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March 19, 2007

What To Take From The Man Who Has Nothing

I always figured it would be over testimony on war intelligence rather than personnel matters, but it looks like prosecutor-gate may finally trigger that Constitutional crisis we've all been anxiously awaiting. Democrats are determined to get Gonzales and Rove under oath and before committee; Bush is determined -- or so it seems -- not to put him there. What's not clear to me, though, is what Congress can actually do. The Bush administration has nothing to lose by throwing this to the Courts. They're already wildly unpopular, so another public image hit will hardly be noticeable. Their agenda is totally stalled, so it's not as if they'll lose momentum. The White House isn't putting forth a successor, so they're not trying to protect anyone's political career. In the end, the administration is in such total disrepute that there's scarcely anything more that Congress can take from them. What sort of leverage does the Senate actually have?

March 19, 2007 | Permalink

Comments

> Bush is determined -- or so it seems -- not to
> put him there. What's not clear to me, though,
> is what Congress can actually do. The Bush
> administration has nothing to lose by throwing
> this to the Courts.

"Judge Roberts has made his decision; now let him enforce it". I mean seriously, what is Congress going to do when the key members of the Bush Administration simply state that under the Unitary Executive neither Congressional subpoenas nor Supreme Court decisions apply to them? The Secret Service takes the President's orders and is larger and better-armed than the Capitol Police.

Oh - you think the traditional media will make a big stink about it? The "he said-she said, cover both sides of the controversy" media? They will be so busy falling over themselves to be "fair" and "even-handled" and "not show liberal bias" that they will forget to inform the nation that there is a Constitutional crisis.

Cranky

Posted by: Cranky Observer | Mar 19, 2007 8:06:10 AM

This is why we have impeachment. If we can succeed in framing this right (maybe something along the lines of "coverup" and "obstruction of justice"), we can put a lot of Senators in the position of having to defend votes against impeachment to their constituents, votes that will be very visible and highly unpopular. Do you think Norm Coleman is going to want to do that? Susan Collins? Gordon Smith? At some point, Mitch McConnell would take Bush and Cheney aside and suggest the Ford Maneuver, installing someone like Fred Thompson or Condoleeza Rice as president, just to save the Republican Party.

Posted by: Greg | Mar 19, 2007 8:45:51 AM

I think you're largely correct, but it would still put Republican candidates in an interesting position--asking them whether they support the law or the president. If they push themselves from the president, they'll lose the primary. If they stick close to him, they'll lose the general.

It also could color the Iraq/Iran debate. If the president can't be trusted to follow the law, can he be trusted to lead wars?

Posted by: Consumatopia | Mar 19, 2007 8:45:51 AM

Constitutionally speaking, the leverage that Congress has is quite obvious. If Congress issues subpoeanas that the Administration defies, and if the courts uphold the subpoenas but the Administration continues to defy them, then Congress has a final recourse -- impeachment and removal from office. Remember that contempt of Congress was the grounds for the third article of impeachment that the House Judiciary Committee passed against Nixon, under very similar circumstances.

The political issues are another question; but you asked about the leverage that Congress has in a constitutional battle against the President, so there's your answer.

Posted by: Buckeye Hamburger | Mar 19, 2007 8:57:50 AM

The Democrats could make political life very difficult for other Republicans by making the administration seem arrogant, corrupt, and inept (which of course it is). If those other Republicans feel that Bush is going to drag them down too, they'll turn on him. Geeze, looks like a win-win to me.

Posted by: MarvyT | Mar 19, 2007 9:09:43 AM

Agreed (with Marvy): Win-win. Nothing will be resolved through the current House investigations. Better to have WH plead implied guilt through their lack of cooperation.

So the do-nothing gesture has a collateral benefit: Two-plus years of "What does the GOP have to hide?"

Posted by: jimmmm | Mar 19, 2007 9:20:28 AM

It's worth saying that I highly doubt that Court will cross Bush. I'm sure that the first questions Roberts and Alito got were about how totally committed they were to the unitary executive.

Posted by: Ezra | Mar 19, 2007 9:24:02 AM

A number of comments along the lines of "Democrats in Congress could make life difficult for Republicans", presumably leading to them being shamed into supporting impeachment and/or losing elections in 2008. The problem is that this theory supposes (1) support for this shaming from the traditional media, as happened during Watergate (2) no large-scale counterattack from the Republicans (orchestrated and directed by the Radicals). I don't see any evidence of (1) (look at the traditional media's coverage of the Libby trial and Plame testimony) and I fully expect (2). In fact 2 feeds into 1 because once the Republicans start counterattacking the traditional media must "cover both sides of the story" and "not take sides".

Cranky

Posted by: Cranky Observer | Mar 19, 2007 9:37:02 AM

I don't know... but I think what's intruiging is that all possibilities are in play and really, only bad things can happen for Republicans and the Administration. A sensible person would say fire Gonzales, and maybe ship Rove off to the RNC. But they're not sensible, so who knows? I dream of spectacular implosion in which the subpoenas are issued the White House defies them and Republicans wind up in a self inflicted massacre as the 2008 candidates finally are forced to run away from the President. I'm trying to see the downside for Dems... but I don't see it.

Posted by: weboy | Mar 19, 2007 10:07:39 AM

"What sort of leverage does the Senate actually have?"

Zero.

Or more accurately, they have leverage to bootlessly press the issue to keep it in the press, but zero leverage to actually compel testimony.

Posted by: Petey | Mar 19, 2007 10:30:23 AM

"The problem is that this theory supposes (1) support for this shaming from the traditional media, as happened during Watergate (2) no large-scale counterattack from the Republicans"

I don't doubt that the Republicans will counterattack. But the public is becoming less and less inclined to listen to what Republicans have to say about anything. As for the media, once impeachment talk starts to get serious, their frames of reference will be Lewinsky and Watergate. The Clinton impeachment was widely perceived by the public as complete bullshit, even in the face of a compliant media, and a Republican attack machine. (Which, incidentally, gives me a lot of faith in the American people's sense of what is a serious scandal, and what is just partisanship). Watergate, on the other hand, was and is seen as completely legitimate. It will be immediately clear that the current scandal resembles the latter much more than the former. And on top of it, you have many Repubicans who were in Congress for the Clinton impeachment and voted for it. It won't be hard to establish that this is a much more serious scandal, so it will be easy to get the meme out that if a Republican voted for Clinton impeachment, but against Bush impeachment, they're a hypocrite and a partisan.

I don't think it will be easy, and it will require a nearly unheard of level of unity and media discipline from the Democrats. Whether we succeed in removing Bush and Cheney or not, a serious impeachment drive will kill the Republican party as it currently exists.

Posted by: Greg | Mar 19, 2007 10:53:14 AM

You're right, but the Dems still need to push it; it'll give them more ammunition in the 2008 election.

Posted by: beckya57 | Mar 19, 2007 11:19:57 AM

Biggest problem is that the press (ever compliant to Repub/status quo interests) will trumpet any non-participant Dems as an achilles heel, or proof of the spuriousness of the motions.

And of course there will be those 5-10 Dems who oppose.

That being said, the more the Dem leadership sinks their teeth into getting Gonz and Rove to testify, the more optimistic I am.

***The real danger is what happens in the long run as R's take going after Dem presidents to be a metter of principle. A Republic in which the executive is routinely attacked "just because" is not destined to be a Republic for long.***

Posted by: chimneyswift | Mar 19, 2007 11:46:42 AM

Ezra's comment implicating that Alito and Roberts might be "totally committed" to the unitary executive, had me alarmed, so I did a little Googling. I found an interesting article by Jeffrey Rosen from January 2006 suggesting that there might at least be some hope with Roberts, quoting him as saying that, "If the executive has acted unconstitutionally, [courts] have the obligation to block the executive action," and suggesting that he might be willing to limit presidential power.

But shockingly, it seems that Alito really is a radical adherent of the unitary executive.

Even so, how exactly could the Supremes reason that subpoenas of DOJ concerning the US Attorney scandal can be quashed on the grounds of the unitary executive? The court acknowledged the existence of an executive privilege in US v. Nixon, but also that Congress has a right to investigate a corruption scandal. And the White House has not raised national security in any form in response to the USA scandal.

God knows, the concept of "unitary executive" is mind-bogglingly broad, but does it extend so far as to say that the CinC can even break the law concerning matters that have nothing to do with being CinC?

Posted by: Buckeye Hamburger | Mar 19, 2007 11:54:11 AM

> God knows, the concept of "unitary executive" is
> mind-bogglingly broad, but does it extend so far
> as to say that the CinC can even break the law
> concerning matters that have nothing to do with
> being CinC?

In the Radical Republicans' view, the President is not just the Commander-in-Chief of the US armed forces (as written in the Constitution); he is the Commander-in-Chief of the _entire nation_ at _all times_. Read their writings; they literally worship the "CINC" and believe he can invoke dictatorial powers with a wave of his magic "CINC wand". This is how they think.

Greg - my heart hopes you are right. My head tells me that isn't the way it will go - the traditional media sets the narrative and they do not see themselves in the same role as during the Watergate era anymore.

Cranky

Posted by: Cranky Observer | Mar 19, 2007 11:59:27 AM

That's an excellent point Ezra. And I think that given the democrats in congress well known fear of taking this administration to the proverbial mat (we promise we won't impeach his highness) that nothing much will come of this. Sad, but true.

Posted by: ice weasel | Mar 19, 2007 12:27:45 PM

Mark Kleiman has posted about this question.

Posted by: KCinDC | Mar 19, 2007 12:34:57 PM

when the key members of the Bush Administration simply state that under the Unitary Executive neither Congressional subpoenas nor Supreme Court decisions apply to them

I'm sure that the first questions Roberts and Alito got were about how totally committed they were to the unitary executive.

The Administration has already submitted to the Supreme Court decisions it lost on, and there's no reason to think the Court wouldn't back subpoenas because of a unitary executive argument, which is about the President's control of executive functions, not about the Congress's ability to compel testimony regarding possible perjury before Congress. Executive privilege would be the argument in regard to Rove. There are related issues involved, but not quite the same legal theory.

I doubt there will be a huge showdown over this, since the Administration is on weak ground. Possibly there will be a limited battle.

Posted by: Sanpete | Mar 19, 2007 1:59:34 PM

The reality of the very slim Dem. majorities in the House and Senate and that the Blue Dogs (and assorted other weak knees) will not support hard-edged actions seem to suggest that nothing can be done except squeal long and loud.

With strong party discipline, the power-of-the-purse trump card could be played with surgical precision: de-fund the Executive Office of the VP; no salaries/expenses for any person defying Congress; prohibit transfer of funds with the executive branch or loan of officials from one area that is still funded to non-funded activities; etc. Dems won't do this (we are way too nice), but they could.

The DC folks will be crying 'constitutional crisis' 24/7 and the pressure will be on to avoid it rather than face it. If the Dems yield, there goes our Constitutional Republic (if it isn't gone already).

Posted by: JimPortlandOR | Mar 19, 2007 2:00:08 PM

Congress is dependent on the Justice Department to enforce a contempt citation for refusal to honor a congressional subpoena. In its understated way, the Congressional Research Service notes that this is a "weakness in the procedures that Congress relies upon for contempt." see

http://www.senate.gov/reference/resources/pdf/RL31836.pdf

at page 18.

Posted by: bloix | Mar 19, 2007 2:07:24 PM

If the Dems yield, there goes our Constitutional Republic (if it isn't gone already).

Damn! We'll miss it.

Congress is dependent on the Justice Department to enforce a contempt citation for refusal to honor a congressional subpoena.

This won't be an issue.

Posted by: Sanpete | Mar 19, 2007 2:16:45 PM

Mark Kleiman has pointed out that the Sergeant at Arms could always arrest the subpoena target. This is best done carefully, but it's quite doable.

Posted by: Barry | Mar 19, 2007 4:26:09 PM

> Mark Kleiman has posted about this question.

Mr. Kleiman assumes that the Bush Administration will agree to accept subponea/lawsuit/court ruling with which it has a fundamental disagreement. Whereas everything up to and including the Libby case indicates to me that when the fire gets close to the heart they will do whatever it takes and figure out a way to not comply.

The (Congressional) Sergeant at Arms enforces subponeas eh? How are they going to get to their targets? White House has decided that this is a matter of Executive Privilage(tm); you don't get past the armed guards.

Cranky

Posted by: Cranky Observer | Mar 19, 2007 4:33:37 PM

So Rove has to set up camp in the White House and can't leave for fear of being arrested ... that will at very least make interesting political theatre.

Posted by: BruceMcF | Mar 19, 2007 6:04:23 PM

You cant fire Gonzalez! He's a fucking minority for Christ's sake! Anybody who wants to fire Gonzalez is RACIST!

Racial quotas will be broken by his dismissal and that can not be permitted. Pardon me while I go worship at the altar of diversity.

Posted by: joe blow | Mar 19, 2007 9:45:51 PM

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