It took a few moments to get the call started, but it started with a quick outline of the issues. A senior official called Congress' action an extraordinary act. Congress has never attempted a contempt citation against a president's staff in our history. The action is even more outrageous in this context, considering the President's offers to cooperate in the probe. They have released 8500 pages of documentation, and a number of officials have testified or been interviewed as part of the probe. Bush also offered to allow senior members of his staff available in "an interview setting" -- but no oath or transcription, as Presidents have always maintained that Congress has no authority to demand testimony from presidential advisors.
Executive privilege is particularly strong in this case. The power to hire and fire federal prosecutors belongs exclusively to the executive branch. Congress has no particular oversight in these matters, and so the executive privilege claim is very compelling in this instance.
The White House feels that this is just an attempt to embarrass the administration. In fact, Congress has no power to compel prosecution of such a contempt charge from federal prosecutors -- which Pat Leahy confirmed in 1999, in a similar situation during the Clinton administration. It is "of a piece with other actions we have seen," including the subpoena for Karl Rove, which he will not honor.
Questions:
* If Congress pursues criminal contempt and the DoJ refuses to prosecute, how do they move forward? -- No one really knows. There isn't any precedent on this point. The White House's offer to cooperate remains on the table. The pursuit of this prosecution would be unconstitutional, as Congress cannot order a federal prosecutor into action.
* [My question] Who's more at risk if this goes to the Supreme Court, and does the administration expect the normal course of a civil complaint? -- They will be met at the courthouse door if they do file the complaint, and that's the course the White House expects. The risks seem more for Congress in finalizing a Supreme Court decision on executive privilege. If the Court rules in favor of the administration, it will set a precedent that will allow the executive branch to ignore these kinds of probes in the future. Perhaps Congress already recognizes the risk -- and that's why they're pulling publicity stunts.
The criminal contempt process hits on separation of powers issues. If Congress went to the Court through a lawsuit, at least it would make sense in a mediation sense.
* What about the call for a special counsel on Alberto Gonzales? -- The law no longer exists for an independent prosecutor, and the "special counsel" is accountable to ... Alberto Gonzales. It doesn't make a lot of sense, but then again, neither does much of what Congress has tried in this probe, either.
* How do you assess the risks for the executive in this case? SCOTUS has hinted that executive privilege is not unlimited, and that allegations of criminal activity could overcome it -- There has been no evidence of criminality in this probe, so they don't consider it to be very risky at all. The question the court would address will be whether the President properly applied executive privilege, not so much on content but more on process. Most of these areas have not been litigated to any degree -- and that may be why Congress has gone through the criminal process instead.
* Any concern that this is a prelude to impeachment, gathering material for a new effort to remove Bush? -- The Speaker has ruled that out, and the senior official hopes they see the futility of that path. However, this Congress has gone out of their way in breaking precedent in this probe, so no one really knows.
* Congressional oversight; why can they exercise oversight over agencies but not the White House, and what does that have to do with the concept of the "unitary executive"? -- The difference is that the President cannot be subpoenaed, and neither can his advisors, who do not require Congressional confirmation to serve. The President has the power to order them to keep silent about their advisory activities.
Please head over to CQ because I didn't quote his excellent analysis, you need to go read that there for yourself.
All good questions here and once again, the Democrats seemed to have backed themselves into a corner that they are not going to be able to get out of without losing a considerable amount of power in the process.
The continually amaze me at their ability to shoot themselves in the head.
For the key details without all the hype, go on over to The Washington Times/Fishwrap for the key details on the Gonzales situation.
Another ramification of the Democrats policies is the damage to our capabilities to protect ourselves, as shown in the Wiretap Debacle at Opinion Journal.
Others making excellent points about this are Power Line, Betsy's Page and Macsmind.
Tracked back by:
The Dimwitted Losers of Reid/Pelosi from Take Our Country Back...
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