This bit of news has largely been overshadowed here at Dkos and elsewhere amidst the ongoing primary battles and growing economic angst. Both seem to monopolize all our time lately.
However, I feel this is an important issue facing our country right now and I’m going to try to expound on it here so we're able to keep the pressure on Congress.
John Conyers has now set the stage for a legal battle [for the ages] that could potentially redefine the power struggle between the White House and Congress.
To review just a bit, the lawsuit challenges the Bush regime’s attempt to disregard contempt of congress charges against former White House aide Harriet Miers and current White House Chief of Staff Josh Bolten, resulting from the USA firings. The outcome of the landmark case could limit the president’s power in a big way; allowing Congress to bypass the Department of Justice while it investigates the inner workings of the White House.
As you know, Attorney General Michael Mukasey recently blocked his Justice Department from prosecuting criminal contempt of Congress citations approved by the House back in February against the aforementioned White House aides, who, on President Bush’s word, defied Congress’ order to provide testimony and documents regarding the firings of nine U.S. attorneys by former attorney general Alberto Gonzalez. Since that time, many Americans -- especially the left blogosphere – have grown angry and frustrated with Conyers for not utilizing a little used congressional power called "inherent contempt" -- which is an arcane congressional authority allowing Congress to prosecute contempt charges internally instead of having to rely on the justice department to carry out orders. The process could conceivably result in the arrest and incarceration of both Miers and Bolten, carried out by the House sergeant at arms. However, many experts believe the power risky.
Mother Jones has the story:
"There is something of a sense that it is not productive for Congress to use its inherent contempt power," explained Mark Agrast, a constitutional law expert and senior fellow at the Center for American Progress. "It's just too unwieldy and too untried to be used in the modern era."
In fact, in the motion currently before the district court, the House Judiciary Committee dispensed with that option, contending that if it invoked its inherent power, the House would ultimately find itself arguing the contempt issue before the same court, but at a much later date.
On the day the House voted [along partisan lines] to pursue criminal contempt charges against Miers and Bolten, White House spokesperson Dana Perino stated that the congressional order was essentially "a partisan, futile act," and that the Justice Department wouldn’t enforce the order. The White House ordered the U.S. Attorney for the District of Columbia, Jeffery Taylor to refuse to take up the case.
"This is a surprising obstruction of the process by [the administration]," said Jonathan Turley, an authority on constitutional criminal procedure and a law professor at George Washington University. "Many constitutional experts, including myself, have concluded that the Congress clearly has the better position. The White House has clearly overextended the scope of executive privilege."
The Judiciary Committee is seeking a fairly narrow ruling from Judge John D. Bates—one that would compel Miers to attend hearings before the committee, and order both Miers and Bolten to divulge the nature (though perhaps not the contents) of a bundle of undisclosed documents over which the White House is claiming executive privilege. But the civil filing is a legal maneuver without precedent, and therein lies the possibility that the White House could prevail despite what experts view as a weak legal standing.
It was last year when the nonpartisan Congressional Research Service (CRS) released a report suggesting that a civil suit could move forward. According to the report, the likelihood is that a reviewing court will find no legal impediment to civil enforcement of subpoenas and other House Judicial Committee orders.
Mr. Turley explains:
"The problem with going to court is that you risk a negative precedent," explained Turley. And it's a risk for both sides. On one level, Bates could simply decide that Congress has no standing to pursue the enforcement of contempt citations in a civil court, setting a precedent that could close the civil court avenue to Congress permanently.
But if he doesn't throw the case out altogether, and instead issues a ruling on the merits of the case, his decision will almost certainly be appealed to the Circuit Court for the District of Columbia by the losing side, a process that could take the case to the Supreme Court.
"If the court agrees [with Congress], I suspect the White House will file an appeal [based] on the calendar—not the issue," said Turley. "I doubt Mukasey and the DOJ believe they have a case, but [the administration will be] simply trying to run out the clock." Judge Bates has scheduled arguments to begin in the case on June 23.
Turley and others believe that if the case is not settled by the time the current session of Congress expires in December, the White House could contend that the subpoenas have expired also. They will no doubt at that time call for the matter to be closed permanently. It will be at that point where Congress will need to readdress the matter when the new Congress is seated in January 2009. That’s when the new Congress will need to coordinate with the new [Democratic] administration to begin investigation anew, and then reopen the case.
If they don’t, not only will the question of the legitimate scope of "executive privilege" remain unresolved but also the Bush regime -- the single most corrupt administration in the history of the United States -- will for the most part go unpunished. That is, unless We the People force the new Congress and President Obama to pursue a thorough investigation of the myriad crimes committed by this gang of scofflaws and war criminals.
The Bush regime going scott-free? I DON'T THINK SO.
That’s not the way this story ends.
Peace