Executive Privilege: Let Congress's Contempt Suit Proceed

In 2001, three economists won the Nobel Prize in Economics for a simple yet powerful insight: When people bring different information to the table, the imbalances in their knowledge create frictions, whether in deal-making or personal relationships.

Today, one such informational asymmetry -- where one party knowing a lot more than the other -- is taking on constitutional dimensions, and the Administration's efforts to use that asymmetry to its advantage threatens the integrity of the federal government, now and in the future.

Among the three branches of government, it is today the executive that generates the lion's share of information and also poses the largest risk to individual liberties. In a dangerous world, it is the executive that is assigned the tools to respond to that danger -- be it public corruption, reliance on foreign oil, or terrorism. Hence, it is also the branch that poses the greatest risk to our own liberties and the branch in greatest need of oversight.

Because presidential elections every four years are simply not fine-grained enough to pick out and condemn abuses and criminality, there is a need for more routine accountability devices.

But this particular Administration is now using "executive privilege" in novel ways that block the routine forms of accountability from moving forward. The result is an unhealthy stalemate that is sapping the incentive of executive branch officials to follow the law. .

Since Watergate, few have doubted that government officials occasionally violate the criminal law for petty partisan ends. Yet, even in areas in which civil rights and civil liberties are at stake, it is unclear how, in practical terms, such wrongdoing ought to be investigated. Congress is constitutionally charged with oversight of the Executive Branch. But it cannot possibly scrutinize every single executive act.

This is especially true given the executive branch's spectacular growth over the past 80 years. Unlike the first 150 years of American history, the postwar era has been characterized by a swelling federal bureaucracy, which has taken responsibility for almost every area of life--from drug enforcement to mortgage policy, from flood protection to the countering of novel terrorist threats. Even since the Nixon era, the work of the federal government has expanded greatly, increasing too the opportunities for waste, fraud, and abuse.

Determining how to police effectively this massive and ever-growing bureaucracy is a matter of increased urgency due to the encroaching election and the questions left unresolved from the 2006 firing of nine U.S. Attorneys. Credible allegations indicate that these prosecutors were forced out in relation to efforts to use federal prosecutions to influence congressional election results. While public interest in that sordid tale has dimmed, the coming 2008 election raises not merely the possibility of fresh meddling, but also the risk that the current administration--and the information in its possession--will leave office without a full accounting. .

Congressional and journalistic efforts to determine who ordered any partisan interference have been stymied. Officials from former Attorney General Alberto Gonzales to former White House political director Sara M. Taylor testified before congressional but didn't answer crucial questions about who ordered the firings and why. Glaring omissions--and Mr. Gonzales's sixty-four instances of "memory loss" in one sad April 2007 hearing--strongly suggest the White House still owes the American people straightforward answers.

Yet the White House has steadfastedly refused to provide these answers. Instead, it is blocking subpoenaed officials such as White House chief of staff Josh Bolten and former White House counsel Harriet Miers from speaking in any way that risked effective investigation

To do so, it has invoked the cloak of "executive privilege." When the House of Representatives voted to hold Miers and Bolten in contempt for their failure to comply with congressional subpoenas, moreover, the Justice Department flatly refused to enforce the criminal contempt statute against them.

Now, the House is seeking to enforce the subpoenas itself in the Washington D.C. federal courts. The Administration is taking the extraordinary position that Congress cannot use the federal courts to enforce its own subpoenas.

Even if private litigants can enter the federal courts to seek disclosures from the executive, Justice Department lawyers now argue, Congress--which has a constitutional obligation to investigate and uncover executive wrongdoing--is barred from the courthouse. Short of disruptive and costly tactics such as arresting Bolten and Miers or impeaching the President, government lawyers claim, Congress can do nothing to investigate wrongdoing in the White House.

The White House's effort to stop the enforcement of congressional subpoenas is deeply wrongheaded. No court has ever categorically barred Congress from challenging executive action in the federal courts. To do so now would encourage future presidents to refuse congressional requests for information--knowing that they would never have to justify their refusal to a neutral arbiter--even when actual wrongdoing is at stake. While Congress and the executive have generally reached compromises on access to information before, shutting the courthouse door would destabilize this tradition of negotiation: There would be no longer be a cost to the President for refusing even warranted disclosure.

By refusing to acknowledge its responsibility of candor--especially when substantial accusations of criminality in the executive are on the table--the White House is making a dramatic break from that tradition of accountability and accommodation.

Worse, a refusal to hear the House of Representatives suit would in effect create an area of darkness in the Constitution's heart where executive officials would be free to leverage federal criminal law against partisan enemies, as appears to have happened in Alabama Gov. Don Siegelman's prosecution.

This is hardly a Constitution of checks and balances as the Framers intended. And the implications of such a development resonate far beyond the question of partisan prosecutions.

The Executive Branch is more determined than ever to hold on to its secrets. But this enforced "informational asymmetry," not fully anticipated by the Founding Generation, demands more, not less, legislative oversight and intrusion. Congress has an especially vital role to play in an age of massive domestic surveillance in violation of basic privacy rights and "erroneous" transfers to torture. For if Congress is not permitted to complete its investigation into the U.S. Attorney firings, it is unlikely that it will be able to excavate the facts surrounding other misconduct, such as these grave abuses of national security powers.

The House of Representatives' contempt suit is an important part of the ongoing effort to preserve the Constitution's checks and balances system. Its threshold dismissal before the election would not only deprive the public of information it needs to assess fairly the performance of this Administration. It also risks casting an enduring shadow on the constitutional order.

Comments

[lthuedk 1]

Hasn't it reached the point of physical arrest yet? It is the duty of Congress to arrest and charge violators of subpoena, just as if you or I had willfully thumbed our nose at the Law.

So...when??? Why does Congress wait for the junta's response when it is Congress that must assert itself when it witnesses a criminal act in the public's face?

Arrest!

http://www.light-to-dark.com/four_lapel_pins.html

[Lemeritus]

There should be a daily "watch" on this story, here if not in the MSM.

"The Administration is taking the extraordinary position that Congress cannot use the federal courts to enforce its own subpoenas." I don't even have words to express the outrage I feel. This not some gaffe or peccadillo of an eccentric administration -- this is treason! Some may argue the narrow definition provided in the Constitution, but US Code Title 18, Chapter 115 - Treason, Sedition, and Subversive Activities takes a sharper look:

Section 2384: ...conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof...
Section 2385 : ...knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States... OR THE GOVERNMENT OF ANY POLITICAL SUBDIVISION THEREIN...
Section 2388: ...willfully makes or conveys false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States

Congress can't use the federal courts?! Outrageous!

[lobo1939]

Great article except that I beleive a greater constitutional crisis is looming in the future when the ICC hands down inditments against the Bush team. Then the question, constitutionaly for the US government is whether we are going to hand them over. Maybe they will all move to a fascist friendly country like Argentina and take the Coors, Hunt and Buckley families along with them. Reminess with Mengela's proginy.

[Shaddup]

I've heard it said, "Theres a reason they have a prison cell in congress." Maybe it's in the senate house, but there's a reason it's there. We need to use it. We are supposedly having a war on a tactic (which is impossible, by the way) called terrorism. This means if we don't have the information from the executive branch, they may very well be "terrorists." Evidence ranges from Siegelman to extraordinary rendition to 1 MILLION missing e-mails the MSM never even seem to mention. We simply need a deputy of the court to bring people in for questioning. Just questioning, no arrests, cops do it all the time. If the executive branch protests we need only remind them of their own words, "If you've done nothing, then you have nothing to fear."

[Sundialsvc4]

" 'Any civil officer' SHALL be Impeached for ..."

"This Constitution is the SUPREME LAW of the Land ..."

Do these words mean anything? Not as long as all three Branches of this Government are co-conspiring to engage in high crimes and to protect one another from criminal prosecution. A government is only what you make it.

Me... I feel like a plaintiff. Me an' about 300 million of my best friends.

If I were to walk into a Grand Jury and the lead judge winked at the local crime-lord and said, "Good morning, Harry!" and rubber-stamped an order of no-bill, then I would be justified in thinking that there were at least two crooks in that room, and that one of them was wearing a black robe. I feel this way today. If this hallowed piece of paper guarantees me "equal protection under the laws," then my question is... how do I get that? If it says "shall be impeached," then where exactly is the magic footnote that begins with the word "except?"

Is this really so hard to understand?

Don't we all see the enormous damage that this lawlessness has caused to every one of us?

[drblack]

Great article.
The destruction of American freedom is almost completely ignored by the Corporate Media.
What can one expect from republicans though? Republicans supported and elected a man (Bush) who said that the Constitution is "Just a goddamn piece of paper"
How could anyone who supports Freedom and the Constitution support Republicans when they stand behind a President who doesn't uphold the Constitution.
Bush is a traitor. When the facts come out from behind the republican Wall Of secrecy it will be even more obvious that Bush is guilty of Treason. By simply going over what is already known Bush has clearly
betrayed his Oath to uphold the Constitution. He has broken many laws.
Restoring American Freedom must be the top priority of the next President and Congress. Freedom is what has made America great and it is what defines us. Freedom is the base The USA was built on and if it crumbles, America will fall.
All legislation made after 9-11 must be repealed. We have laws to deal with terrorism already. The so called "Patriot" Act is one of the most anti-American,Freedom destroying bills ever passed. It is something that China or the USSR would pass. It makes us no safer but it is the beginning of a Police State.

[legalgirl]

"Short of disruptive and costly tactics such as arresting Bolten and Miers or impeaching the President, government lawyers claim, Congress can do nothing to investigate wrongdoing in the White House."

Then arrest them and do it now. Also, is the" inherent contempt" option off the table? That tactic goes around the DOJ. I'll bet Waxman, Wexler, Conyers, Pelosi, Reid have a plan, but they're used to operating without a public microphone, because the press coverage is so stupidly quiet about anything of consequence. When Conyers was asked by a TV host if he would commence impeachment proceedings against Bush, he said, "Okay. I'll go back to my office and get started on it right now."

[MelloY]

Thank you for this post. The Bush administration's abuses of power and our Congress' failure to use its power to uphold its constitutional responsibilities are greater threats to our country than any foreign enemy. I hope a time comes when the truth is realized by the majority of this country. At the very least, the next administration and Congress must pass laws to close the holes in our system that have allowed these abuses of power.

[hopeless277]

Sorry, but soon it will come out that Nancy Pelosi took subpeonas off the table also. Along with many other articles from the Constitution that Bush didn't like. Our Dems in congress are a disgrace. All those hundreds of thousands who died for our constitution and this is the thanks they get. A cowardly speaker who picks and chooses which sections to follow. Hell, she's probably never read the damn thing. Wouldn't surprise me a bit.

[dadw5boys]

Well keeping impeachment on the table was slly when you don't hold the VOTING MAJORITY.

Having the simple majority is just not enough.

[timm0]

Voting majority concept only applies to the Senate. Impeachment is done by the House. Guilt or innocence is determined by the Senate - and i don't believe that an impeachment ruling is subject to cloture....