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Subpoenas, Executive Privilege and Liberal Pipedreams

Congress Needs to Stop Playing on Bush’s Court

by DAVE LINDORFF

There are two ways to look at the growing confrontation between Congress and the White House over access to information.

Either the administration is suckering Congress into a fight, confident that the Democratic Congress will back down and forever surrender its role as a co-equal branch of government, or that it will bring its contempt citations to federal court and lose, thanks to all those right-wing Federalist judges that Reagan, Bush I and Bush II have stacked the judiciary with from bottom to top.

Or, Congress is pushing the administration to a point that Democrats will be forced to initiate impeachment proceedings.

Naturally, for the sake of the Constitution, and the survival of a government with at least a semblance of democracy, I’m hoping it’s the latter. It would be nice to think that Speaker Nancy Pelosi and others in the party leadership have all along been acting on a belief that the American people don’t want impeachment, and have to be brought along to a point that they agree there is no alternative. It would be nice to believe that these leaders really do understand that the Constitution is under grave threat, and that Congress itself is under assault by the administration, but that they just want to be pushed to the wall before they take the required action.

The problem is that if this were the behind-the-scenes strategy, we would not have seen the party leadership actively working to undermine the national grass-roots impeachment movement. We would not have seen senior Democratic elected officials like Sen. Bernie Sanders, Sen. Patrick Leahy and Rep. Peter Welch of Vermont, or Sen. Patty Murray and Rep. Jay Inslee of Washington twisting arms of legislative leaders in those two states’ legislatures in order to prevent passage of joint legislative resolutions calling on the House to impeach. We would not have seen a clearly pro-impeachment representative like John Conyers (D-MI) hammered into an embarrassed silence on impeachment for fear of losing his coveted chairmanship of the House Judiciary Committee. We would not have seen 39 representatives who, in 2006 were signing on to a bill that called for an investigation into impeachable crimes sitting on the sidelines on that issue ever since Election Day in November 2006. We would not have seen Dennis Kucinich’s bill calling for Cheney’s impeachment (H. Res 333, submitted on April 24) languishing in the in hopper for over two months without getting a hearing in Conyers’ Judiciary Committee.

So I think this theory of Congressional behavior is simply a liberal pipe dream.

That leaves us with the other scenario: The White House, recognizing the timidity of Congressional Democrats, and its own edge in the courts, has decided to go for broke by challenging Congress to a duel. Certainly the blatant way that Bush has refused to budge on his Iraq War escalation or on Congressional requests for information about issues like the political firing of prosecutors, the warrantless spying on American citizens, or the destruction of improper White House emails, or that Vice President Dick Cheney has refused to provide information of any kind to congressional committees seems designed to taunt Democrats into issuing subpoenas. And the refusal to comply with those subpoenas seems designed to taunt Democrats into declaring the administration in contempt, which puts the issue into court.

Does anyone want to bet on how that will go?

Of all federal court districts, with the exception of Texas, Washington, DC is the most conservative. Larded with Federalist Society judges who believe that the executive branch is supreme, not co-equal with Congress, the odds of the White House’s drawing a judge who will rule in its favor, and of then getting an Appeals Court that will uphold that ruling, are pretty high. And then of course, even if the White House had bad luck, and got an unfavorable lower court ruling, there’s the Supreme Court, which is showing itself to be solidly Federalist.

What this means is that Congress should shift its strategy, and go straight to impeachment.

Why? Because an impeachment hearing is not the same as other Congressional hearings.

Impeachment is a process clearly defined and laid out procedurally in the Constitution. It calls for the House Judiciary to become an Impeachment Committee, giving it a special distinction of being Constitutionally empowered to do its task of investigating presidential or administration wrongdoing. What that means is that a president has no right to claim "executive privilege" or "national security" when asked to provide officials to testify, or to turn over documents.

Of course, the administration could stonewall in the same way it is stonewalling current congressional investigations, but it could not count so readily on the cooperation of ideologically supportive judges this time. Certainly there are political hacks on the federal bench who would vote the president’s way no matter what the issue (Judges Clarence Thomas and Sam Alito come to mind), but I’m not so sure that Chief Justice John Roberts, or even Justice Antonin Scalia fall into that category. To the extent that these and other Federalist Society judicial appointees take their ideology of "original intent" and their role as justices seriously, they would have to find that an impeachment committee demand for testimony or documents trumps such claims as "executive privilege" or "national security."

The administration would likely lose those battles at every level.

So now Congress has a choice: risk permanently destroying the carefully balanced system of tri-partite government established by the Founding Fathers over two centuries ago by playing the president’s and vice-president’s game of chicken over subpoenas, or change the game and begin impeachment proceedings immediately.

It’s a decision that will have to be made soon.

Let your representatives know what you want them to do. Go to: Democrats.com

DAVE LINDORFF is the author of Killing Time: an Investigation into the Death Row Case of Mumia Abu-Jamal. His n book of CounterPunch columns titled "This Can’t be Happening!" is published by Common Courage Press. Lindorff’s newest book is "The Case for Impeachment",
co-authored by Barbara Olshansky.

He can be reached at: dlindorff@yahoo.com