is a shuttle heat shield tile (0+ / 0-)

     Dick Cheney is the weakest heat shield tile on the Republic party as they re-enter the atmosphere for the 2008 election. Remember that whole zipper effect concern on the shuttle? One tile comes away ... then a whole row can go like a zipper.

     So thats Cheney. He is the spider at the center and when he goes over the event horizon it'll be like a medieval army losing the king - a total rout rather than an orderly retreat.

    "Soon we must all face the choice between what is right and what is easy." - Albus Dumbledore

    by Iowa Boy on Wed Jun 27, 2007 at 07:32:15 PM PDT

  •  Impeachable. (1+ / 0-)
    Recommended by:

    Damned straight it is. It's the offense I've been waiting for. The two scenarios that I have seen leading to impeachment have been

    1. The administration marginalizes Congress to the point that seventeen Republican Senators finally get pissed off enough to convict. I used to think this was going to happen, but at this point, post Gonzo no confidence vote, it's obvious that there are 49 little jars of formaldehyde containing the nads of each and every Republican Senator. Oh, well.
    1. The administration would flagrantly ignore the incoming subpoenas, and the obstruction becomes Nixonian in its obviousness, with similar results. This carries the possibility of refreshing #1 above.

    Does anybody here actually expect this administration to comply with anything they find, um, inconvenient? Isn't Condi dodging a subpoena as we speak? Aren't there still videos and pictures from Abu Ghraib that have yet to be released even though the courts ordered them out?

    They are going to push, and push, and push until the only proper available solution to this long national nightmare is exercised. The Senate needs to hold them to these subpoenas with no wiggle room. Of course they aren't going to comply, any more than Nixon was going to, and these people are two orders of magnitude worse than Nixon's most heinous wet dream. Speed this shit through and let's get on with the impeachment already.

    The lone and level sands stretch far away. -Shelly

    by justme on Wed Jun 27, 2007 at 07:44:49 PM PDT

  •  Kagro X, if you ever run for office (2+ / 0-)
    Recommended by:
    moosely2006, MikePhoenix

    I'll vote for you.

    Just saying ... you have done a great service to us with all your diaries. Thank you very much.

    "False language, evil in itself, infects the soul with evil." ----Socrates

    by mimi on Wed Jun 27, 2007 at 07:47:49 PM PDT

  •  SCOTUS: Let them dare claim Executive Privilege.. (3+ / 0-)
    Recommended by:
    Simplify, nightowl724, moosely2006

    The United States of America v. President of the United States Richard M. Nixon,1974,

    to wit:

    The Supreme Court ruled in the "United States of America v. President Richard M. Nixon", that it isn't a valid defense against subpoenas subsequent to the criminal investigations which everyone and his brother knows, eventually led to Nixon's Articles of Impeachment:

    ..."Although President Nixon released edited transcripts of some of the subpoenaed conversations, his counsel filed a "special appearance" and moved to quash the subpoena on the grounds of executive privilege. When the District Court denied the motion, the president appealed and the case was quickly brought to the Supreme Court. In the following portion of the Court's unanimous opinion, the Supreme Court dealt with two key issues, the power of the judiciary as the ultimate arbiter of the Constitution, and the claim of the president that, in the name of executive privilege, he could choose to withhold materials germane to a criminal investigation. Chief Justice Burger reaffirmed the rulings of Marbury v. Madison and Cooper v. Aaron that under the Constitution the courts have the final voice in determining constitutional questions, and that no person, not even the president of the United States, is above the law."

    The following is a snipet from the unanimous SCOTUS decision as written for the Majority by Chief Justice Warren Burger:

    ..."The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and added to those values the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making.

    A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.

    These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution.

    ...But this presumptive privilege must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that "the twofold aim [of criminal justice] is that guilt shall not escape or innocence suffer."

    ...The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts....

    To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.

    ...The [evidentiary] privileges are designed to protect weighty and legitimate competing interests... [and] are not lightly created nor expansively construed for they are in derogation of the search for truth.

    In this case the President challenges a subpoena served on him as a third party requiring the production of materials for use in a criminal prosecution; he does so on the claim that he has a privilege against disclosure of confidential communications. He does not place his claim of privilege on the ground they are military or diplomatic secrets. As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities....

    No case of the Court, however, has extended this high degree of deference to a President's generalized interest in confidentiality. <strongNowhere in the Constitution is there any explicit reference to a privilege of confidentiality,</strong> yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based.

    The right to the production of all evidence at a criminal trial similarly has constitutional dimensions.... It is the manifest duty of the courts to vindicate [the Sixth and Fifth Amendment] guarantees and to accomplish that it is essential that all relevant and admissible evidence be produced.

    In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of his responsibilities against inroads of such privilege on the fair administration of criminal justice.

    The interest in preserving confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution.

    On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.

    A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case. Without access to specific facts a criminal prosecution may be totally frustrated.

    The President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending trials.

    We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interests in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.

    The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.

    D. ...If a President concludes that a compliance with a subpoena would be injurious to the public interest he may properly, as was done here, invoke a claim of privilege on the return of the subpoena. Upon receiving a claim of privilege from the Chief Executive, it became the further duty of the District Court to treat the subpoenaed material as presumptively privileged and to require the Special Prosecutor to demonstrate that the Presidential material was "essential to the justice of the case."

    ...We affirm the order of the District Court that subpoenaed materials be transmitted to that court.

    We now turn to the important question of the District Court's responsibilities in conducting the in camera examination of Presidential materials or communications delivered under the compulsion of the subpoena duces tecum.

    E. ...Statements that meet the test of admissibility and relevance must be isolated; all other material must be excised.

    ...The District Court has a very heavy responsibility to see to it that Presidential conversation, which are either not relevant or not admissible, are accorded that high degree of respect due the President.

    Mr. Chief Justice Marshall sitting as a trial judge...was extraordinarily careful to point out that: "In no case of this kind would a Court be required to proceed against the president as against an ordinary individual."

    Marshall's statement cannot be read to mean in any sense that a President is above the law, but relates to the singularly unique role under Art. II of a President's communications and activities, related to the performance of duties under that Article.

    Moreover, a President's communications and activities encompass a vastly wider range of sensitive material than would be true of any "ordinary individual."

    It is therefore necessary in the public interest to afford Presidential confidentiality the greatest protection consistent with the fair administration of justice.

    The need for confidentiality even as to idle conversation with associates in which casual reference might be made concerning political leaders within the country or foreign statesmen is too obvious to call for further treatment. We have no doubt that the District Judge will at all times accord to Presidential records that high degree of deference suggested....


    Source: 418 U.S. 683 (1974).

    Source-linked at:

    The SCOTUS ruled that Nixon had to obey the duly issued subpoena duces tecum. Bush, based on this SCOTUS decision will have to obey any subpoena duces tecum. Cheney, even IF he had Executive Privilege, which he does not, still  would have to obey the subpoena duces tecum.

    In other words, they are toast!

    Impeachment Articles: "If we subpoena them, and they don't obey, they will come".

    "Our past patriots are spinning in their graves. Did they all die for this tyranny?" Change Course. Change Captains. Change crews. But save the ship!

    by ImpeachKingBushII on Wed Jun 27, 2007 at 07:52:50 PM PDT

    •  All true... (0+ / 0-)

      but this isn't a subpoena issued pursuant to a criminal investigation.

      It's a legislative vs. executive question right now. Very easy to dismiss as political.

      •  But Turleys point (0+ / 0-)

        is that Bush's 30+ violations of FISA were crimes, and that is how Congress can get past Executive Privilege.

        As a non-lawyer, I need to ask: can Congress investigate crimes, or must they hand such an investigation off to a prosecutor?

        •  Congress can investigate anything. (2+ / 0-)
          Recommended by:
          OLinda, moosely2006

          But it can't prosecute anything. Except for inherent contempt, that is.

          The difference I'm describing between the Nixon case and this one has nothing to do with whether or not a crime is involved. It's that in Nixon's case, it was an executive branch prosecutor pursuing a criminal case, who got a court to issue a subpoena for those tapes.

          In this case, we're talking about an inter-branch fight. And though there's a crime involved, we also have an issue tied up in the investigation that complicates the question. The inter-branch fight is something that wasn't present in the actual set-up of the case before the court in Nixon. So there was no need to address it as a political question. In this case, though, you have to settle that question first, before you can get to the rest of the questions. And if they decide that the political question is a disqualifying one, we get no decision, and it's back in Congress' lap.

      •  Where's the Nixon plumbers when u need 'em?... (0+ / 0-)

        ...dang it! :-)

        "Our past patriots are spinning in their graves. Did they all die for this tyranny?" Change Course. Change Captains. Change crews. But save the ship!

        by ImpeachKingBushII on Wed Jun 27, 2007 at 08:53:05 PM PDT

        [ Parent ]

      •  Ok. I think I found your crimes... (1+ / 0-)
        Recommended by:
        moosely2006 took me some hefty research time but I think I found what you you were looking for Kagro X:

        "The following is cited as taken from the Report, excerpted as "Here's the meat" by Yellow Canary at Daily Kos, August 4, 2006:

        "In brief, we have found that there is substantial evidence the President, the Vice-President and other high ranking members of the Bush Administration misled Congress and the American people regarding the decision to go to war in Iraq; misstated and manipulated intelligence information regarding the justification for such war; countenanced torture and cruel, inhuman and degrading treatment in Iraq; permitted inappropriate retaliation against critics of their Administration; and approved domestic surveillance that is both illegal and unconstitutional. As further detailed in the Report, there is evidence that these actions violate a number of federal laws, including:

        >>>Making False Statements to Congress, for example, saying you have learned Iraq is attempting to buy uranium from Niger, when you have been warned by the CIA that this is not the case.

        >>>The War Powers Resolution and Misuse of Government Funds, for example, redeploying troops and initiating bombing raids before receiving congressional authorization.

        >>>Federal laws and international treaties prohibiting torture and cruel, inhuman, and degrading treatment, for example, ordering detainees to be ghosted and removed, and tolerating and laying the legal ground work for their torture and mistreatment.

        >>>Federal laws concerning retaliating against witnesses and other individuals, for example, demoting Bunnatine Greenhouse, the chief contracting officer at the Army Corps of Engineers, because she exposed contracting abuses involving Halliburton.

        >>>Federal requirements concerning leaking and other misuse of intelligence, for example, failing to enforce the executive order requiring disciplining those who leak classified information, whether intentional or not.

        >>>Federal regulations and ethical requirements governing conflicts of interest, for example, then Attorney General John Ashcroft’s being personally briefed on FBI interviews concerning possible misconduct by Karl Rove even though Mr. Rove had previously received nearly $750,000 in fees for political work on Mr. Ashcroft’s campaigns.

        >>>Violating FISA and the Fourth Amendment, for example intercepting thousands of communications "to or from any person within the United States," without obtaining a warrant.
        The Stored Communications Act of 1986 and the Communications Act of 1934, for example, obtaining millions of U.S. customer telephone records without obtaining a subpoena or warrant, without customer consent, and outside of any applicable "emergency exceptions."

        >>>The National Security Act, for example, failing to keep all Members of the House and Senate Intelligence Committees "fully and currently informed" of intelligence activities, such as the warrantless surveillance programs.
        "With regard to the NSA’s domestic surveillance programs, we have also found that members of the Bush Administration made a number of misleading statements regarding its operation and scope; the legal justifications proffered by the Bush Administration are constitutionally destabilizing; there is little evidence the programs have been beneficial in combating terrorism and may have affirmatively placed terrorism prosecutions at risk; and the programs appear to have designed and implemented in a manner designed to stifle legitimate concerns.

        "The Report rejects the frequent contention by the Bush Administration that their pre-war conduct has been reviewed and they have been exonerated. No entity has ever considered whether the Administration misled Americans about the decision to go to war. The Senate Intelligence Committee has not yet conducted a review of pre-war intelligence distortion and manipulation, while the presidentially appointed Silberman-Robb Commission Report specifically cautioned that intelligence manipulation "was not part of our inquiry." There has also not been any independent inquiry concerning torture and other legal violations in Iraq; nor has there been an independent review of the pattern of cover-ups and political retribution by the Bush Administration against its critics, other than the very narrow and still ongoing inquiry of Special Counsel Fitzgerald into the outing of Valerie Plame.

        "There also has been no independent review of the circumstances surrounding the Bush Administration’s domestic spying scandals. The Administration summarily rejected all requests for special counsels, as well as reviews by the Department of Justice and Department of Defense Inspector Generals. When the DOJ Office of Professional Responsibility opened an investigation, the Bush Administration effectively squashed it by denying the investigators security clearances. Neither the House nor Senate Intelligence Committee have undertaken any sort of comprehensive investigation, and the Bush Administration has sought to cut off any court review of the NSA programs by repeatedly invoking the state secrets doctrine."

        Source-linked at:

        Which reminds me, where is that yellow birdie at anyway? I haven't seen him on here in months.

        "Our past patriots are spinning in their graves. Did they all die for this tyranny?" Change Course. Change Captains. Change crews. But save the ship!

        by ImpeachKingBushII on Wed Jun 27, 2007 at 09:35:53 PM PDT

        [ Parent ]

        •  That's not what I mean. (4+ / 0-)

          Again, I have no doubt that there were crimes committed. But that by itself doesn't turn the Congress into a criminal court, or its investigation into a criminal investigation.

          That's something that can only be done in court, and conducted by prosecutors. Congress isn't a court, and it doesn't prosecute anything (except inherent contempt).

          I don't need any further proof of criminality. Neither do you. The point is that if you and I become convinced that crimes were committed, and you and I investigate them, that doesn't make our work a "criminal investigation" for the purposes of a federal court.

          And the Nixon case came out the way it did because there was a federal prosecutor making a federal criminal case that depended on getting Nixon's tapes. In this case, there is no federal prosecutor making any kind of case. It's Congress that wants the evidence, and that puts it in a different light. They may be investigating something that could end up as a criminal investigation, but it isn't one yet.

          What's more, it's not only not a criminal investigation, but it's an investigation by one (supposedly) co-equal branch of government against another one. An irresistible force meeting an immovable object. How do you resolve that? That's essentially what makes it a political question. The courts prefer that voters decide how that should be resolved, because then the people who resolve it are (at least in theory) accountable for their decision, whereas judges are not.

          In the Nixon case, it was executive vs. executive. So it wasn't a matter of settling the order of power as between co-equals. It was one branch against itself, and so the default rules on that are the normal ones we've written down for ourselves to follow under normal circumstances. It's when we get into things the irresistible force vs. the immovable object that we need to go outside of the normal rules.

          Does that make more sense?

          •  Absolute sense... (0+ / 0-)

            ...Kagro X. Very well put:

            I don't need any further proof of criminality. Neither do you. The point is that if you and I become convinced that crimes were committed, and you and I investigate them, that doesn't make our work a "criminal investigation" for the purposes of a federal court.

            And I agree wholeheartedly:

            "An irresistible force meeting an immovable object".

            I guess that's us,too! Because we here on Dkos always speak truth to power! And that's why we scare the bejesus out of them. No matter how many enabling acts Bush enacts and signs into law, he can't legislate the Constitution out of our hearts, minds, and souls! Thanks once again. :-)

            "Our past patriots are spinning in their graves. Did they all die for this tyranny?" Change Course. Change Captains. Change crews. But save the ship!

            by ImpeachKingBushII on Thu Jun 28, 2007 at 05:23:48 AM PDT

            [ Parent ]

          •  exactly. (0+ / 0-)

            which is why impeachment should be in the hands of the voters, not congress.

          •  Good point. (0+ / 0-)

            So let them decide.

            •  It's a good point, but you missed it. (0+ / 0-)

              Voters can decide to ratify or not ratify impeachment, but they can't draw the political lines that impeachment draws.

              In other words, they can opt to reject the party that supported the crimes of the Bush "administration," but that rejection doesn't establish those crimes as beyond the pale. It merely marks them as unpopular (but otherwise legal) policy decisions.

              Only an act of Congress can delineate between unpopular policy and illegality. There is no national legislative referendum.

  •  Psshhh (1+ / 0-)
    Recommended by:
    fat old man

    Bush knows that Dems fold like Superman on laundry day. They proved it on the Iraq spending brouhaha.

    Why would this be any different?

    I promise it will be #5.

  •  What happened 70 years ago (1+ / 0-)
    Recommended by:

    with the inherent contempt case? And are there more examples from before that?

    "Parlimentary inquiry Mr. Speaker... does whining come out of my time?"

    by Andrew C White on Wed Jun 27, 2007 at 07:55:52 PM PDT

  •  Spank them all. (0+ / 0-)

    Impeach. I'll call Warner, ha-ha, and Webb. And Boucher. Ha.
    I got's I fever!

  •  Make the issue White House stalling on corruption (1+ / 0-)
    Recommended by:

    Let the White House refuse them, hold them in contempt and make the issue the White House/Republican stonewalling on corruption.

    At this point, I'd aim for maximum public highlighting of White House/Republican corruption for maximum effect on 2008 election.

    That is the real result we want more than getting any testimony or facts out the White House.

    We want to highlight the corruption so we can get a change of government and get some reform.

  •  When we have 51 (0+ / 0-)

    Feingolds in the Senate, then something will get done. Till then- I ain't getting my hopes up.

    "She was very young,he thought,...she did not understand that to push an inconvenient person over a cliff solves nothing." -1984

    by aggressiveprogressive on Wed Jun 27, 2007 at 08:22:20 PM PDT

    •  60 (0+ / 0-)

      You need 60, as has been demonstrated time and time again lately.

      •  less. (0+ / 0-)

        Have someone of stature petition the supreme court on   the grounds that the legal arguments being used right now to block the investigation are absurd and warrant further investigation due to the suspicousness it raises. The supreme court won't want to get anywhere near a legalslative vs executive branch dispute, but if you have sufficent standing you might be able to convince them to hand us a up or down vote of the AMERICAN PEOPLE on impeachment.

  •  Down with crooks (1+ / 0-)
    Recommended by:

    "Come to some negotiated settlement with the "administration" -- i.e., closed door, no transcript testimony, limited document release, etc."

    Bullshit. Congress can call their bluff and shut down the government. Refuse to acknowledge their authority. Make it clear that their legacy will be one of everlasting shame, and that the Bush administration will go down as the most lawless and corrupt government in American history.

  •  US Attorney for DC (1+ / 0-)
    Recommended by:

    If they try to hold somebody in contempt for refusing to fulfill the subpoena and the US Attorney for DC refuses to enforce the contempt can the Congress hold the US attorney for contempt for not following the law?

    Less talk, Make it Happen!

    by hb12 on Thu Jun 28, 2007 at 02:30:42 AM PDT

  •  or to hell with it. (0+ / 0-)

    Just be formal while still having teeth by filing an emergency injunction to expedite an executive privledge debate to the supreme court which has it's hands fucking tied by the united states vs nixon.

    •  yes. I believe we CAN do that. (0+ / 0-)

      It's just that in the example given the issue was not exactly as pressing as SENATORS telling the supreme court they're trying to investigate a possible crime.

      Civil Action No. 04-2208 (JDB)
      THE UNITED STATES, et al.,
      On January 14, 2005, this Court denied plaintiff Michael Newdow's motion for a
      preliminary injunction that sought to enjoin President George W. Bush from having prayers
      recited by invited clergy at the 2005 Presidential Inauguration. Although the Inauguration has
      come and gone -- with the inclusion of an invocation and benediction given by clergy -- the
      Court's earlier ruling on the preliminary injunction did not dispose of the case because Newdow's
      Complaint also sought a declaratory judgment and a permanent injunction against the inclusion
      of religious prayer at future Presidential Inaugurations, which he contends would violate the First
      Amendment. Now defendants President Bush, the Joint Congressional Committee on Inaugural
      Ceremonies ("JCCIC"), Senator Trent Lott, the Joint Task Force - Armed Forces Inaugural
      Committee ("JTF-AFIC"), and Galen Jackson (collectively "federal defendants"), as well as the
      Presidential Inauguration Committee ("PIC") and Greg Jenkins, have moved to dismiss
      Newdow's Complaint on the grounds that he is precluded by his previous litigation in 2001 from
      PIC also argues that it is a private entity and therefore the Establishment Clause does
      not apply to it. Because the Court finds that this action is precluded on other grounds, it is not
      necessary to consider this issue.
      bringing this suit and he does not have standing to pursue this action. For the reasons that
      follow, the Court will grant defendants' motions.

      The facts of this case, as well as those of Newdow's 2001 suit against President Bush,
      Newdow v. Bush, No. CIV S-01-218 (E.D. Cal.) (hereafter referred to as "Newdow I"), are set
      forth in detail in the Court's January 14, 2005 Memorandum Opinion. See Newdow v. Bush, 355
      F. Supp. 2d 265 (D.D.C. 2005). In 2001, Newdow challenged the constitutionality of the
      inclusion of religious prayers in the 2001 Inauguration. The Ninth Circuit affirmed the dismissal
      of Newdow's action, finding that he "lacks standing to bring this action because he does not
      allege a sufficiently concrete and specific injury." Newdow v. Bush, 89 Fed. Appx. 624, 2004
      WL 334438, at *1 (9th Cir. Feb. 17, 2004) (citing Valley Forge Christian College v. Americans
      United for Separation of Church and State, Inc., 454 U.S. 464, 482-86 (1982)). On December
      16, 2004, Newdow filed his Complaint and motion for preliminary injunction in this case. After
      holding a motions hearing, this Court denied Newdow's motion for a preliminary injunction. His
      subsequent request for an emergency injunction and stay of this Court's decision was denied by
      the D.C. Circuit and the Supreme Court.
      See Newdow v. Bush, 2005 WL 89011 (D.C. Cir.
      2005), application for injunction pending appeal denied, No. 04A623 S.Ct. (January 19, 2005).
      The Presidential Inauguration then occurred as planned on January 20, 2005, at which the
      Reverend Doctor Luis Leon and Pastor Kirby Jon Caldwell gave an invocation and benediction,
      respectively. See 151 Cong. Rec. S101-05 (daily ed. January 20, 2005) (transcript of inaugural
      ceremony). The parties subsequently provided supplemental briefing on defendants' motions to
      dismiss, focusing on the questions of issue preclusion and standing.

      Under Fed. R. Civ. P. 12(b)(1), the plaintiff bears the burden of establishing that the court
      has jurisdiction. See Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9,
      13 (D.D.C. 2001) (a court has an "affirmative obligation to ensure that it is acting within the
      scope of its jurisdictional authority"); see also Pitney Bowes, Inc. v. United States Postal Serv.,
      27 F. Supp. 2d 15, 18 (D.D.C. 1998). Although a court must accept as true all the factual
      allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule
      12(b)(1), Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S.
      163, 164 (1993), "'plaintiff[s'] factual allegations in the complaint . . . will bear closer scrutiny in
      resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim."
      Grand Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller,
      Federal Practice and Procedure § 1350 (2d ed. 1990)). Additionally, a court may consider
      material other than the allegations of the complaint in determining whether it has jurisdiction to
      hear the case, as long as it still accepts the factual allegations in the complaint as true. See
      Jerome Stevens Pharmaceuticals, Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005); EEOC
      v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997); Herbert v. Nat'l
      Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.1992); Haase v. Sessions, 835 F.2d 902, 906 (D.C.
      Cir. 1987); Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986).
      A motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P.
      12(b)(1) should not prevail "unless plaintiffs can prove no set of facts in support of their claim
      which would entitle them to relief." Kowal v. MCI Commun. Corp., 16 F.3d 1271, 1276 (D.C.
      Cir. 1994); Beverly Enters., Inc. v. Herman, 50 F. Supp. 2d 7, 11 (D.D.C. 1999). At the stage of
      litigation when dismissal is sought, a plaintiff's complaint must be construed liberally, and the
      plaintiff should receive the benefit of all favorable inferences that can be drawn from the alleged
      facts. See St. Francis Xavier Parochial Sch., 117 F.3d at 624.
      Issue Preclusion
      "Once a court has decided an issue of fact or law necessary to its judgment, that decision
      may preclude relitigation of the issue in a suit on a different cause of action involving a party to
      the first case." Allen v. McCurry, 449 U.S. 90, 94 (1980). A prior ruling will preclude
      relitigation if: (1) the same issue now being raised was "contested by the parties and submitted
      for judicial determination in the prior case"; (2) the issue was "actually and necessarily
      determined by a court of competent jurisdiction in that prior case"; and (3) preclusion does not
      "work a basic unfairness to a party bound by the first determination." Id. In the case of a
      jurisdictional dismissal -- here, lack of standing -- a prior ruling will not have preclusive effect if
      the "curable defect" exception applies. See Dozier v. Ford Motor Co., 702 F.2d 1189, 1192
      (D.C. Cir. 1983). For this exception to apply, the jurisdictional deficiency from the prior
      litigation must be "remedied by occurrences subsequent to the original dismissal." Id. (emphasis
      in original).

      In Newdow I, the Ninth Circuit affirmed the dismissal of plaintiff's complaint on the
      ground that he "lacks standing to bring this action because he does not allege a sufficiently
      concrete and specific injury." Newdow v. Bush, 2004 WL 334438, at *1. Hence, the issue of

      standing to bring this type of Establishment Clause claim against President Bush and others was
      clearly resolved in Newdow I by a court of competent jurisdiction. See Cutler v. Hayes, 818 F.2d
      879, 889 (D.C. Cir. 1987) (issue preclusion applies to standing). Moreover, the question of
      standing was vigorously litigated at all stages by all parties, see PIC Mem., Exs. 1-3 (Newdow I
      court order discussing Newdow's standing), and therefore a finding that the issue is precluded
      from relitigation would not work a "basic unfairness." See Yamaha Corp. of Am. v. United
      States, 961 F.2d 245, 254 (D.C. Cir. 1992) (unfairness created when party did not have incentive
      to litigate issue in earlier action). The only reason that Newdow might not be precluded from
      relitigating standing would be that the jurisdictional defect in his standing in Newdow I has since
      been cured. See Dozier, 702 F.2d at 1192.

      In his earlier action, Newdow alleged that the inclusion of religious prayers at the 2001
      Presidential Inauguration made him feel like an "outsider" when he watched the inauguration on
      television. See 2001 Compl. ¶ 12-13; 28-30. Defendants contend that because Newdow is
      alleging essentially the identical injury in this case -- injury from viewing or not viewing the
      inauguration -- he is precluded by the outcome in Newdow I from establishing that he has
      standing before this Court. See Fed. Def. Mem. at 11-12. Newdow argues that there are two --
      albeit mutually exclusive -- differences between this case and Newdow I. First, Newdow alleges
      that physically attending an inauguration among thousands of his fellow citizens gives rise to a
      different injury. See Pl. Supp. Mem. at 1-3. Second, he contends that being forced to forgo
      attending the inauguration because of the religious prayers is a separate injury. Id. at 3. Newdow
      seems to recognize the inconsistency of these positions, and ultimately concedes that his alleged
      injury in this case is being forced to forgo attending the inauguration. Id. at 3 n.5 ("let it be stated
      television, physically attending it, or forgoing it -- does not make a difference for purposes of the
      preclusion issue.

      here that Newdow's argument regarding his former injury [injury by attendance] was made
      because he hoped to obtain the injunction in which case he would have attended the inauguration.
      It was because he could not avoid the former injury [injury by attendance] that he 'chose,' instead,
      to suffer the latter [injury by forgoing the inauguration]."). This "choice" by Newdow is also
      consistent with the fact that he did not attend the 2005 Presidential Inauguration. Id., App. A,
      Declaration of Michael Newdow ("I did not attend the [inauguration]."). Accordingly, for
      purposes of defendants' motions, plaintiff's alleged injury is having to forgo the inauguration
      because of the inclusion of religious prayers at the ceremony.

      Comparing the injuries alleged in this case with those in Newdow I, it is apparent they are
      essentially the same -- inclusion of religious prayer at the inauguration will make plaintiff feel
      like an "outsider," whether he chooses to attend or not. Compare 2001 Compl. ¶ 30 with Compl.
      ¶ 57. Even Newdow conceded in his brief before the D.C. Circuit in this case that he would be
      precluded from relitigating "the general 'offense' and 'political outsider' claims that stem from
      knowing that the President called in chaplains." Def. Supp. Mem., Tab A, "Motion of
      Plaintiff/Appellant Seeking Stay of Judgment and Granting Preliminary Injunction" at 4. The
      question now before the Court, however, is whether being forced to alter one's behavior and
      forgo actually attending the inauguration is a sufficiently different type of injury than that
      resulting from watching the inauguration on television so as to avoid the preclusive effect of

      Plaintiff also argues that physically attending the inauguration, along with thousands of
      other citizens, changes the intensity and coercive nature of the alleged injury so as to avoid issue
      preclusion. See Pl. Supp. Mem. at 1-3. As noted above, however, such an injury is inconsistent
      with an injury based on forgoing the ceremony. Moreover, the medium through which Newdow
      observes the allegedly offensive conduct does not change the nature of the injury. The injuries
      alleged by Newdow -- general offense and being made to feel like a political outsider -- are
      suffered whether he sees the prayers on television or in person. Consideration of the coercive
      effect of a prayer pertains only to the special case of school children, not to mature, sophisticated
      adults like Newdow. See Lee v. Weisman, 505 U.S. 577, 592 (1992) (noting the "heightened
      concerns" of "subtle coercive pressures" found in elementary and secondary public schools).
      The application of issue preclusion does not turn on the correctness of the earlier
      decision. See Cutler, 818 F.2d at 888.

      The Supreme Court in Abington School District v. Schempp, 374 U.S. 203, 224-25
      (1963), noted that for purposes of assessing the standing of school children, there was no
      difference between children being exposed to the religious conduct or avoiding it. See also
      Valley Forge, 454 U.S. at 486-87 n.22 (noting that "the plaintiffs in Schempp had standing, . . .
      because impressionable schoolchildren were subjected to unwelcome religious exercises or were
      forced to assume special burdens to avoid them"). Subsequently, many courts have followed this
      reasoning in assessing standing. See Suhre v. Haywood County, N.C., 131 F.3d 1083, 1086 (4th
      Cir. 1997); Doe v. County of Montgomery, Ill., 41 F.3d 1156, 1159 (7th Cir. 1994) (injury-in-fact
      can be established either by having to confront religious conduct or having to avoid it); Newdow
      v. Egan, 309 F. Supp. 2d 29, 35 (D.D.C. 2004) ("A plaintiff must also allege that she either
      altered her behavior because of the offensive activity . . . or is forced to confront the offending
      activity on a regular basis or in her normal routine.").
      Because there is no relevant distinction between being forced to confront, or choosing to
      avoid, offensive conduct, Newdow is precluded from relitigating his standing. The only
      difference between the injuries alleged here and those alleged in Newdow I is that Newdow
      chose to avoid the allegedly offensive conduct by not attending the 2005 Presidential
      Inauguration, whereas he was exposed to the allegedly offensive conduct when he chose to watch
      the 2001 Inauguration on television. As the reasoning in Schempp makes clear, this is a
      distinction without a difference. Thus, because Newdow's newly alleged injuries do not cure the
      jurisdictional defect found in Newdow I, the "curable defect" exception from Dozier does not
      apply, and Newdow is precluded from relitigating his standing here.
      Even if Newdow were not precluded from relitigating the standing issue before this
      Court, his Complaint must be dismissed nonetheless because no justiciable case or controversy
      remains. A matter may be rendered nonjusticiable for a variety of reasons, frequently blending
      constitutional and prudential considerations. See Flast v. Cohen, 392 U.S. 83, 95 (1968) ("no
      justiciable controversy is presented when the parties seek adjudication of only a political
      question, when the parties are asking for an advisory opinion, when the question sought to be
      adjudicated has been mooted by subsequent developments, and when there is no standing to
      maintain the action."). In this case, the doctrines of standing and mootness -- both of which are
      rooted in the constitutional limits on the power of the federal judiciary -- deprive this Court of
      jurisdiction to grant the relief Newdow requests.
      The authority of the judiciary is limited by Article III of the Constitution to the
      "resolution of 'cases' and 'controversies.'" Valley Forge, 454 U.S. at 471. The judicial powers
      bestowed by Article III are "not an unconditioned authority to determine the constitutionality of
      legislative or executive acts," but, rather, the "power to declare the rights of individuals and to
      measure the authority of governments . . . 'is legitimate only in the last resort, and as a necessity
      in the determination of real, earnest and vital controversy.'" Id. (quoting Chicago & Grand Trunk
      R. Co. v. Wellman, 143 U.S. 339, 345 (1892)). This principle of limited judicial authority is, in
      part, manifest by the requirement that a litigant have standing to bring an action, and thus be
      "entitled to have the court decide the merits of the dispute or of particular issues." Warth v.
      Seldin, 422 U.S. 490, 498 (1975). The standing inquiry asks "whether the plaintiff has 'alleged
      such a personal stake in the outcome of the controversy' as to warrant his invocation of
      federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf." Id.
      (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
      Standing is a requirement, therefore, that every litigant in a federal lawsuit must establish.
      It is a burden borne by the plaintiff and each element of standing "must be supported in the same
      way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner
      and degree of evidence required at the successive stages of the litigation." Lujan v. Defenders of
      Wildlife, 504 U.S. 555, 561 (1992). To establish Article III standing, a plaintiff must first allege
      that he "suffered an 'injury in fact' -- an invasion of a legally protected interest which is (a)
      concrete and particularized ... and (b) actual or imminent, not 'conjectural' or 'hypothetical' ...."
      Id. at 560 (citations omitted). "Second, there must be a causal connection between the injury and
      the conduct complained of." Id. (quotations omitted). "Third, it must be likely, as opposed to
      merely speculative, that the injury will be redressed by a favorable decision." Id. (quotations
      omitted). Defendants contend Newdow lacks standing to bring this action because he has not
      suffered an injury-in-fact and his alleged injuries are not redressable by an order of this Court.
      Page 10
      To establish the first prong of Article III standing, Newdow must show that he suffered an
      injury that is "(a) concrete and particularized and (b) actual or imminent, not conjectural or
      hypothetical." Friends of the Earth, Inc. v. Laidlaw Environmental Svcs., Inc., 528 U.S. 167,
      180-81 (2000) (citing Lujan, 504 U.S. at 560-61). Newdow's Complaint alleges that he will be
      offended by the religious prayers at the inauguration and that he will be made to feel like an
      outsider. Compl. ¶¶ 21, 56-57, 76. Generally, "psychic injury" (i.e., feeling offended) is not
      sufficient to establish an injury-in-fact. See Valley Forge, 454 U.S. at 485-86 ("psychological
      consequence presumably produced by observation of conduct with which one disagrees" is not a
      sufficient injury for Article III standing); Humane Soc'y of United States v. Babbitt, 46 F.3d 93,
      98 (D.C. Cir. 1995) ("general emotional harm, no matter how deeply felt, cannot suffice for
      injury-in-fact for standing purposes"). In many cases that address the observance of allegedly
      offensive religious prayer or displays, however, a core component of the alleged harms is this
      same "psychic injury." See Santa Fe Indep. School Dist. v. Doe, 530 U.S. 290, 309 (2000)
      (offensive religious messages make some, including plaintiffs with standing, feel like political
      outsiders). The key point, though, is that a plaintiff cannot rely exclusively on abstract "psychic
      injuries" to establish standing; rather, a plaintiff must establish a "personal connection between
      [him or herself] and the challenged display in his or her home community." Suhre, 131 F.3d. at
      1087; see also Valley Forge, 454 U.S. 485-86 (psychic injury alone not sufficient for standing);
      Washegesic v. Bloomingdale Pub. Sch., 33 F.3d 679, 681-83 (6th Cir. 1994) (student had
      standing to sue over constitutionality of religious portrait at school he formerly attended); Saladin
      v. City of Milledgeville, 812 F.2d 687, 692-93 (11th Cir. 1987) (plaintiff who was part of city
      Page 11
      and received mail from city could challenge religious symbols on city’s seal).
      In assessing what suffices as a personal connection for standing, one can look to two
      categories of Establishment Clause cases -- those challenging prayer in a public setting (i.e.,
      school or legislative session) and those challenging the inclusion of a religious display on public
      grounds. In the prayer cases, plaintiffs who have had a sufficient personal connection to establish
      standing include students (or their parents) who attend the school and regular attendees of the
      legislative body. See Lee v. Weisman, 505 U.S. at 584 (currently enrolled students had standing
      to challenge graduation prayer); Wynee v. Town of Great Falls, S.C., 376 F.3d 292, 294 (4th Cir.

      1. (plaintiff regularly attended, for roughly two years, monthly town council meetings where

      prayer read); cf. Doe v. Madison School Dist. No. 321, 177 F.3d 789, 797 (9th Cir. 1999) (en
      banc) (no standing for parent of former student to challenge prayer at graduation). In the
      religious-display cases, a personal connection exists if a plaintiff is a member of the community
      in which the challenged religious exhibit is displayed, or if the plaintiff frequently visited the site
      of the display. See Van Orden v. Perry, 125 S.Ct. 2854, 2858 (2005) (resident of capitol city and
      frequent visitor to capitol grounds could challenge Ten Commandments monument on capitol
      grounds); Books v. City of Elkhart, Ind., 235 F.3d 292, 299 (7th Cir. 2000) (citizens who used a
      municipal building had standing to challenge the placement of a Ten Commandments monument
      in front of the building); Adland v. Russ, 307 F.3d 471, 478 (6th Cir. 2002) (plaintiffs who
      regularly traveled to state capitol for political advocacy had standing to challenge inclusion of
      Ten Commandments monument on capitol grounds).
      Here, Newdow lacks any of the indicia of a personal connection found in other prayer or
      public-display cases. Certainly the Presidential Inauguration is a national event, but it is only
      Page 12
      held once every four years. In order to come in contact with the allegedly offensive prayers,
      Newdow must either watch it on television or make a special trip to Washington to observe the
      prayers in person. He can also avoid the prayers by not watching the television, or by not making
      the trip to Washington. But, under either scenario, he does not have the necessary personal
      connection to establish standing. Newdow does not come in regular contact with the inaugural
      prayers, nor is he forced to change his typical routine to avoid them. See Newdow v. Egan, 309
      F. Supp. 2d at 35 (no personal connection to Senate prayer when making a one-time special trip
      to observe it). There is no evidence that he is a frequent or regular attendee or invitee at
      Presidential Inaugurations. Hence, without a personal connection to the inauguration that would
      make his injuries particularized and concrete, Newdow's alleged injuries -- general offense and
      outsider status -- are akin to the psychological injuries occurring from the observation of
      offensive conduct that the Supreme Court in Valley Forge deemed insufficient to establish an
      Besides his inability to establish the injury-in-fact element of standing, Newdow also
      cannot show that his injuries are redressable by an order of this Court. A plaintiff must establish
      that it is "likely, as opposed to merely speculative that the injury will be redressed by a favorable
      decision." Lujan 504 U.S. at 561 (internal quotations omitted). Although plaintiff brought this
      action against several defendants, he contends -- and the Court concurs -- that the President
      himself has the exclusive decision-making authority as to whether there will be religious prayer
      at an inauguration. See Compl. ¶ 39. Thus, to redress Newdow's injuries -- i.e., prevent the
      inclusion of religious prayers at future inaugurations -- the Court would have to issue a
      Page 13
      Newdow cites Duke Energy Trading & Mktg. L.L.C. v. Davis, 267 F.3d 1042, 1051 (9th
      Cir. 2001), for the proposition that Article III standing can exist even where the object of the
      injunction sought -- in this instance, PIC -- does not have the ultimate decision-making authority
      necessary to redress the grievance. In that case, the Ninth Circuit said a wholesale energy
      supplier did have standing to seek an injunction that would have blocked the governor of
      California from continuing to intervene in the California Power Exchange's ("CalPX") decision
      to liquidate a utility's "forward contract positions" for the benefit of the plaintiff. See id. at 1051.
      The court said this was so, even though enjoining the governor was not certain to result in CalPX
      liquidating the forward contract positions, a decision over which CalPX retained "sole
      declaratory judgment and permanent injunction against President Bush, the President of the
      United States.
      Newdow has suggested, as an alternative to enjoining the President, that this Court could
      enjoin PIC, which is involved in planning, financing, and executing the inauguration. See Pl.
      Supp. Mem. at 5. Under this theory, not only would the President be without assistance to bring
      clergy to the inauguration, but it can be assumed, argues Newdow, that the President would abide
      by the "authoritative interpretation of the . . . constitutional provisions by the District Court, even
      though they would not be directly bound by such a determination." Id. (quoting Massachusetts v.
      Franklin, 505 U.S. 788, 803 (1992)). Moreover, Newdow contends an injunction may be issued
      against a "key actor" even if some other party has the ultimate decision-making authority. Id.
      Putting aside the question whether the Court could enjoin a private entity, such as PIC, for a
      violation of the Establishment Clause, Newdow's alternative suggestion would not provide the
      relief he seeks -- preventing the inclusion of prayer at inaugurations. PIC's role in the 2005
      inaugural prayers was principally extending invitations to the clergy selected by the President.
      See PIC Mem., Ex. 5, Declaration of Gregory L. Jenkins ¶ 7. PIC noted at the motions hearing
      that, even if the injunction were to issue against PIC, the President could still extend invitations
      to the clergy on his own. See 1/13/05 Tr. 77:21-25. Furthermore, there is no basis to assume
      Page 14
      discretion." See id. To the extent that the California governor and PIC can each be viewed as
      "key actors" who lack authority to bring about the ultimate result desired by the plaintiff, Duke
      Energy supports Newdow's position. The analogy, however, ends there. Unlike in the present
      matter, the party with the ultimate discretion in Duke Energy -- CalPX -- had been poised, prior
      to the litigation, to take the action that the plaintiff desired, but was thwarted by the intervention
      of a tangential actor. Thus, the Ninth Circuit held, there was "nothing at all 'speculative' about
      tracing [plaintiff's] injury to Governor Davis's commandeering orders ...." See id. In the case of
      the Presidential Inauguration, there certainly has been no suggestion that, but for the involvement
      of PIC, the President would not have invited clergy to give an invocation and benediction.
      that this PIC will have any role in future inaugurations, or that its role will include inviting
      clergy. The Court therefore concludes that only an injunction or declaratory judgment against the
      President would provide plaintiff with the relief he seeks.
      The issuance of an injunction or a declaratory judgment against the President draws the
      Court into serious separation-of-powers issues. In particular, there is long-standing legal
      authority that the courts cannot issue injunctions against the co-equal Executive and Legislative
      branches of our government. See Mississippi v. Johnson, 71 U.S. 475, 500 (1866) ("Neither [the
      Congress nor the President] can be restrained in its action by the judicial department; though the
      acts of both, when performed, are, in proper cases, subject to its cognizance."). This principle
      has been articulated, throughout the years, by the Supreme Court and the D.C. Circuit. See
      Franklin v. Massachusetts, 505 U.S. 788, 802-03 (1992) (plurality opinion) ("In general, 'this
      court has no jurisdiction of a bill to enjoin the President in performance of his official duties.'"
      (quoting Mississippi v. Johnson, 71 U.S. at 500)); Commonwealth of Massachusetts v. Mellon,
      262 U.S. 447, 487 (1923) ("general rule is that neither department may invade the province of the
      other and neither may control, direct, or restrain the action of the other"); Clinton v. Jones, 520
      U.S. 681, 718-19 (1997) (Breyer, J., concurring) (acknowledging "the apparently unbroken
      historical tradition ... implicit in the separation of powers that a President may not be ordered by
      the Judiciary to perform particular Executive acts" (quoting Franklin, 505 U.S. at 802-03)); Swan
      v. Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996) (noting that the Supreme Court has issued a "stern
      admonition" that injunctive relief against the President personally is an "extraordinary measure").
      Although the language in these decisions is focused on injunctions -- which would be
      required in this case to prevent future inaugural prayers -- the reasoning is equally applicable to
      declaratory judgments. See Swan, 100 F.3d at 977 ("Although the following discussion is
      couched in terms of our ability to grant injunctive relief against the President, similar
      considerations regarding a court's power to issue relief against the President himself apply to
      Swan's request for a declaratory judgment."). Justice Scalia also explained in Franklin v.
      For similar reasons, I think we cannot issue a declaratory judgment against the
      President. It is incompatible with his constitutional position that he can be
      compelled to defend his executive actions before a court .... The President's
      immunity from such judicial relief is "a functionally mandated incident of the
      President's unique office, rooted in the constitutional tradition of the separation of
      powers and supported by our history."

      505 U.S. at 827 (Scalia, J., concurring) (quoting Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982)).
      Without a viable alternative to enjoining the President in this case, the Court must address
      whether it can issue an injunction or declaratory judgment against the President to achieve the
      result Newdow seeks -- i.e., to redress his alleged injuries. For all the broad language in the
      Supreme Court decisions regarding this question, this Court is unable to find a case in which the
      actual disposition turned on the inability of the courts to issue an injunction against the Congress
      or the Executive. See Franklin, 505 U.S. 803 (injury could be redressed by enjoining the
      Secretary of Commerce); Swan, 100 F.3d at 979 (injunction against executive director of

      Plaintiff contends that injunctive relief was in fact issued against the President in
      United States v. Nixon, 418 U.S. 683 (1974), and In re Sealed Cases, 121 F.3d 729 (D.C. Cir.
      1997). Neither case, however, involved a court order enjoining the President; rather, those cases
      simply rejected White House challenges to subpoenas on the grounds of executive privilege.
      Though there are functional similarities between declining to quash a subpoena of presidential
      documents and enjoining the President from refusing to surrender subpoenaed material, the
      distinction is more than a formalism because the latter situation involves the exercise of the
      coercive power of the judicial branch.

      National Credit Union Administration). On the other hand, neither the Court, nor any of the
      parties, has identified a case in which a court actually issued an injunction or declaratory
      judgment against the President for acts undertaken in his official capacity. No doubt the lack of
      cases is due in part to the fact that it is usually possible to enjoin a lower level official. See
      Nixon v. Sirica, 487 F.2d 700, 709 (D.C. Cir. 1973) (noting that actions against the executive
      should be directed at lower executive officials).
      Notwithstanding the lack of direct precedent, the Court need not engage in guesswork on
      this issue, because the role of the judiciary is to address the specific facts of the case before it.
      See Valley Forge, 454 U.S. at 472 ("legal questions presented to the court will be resolved, not in
      the rarified atmosphere of a debating society, but in a concrete factual context"). In Mississippi
      v. Johnson and in Franklin v. Massachusetts, the Supreme Court has sent a clear message that an
      injunction should not be issued against the President for official acts. The D.C. Circuit has
      echoed this view in Swan v. Clinton. Thus, under these cases and on the facts of this case --
      where only an injunction or declaratory judgment against the President can redress plaintiff's
      injury -- the Court is without the authority to grant such relief. To conclude otherwise, would be
      to render meaningless the words of the Supreme Court and the D.C. Circuit that injunctions and
      declaratory judgments may not be issued against the President. A district court should not
      disregard the strong pronouncements of the Supreme Court in the absence of other controlling
      law. See Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996) ("While these statements [of
      the Supreme Court] are dicta, this court considers itself bound by Supreme Court dicta almost as
      firmly as by the Court's outright holdings, particularly when the dicta is recent and not enfeebled
      by later statements."). Thus, the Court concludes that Newdow's alleged injuries are not
      redressable by this Court, and therefore he is unable to establish Article III standing.
      Another facet of the "case and controversy" requirement of Article III of the Constitution
      is the doctrine of mootness. Gulf Oil Corp. v. Brock, 778 F.2d 834, 838 (D.C. Cir. 1985).
      "Federal courts lack jurisdiction to decide moot cases because their constitutional authority
      extends only to actual cases or controversies." Iron Arrow Honor Society v. Heckler, 464 U.S.
      67, 70 (1983). Although none of the parties has asserted that this case is moot, the Court is
      obliged to address this question sua sponte because it directly affects jurisdiction. See id.; Mine
      Reclamation Corp. v. FERC, 30 F.3d 1519, 1522 (D.C. Cir. 1994).
      On January 20, 2005, President Bush held his second inauguration, which included
      religious prayer offered by the Reverend Doctor Luis Leon and Pastor Kirby Jon Caldwell.
      Plaintiff's verified Complaint seeks a declaration from this Court that defendants violated both
      the Establishment and Free Exercise Clauses of the Constitution by causing the clergymen to
      deliver the invocation and benediction. See Compl. (prayer for relief). He also seeks an
      injunction against "these defendants -- or similarly situated government officials" from utilizing
      clergy for religious acts at "future presidential inaugurations." Id. There are, however, several
      problems with granting either form of relief.

      With respect to the requested injunction against President Bush, any such order directed
      to the President would be ineffective for future inaugurations because he is constitutionally
      barred from serving another term, and thus will never have another inauguration. See U.S.
      Const. amend. XXII, § 1. As for the request for injunctive relief against "similarly situated
      government officials," Plaintiff's claim is unavailing because this Court's jurisdiction is limited
      by Article III to those parties to a "case or controversy" before the Court. See North Carolina v.
      Rice, 404 U.S. 244, 246 (1971) ("federal courts are without power to decide questions that
      cannot affect the rights of litigants in the case before them"). This Court is powerless to enjoin
      future unknown Presidents for future actions those Presidents may or may not take. See id. ("To
      be cognizable in a federal court, a suit 'must ... be a real and substantial controversy admitting of
      specific relief through a decree of a conclusive character, as distinguished from an opinion
      advising what the law would be upon a hypothetical state of facts.'").
      The fact that Newdow also seeks a declaratory judgment in this matter does not alter the
      mootness determination, because the jurisdictional prerequisite of a "case or controversy" applies
      with equal force to actions for declaratory relief. See Aetna Life Ins. Co. of Hartford, Conn. v.
      Haworth, 300 U.S. 227, 240 (1937) (Declaratory Judgment Act "is operative only in respect to
      controversies which are such in the constitutional sense"). Article III simply does not permit this
      Court to offer advisory opinions as to the constitutionality of actions for which no redress can be
      granted. See Brock, 778 F.2d at 838 (mootness "rests on the principle that a federal court has
      neither the power to render advisory opinions nor 'to decide questions that cannot affect the rights
      of litigants in the case before them.'").

      Furthermore, the ability of the Court to adjudicate an Establishment Clause claim such as
      this requires an inquiry into the words used in the prayer. See Marsh v. Chambers, 463 U.S. 783,
      794 (1983) (consideration of whether of the prayer is used to "proselytize or advance any one, or
      to disparage any other faith or belief" is relevant to the Establishment Clause claim). This Court
      already has adopted that analytical approach in its earlier decision on Newdow's motion for a
      preliminary injunction. See Newdow, 355 F. Supp. 2d at 283-88. Although a re-elected
      President's first inauguration might serve as an appropriate guidepost of the content of anticipated
      prayers at that President's second inauguration -- at least where, as in this case, the organizers do
      not aver that the tone of the prayers offered at the second ceremony would differ from those
      offered at the first -- this Court cannot now rule on the constitutionality of prayers yet unspoken
      at future inaugurations of Presidents who will make their own assessments and choices with
      respect to the inclusion of prayer.

      One might observe that the mootness analysis leaves a narrow temporal window for
      potential challenges to inaugural prayers on Establishment Clause grounds. Only after the
      identity of the President-elect is determined -- which generally occurs just two and a half months
      prior to the inauguration -- and only after the inclusion of an inaugural prayer, as well as its tenor
      (if not its precise content), is fairly certain, can a court conduct meaningful review (assuming that
      the complaining party has standing). Such constraints are undeniably exceptional, but they are
      hardly unique in our judicial system; and, while courts have developed an exception to mootness
      for cases that are "capable of repetition, yet evading review," the circumstances of this case do
      not satisfy the requirements of that exception. See, e.g., First Nat'l Bank of Boston v. Bellotti,
      435 U.S. 765, 774 (1978) (stating that, in order for the exception to apply, "the challenged action
      [must be in] duration too short to be fully litigated prior to its cessation or expiration," and there
      also must be "a reasonable expectation that the same complaining party [will] be subjected to the
      same action again."). As the earlier proceedings in this case reflect, the period between a
      President's election and inauguration is not too short to permit judicial review.

      For these reasons, the Court will grant defendants' motions to dismiss. A separate order
      has been issued on this date.

  •  CHEERS: Glenn Greenwald (0+ / 0-)

    I have watched Glenn Greenwald grow and evolve into one of the smartest voices the Democrats could have.  My  hope is that all of the Democrats are reading his blog on a daily basis as I do.  

    Glenn is absolutely brilliant.  His writing is solid and informative.  He makes you think.  He puts the MSM stenographers to shame.  I love it when he takes on the  media ...especially the Politico.  He takes no prisoners with his commentary.

    I plan to purchase his book today "A Tragic Legacy".  I hope everyone will purchase this book and support Glenn.  

    I heard Glenn on The Rachel Maddow Show last night and he was awesome.  

  •  #5 (0+ / 0-)

    I truly wish I could believe otherwise, but I just can't. I would dearly love to be wrong on this.
    They may attempt #4 first, but Bush isn't going to budge an inch, and even this Congress won't accept no transcript, not under oath interviews instead of real testimony. So they will delay, give the Admin. more time, sputter, complain, go on the talk shows, and finally decide that it will be a dstraction from the important business of campaigning.
    I'm sorry folks, I truly am, but thats how it will go.

  •  Thanks Kagro X (0+ / 0-)

    I meant to add this to my other comment, but it deserves it's own spot anyway.
    Thanks for your clear and concise explanations of this sort of stuff Kagro X. All the legalease is over my head, and I appreciate your easy to digest summaries of what is going on and what the options are. If only our poor broken major media could be so informative. You are a treasure.

  •  Does anyone know how to get a sign up (0+ / 0-)

    on the san fransisco highway? I'd be willing to put money into it if you guys would too.

    just have it be simple and direct "Tell the speaker if impeachment is off the table, she is too. (202) 225-0100"

  •  And Then There's the 82nd Airborne (0+ / 0-)

    So this is one way it may play out.

    The Senate Sergeant at Arms corps, a handful of officers with 9mm sidearms at the ready, march down PA Ave to the front door of the White House.  Their mission, bring the contemnors to the bar of the Senate.  They knock firmly on the door.  They get no response.  They knock again.  Nothing.  They demand to be let in.  In the distance the sound of a single helipcopter inbound is heard.  Did I say one chopper?  The Dance of Valkyries whispers over the Potomac.  Two, three, a dozen.  The sky over the mall darkens and the rumble becomes a roar as 100 Air Cavalry copters in attack formation knife northwards.  The 82nd Airborne is on the move.

    Are they serving the constitution or an out of control executive?

    State tuned for our next exciting episode of "The Empire Strikes Out"

    Libertarian with a Social Conscience.

    by hegemony57 on Thu Jun 28, 2007 at 12:43:03 PM PDT

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