For the casual reader, new to the site, Jake D. is a bothersome troll, attempting to set the tone of each story by being an early poster of such drivel. Please read below for more insightful comments.

The idea of "rule of law" is to have an enforcement mechanism. If the President refuses to prosecute, the Congress may impeach.

If Cngress asserts something must be done, but is not willing to back that claim with impeachment, then Congress is irrelevant, not just a rubber stamp.

Tell Congress to go home until 2008, and maybe We the People will notice.

All the more reason to send the contempt citation to the full House before the recess. Then, when the DoJ wipes its ass with it, they can take up an inherent contempt citation after the recess. We all know it's going to come to that anyway, so why diddle around?

Posted by: Jake D.
Date: July 25, 2007 5:09 PM

Executive Orders are not relevant to Congress. POTUS Cannot have it both ways: Arguing Congress has no oversight power (which it does); but then impose rulse on the Congress.

No, Constitution delegates rule making powers only to the Congressional bodies themselves, not to the President; and all other EOs are contingent upon their being consitsent with laws passed per Article I SEction 8: The rule making power of Congress to define when the Courts shall or shall not recognize Executive Privildge claims.

Has anyone ever changed their mind because of something Jake D. said? For me, his sibilant ramblings have only served to reinforce what I know to be true.

Jake, how on earth is the Little Shrub going to override the Constitution by Executive Order? Does he really think he alone determines what's in the Constitution?

d

How can the courts even contemplate disregarding the citation of contempt against someone that didn't show up pursuant to a served subpoena?

Miers didn't show. The contempt has nothing to do with what she did or did not say. Can a lawyer clear this up for me?

On its face the validity of the ocntempt charge is proven without a need for any case presentation in court.

Jake D and all his ilk are clearly looking forward to the reign of Queen Hillary. Why else would they want to trash our system of government?

d and "no name":

Read Anna S.'s post claiming to support the same by Congress against the President. I simply asked the question. I'm not the one advocating that position.

Criminal contempt is surely applicable to Presidential subordinates who assert executive privilege, especially when they do not possess the privilege and when they don't show up to assert it.

"All the more reason to send the contempt citation to the full House before the recess. Then, when the DoJ wipes its ass with it, they can take up an inherent contempt citation after the recess. We all know it's going to come to that anyway, so why diddle around?
Posted by:
Date: July 25, 2007 5:09 PM"

I don't think it needs to go to a full House vote, since the DoJ has preempted the need. The House now has all the foundation a reasonable person should expect to move on to inherent contempt.

I sometimes try to figure out what the Admin's thinking with a move like this, but other than giving me a headache, I can't see the plus for them. They have to know that someone guilty of inherent contempt cannot have an executive pardon fix it and make it better.

In addition, won't Miers and Bolten ultimately be compelled to cough up what the committee wants to know? Can the Admin really believe that with this level of disrespect they've shown Congress a vote on inherent contempt couldn't pass?

It's the third time I've suggested this today, but we all must write to our representatives and tell them we support the next step: Inherent Contempt. It's only if they think their constituency supports it that some of the more-nervous of our reps can take a step like this.

"to... who assert executive privilege". But there's a procedure for that, and it hasn't been followed.

The privilege hasn't been invoked.

PROSECUTION OF AMERICAN PRESIDENTS

Here is the legal argument for why State AG have standing to prosecute a sitting President outside Congress outside impeachment.
Jonathan Turley; American Criminal Law Review, Vol. 37, 2000. From Pillar to Post: the Prosecution of American Presidents

This assertion is without regard to the above:
- - - - -
"no name" at 5:09 PM: State Attorneys General cannot indict sitting Presidents (arguably Vice Presidents as well) either. Federal law trumps -- sorry.
Posted by: Jake D.
Date: July 25, 2007 5:17 PM
--------------------------

The Law Review Article, as it relates to the above "denial" can be best summarized this way:

1. Eat dirt: "federal law does not expressly preempt the states' laws" [Court Opinion, Judge Vaughn Walker, 2007]
2. There is no law that says it cannot happen.
3. The State AGs have just been given authority to litigate the NSA issues; the motion to dismiss was DENIED opening the door for other state AG action against the President and VP.
4. You make no allowances for the 10th Amendment which reserves to the States the power to prosecute a sitting President; the Constitution only mentions impeachment; and that is only delegated to the House.
5. Cite one law that says that this cannot happen. It doesn't exist.
6. Judge Vaughn Walker just ruled that assertions of "what is" are meaningless: The Federal Government does not command deference by anyone: "does not . . .oblige special treatment."
7. You cite nothing to suggest this cannot happen. You're wrong. NO court has ever said this is impossible.
8. There is no "Higher enforcement action that the US Attys have" to prosecute the President; so there's no merit to any assertion that the States are "meddling" in something the US Government refuses to confront: This President's illegal activity. Once Conyers and Pelosi have said we will not impeach, that opens the doors for prosecutions.
9. The President's AG even said, as a Senator, that there are two ways to prosecute a President: One with criminal indictments; or one with impeachment. Impeachment is preferred, but when not possible, prosecutions remain on the table.

You "argument" fails.

CONCLUSION

A sitting President and VP may be prosecuted today outside Congress, outside impeachment. There is no legal authority which prevents this from proceeding now.

Please contact your State AG and ask them to support the indictments against this sitting President and VP, outside Congress, outside impeachment.

Its in the constitution Jake. Read it why don't you. Its just not pardonable jake.

Inherent contempt

Under this process, the procedure for holding a person in contempt involves only the chamber concerned. Following a contempt citation, the person cited for contempt is arrested by the Sergeant-at-Arms for the House or Senate, brought to the floor of the chamber, held to answer charges by the presiding officer, and then subject to punishment that the House may dictate (usually imprisonment for punishment reasons, imprisonment for coercive effect, or release from the contempt citation.)

Concerned with the time-consuming nature of a contempt proceeding and the inability to extend punishment further than the session of the Congress concerned (under Supreme Court rulings), Congress created a statutory process in 1857. While Congress retains its "inherent contempt" authority and may exercise it at any time, this inherent contempt process was last used by the Senate in 1934, in a Senate investigation of airlines and the U.S. Postmaster. After a one-week trial on the Senate floor (presided by the Vice-President of the United States, acting as Senate President), a lawyer who had allowed clients to rip up subpoenaed documents, William P. MacCracken, a lawyer and former Assistant Secretary of Commerce for Aeronautics, was found guilty and sentenced to 10 days imprisonment. [1]

MacCracken had filed a petition of Habeas Corpus in federal courts to overturn his arrest, but after litigation, the US Supreme Court ruled that Congress had acted constitutionally, and denied the petition in the case Jurney v. MacCracken, 294 U.S. 125 (1935). [2][3]

Presidential pardons appear not to apply to civil contempt procedures like the above, since it is not an "offense against the United States" or an offense against "the dignity of public authority." [4]

And yes, jake, the president actually has to FOLLOW A PROCEDURE TO CLAIM EXEC PRIV. Its the LAW. Sorry ...I know its hard for repugs to wrap their lips around it.

How low can a country fall from the ideals it once fought to defend?

We now have a king. Apparently he can say and do whatever he wants safe behind a shroud of "privilege" without ever having to explain his actions or his motivations. When I left England to live here I thought I left this kind of nonsense behind. Apparently not. Back there the Queen is severely restricted by the vehemence of Parliament which had to fight long and hard to gain the upper hand. Who knew the reverse was to happen here?

Clearly there is a gaping flaw in the American system if the will of the people, as expressed by its most recently elected representatives is so easily and contemptuously swept aside by presidential [monarchical?] fiat.

King George is a fitting title. How apt. And how tragic for the world that its leading beacon of freedom for decades is now under the yolk of such an oppressive regime, with apparently no democratic recourse.

It is not Congress who Bush and Cheney show contempt for: it is we the people.

"no name":

Just because Pelosi say's impeachment is "off the table" does not make that "impossible". You could always vote her out of office -- see Cindy Sheehan. If there's some stellar court opinion on point by Judge Vaughn Walker, can you link to it or provide the case cite?

For those of you who are new to or aren't clear about inherent contempt and its particularities (or for whose powers of retention aren't very good), I'll reiterate information I provided TPM readers last week:

Wikipedia's article on Contempt of Congress explains the process and its differences from statutory contempt. It's at: http://en.wikipedia.org/wiki/Contempt_of_Congress
"Under this process, the procedure for holding a person in contempt involves only the chamber concerned. Following a contempt citation, the person cited for contempt is arrested by the Sergeant-at-Arms for the House or Senate, brought to the floor of the chamber, held to answer charges by the presiding officer, and then subject to punishment that the House may dictate (usually imprisonment for punishment reasons, imprisonment for coercive effect, or release from the contempt citation.) ... Presidential pardons appear not to apply to civil contempt procedures like the above, since it is not an 'offense against the United States' or an offense against 'the dignity of public authority.'"

This last sentence refers the reader to this article by Frank Askin, director of the Rutgers Constitutional Litigation Clinic:
http://www.washingtonpost.com/wp-dyn/content/article/2007/07/20/AR2007072001802.html

Askin closes with this:
"So, far from being defenseless against the president's refusal to prosecute or the threat of presidential pardon, Congress could take into its own custody defiant administration officials who refuse to cooperate with legitimate inquiries into executive malfeasance. Those targets would have the right to seek writs of habeas corpus from the federal courts, but as long as Congress could show a legitimate need for the information it was seeking pursuant to its legislative oversight functions, it would be standing on solid legal ground."

YEEEEEEEEEEEHAH

One thing that Schroeder did not mention is that if Bush prevents a court/US Attorney from moving forward, Bush is setting himself up for interfering in a legal process which is an Impeachable offense under the rules that set forth in Article II.

Bush if he instructs the US Attorney's NOT to process with the contempt charges, Bush is interfering with Judicial process which in the end is holding him self in contempt which is an impeachable offense.

One thing that Schroeder did not mention is that if Bush prevents a court/US Attorney from moving forward, Bush is setting himself up for interfering in a legal process which is an Impeachable offense under the rules that set forth in Article II.

Bush if he instructs the US Attorney's NOT to process with the contempt charges, Bush is interfering with Judicial process which in the end is holding him self in contempt which is an impeachable offense.

I appreciate that you are a thinking person looking to put your ideas and thoughts to the test. Keep it up.

Also, I don't think the next step is inherent contempt, I mean that may be what Congress will do, but to me the only option left, and the one I have been advocating for well over three years now is impeachment. Any discussion of anything else is futile. There will be no meaningful legislation passed with shrub and darth in control and a bunch of repigs protecting themselves by protecting the administration. There will be no end to the war in Iraq, no avoiding a war with Iran, no phased withdrawal, no attention to the environment, no attention to health care, no attention to the American worker, no attention to our democracy, habeas corpus restoration, or any accountablility of any kind without impeachment. How any sane person could look at what this administration has done, and is doing and not move directly to the only tool left, impeachment, is beyond me.

By the way, it is nice to see trolls of any kind on a site, it always means that the right wing is feeling a little nervous.

LOL!! "Holding himself in contempt" is an impeachable offense? How about if he holds himself on one foot, is that an impeachable offense too? Please, keep the laughs coming.

Posted by: pacr
Date: July 25, 2007 5:53 PM

I understand your frustration. However, look at it this way: We have a _President_; his _behavior_ is not consistent with his Article II power.
Rather, the benefit of him "thinking" and "pretending" he is a king is that his _behavior_ becomes _evidence_ of criminal conduct. He can either be prosecuted or impeached; whether Congress chooses to do nothing does not mean that her is a King, merely he has a longer road to hoe when prosecuted.
The US is based, in part on the Magna Carta: Where even a King Shall Assent to the Rule of Law. We are not in 1214, the year before the Charter was signed. It is 2007, and the Runnymede document of 1215 is the standard that even "someone who thinks he is a King" shall assent.

Do not be afraid: This President is way over his head. He's led an illegal rebellion. There are lawful ways to legally confront, engage, defeat, and remind him of his sole Article II power: That of a clerk, not a King.

Thank you for your concern, and I trust you rest soundly knowing there are many who support your concern; and stand ready to put themselves between this clerk and the Constitution. He is losing, not just at home, but abroad.
The CIA has rallied, and they are working with foreign Powers to prosecute this President for war crimes. They have discussed evidence of Geneva violations with prosecutors abroad who are willing to rally their nations to confront this President. The "all powerful clerk" is powerless to stop the CIA from putting the Constitution before him. They have acted according to their oath: To defend the Constitution against domestic enemies in Congress, the White House, DoJ, and OVP. He has no hope. With your hope, faith, and confidence, he will have that much more evidence against him. He has no hope, neither do his legal counsel, and there is no statute of limitations for war crimes. Best wishes.

Even though it's a foregone conclusion that the DoJ is going to wipe its ass with the contempt citation, it's worth the effort to go through the exercise. In directing the DoJ to do so, Bush is guilty of obstruction of justice. Remember, it wasn't the Watergate break-in that did Nixon in, it was the cover-up and related obstruction of justice.

Bush wouldn't be going to this much effort if there wasn't some seriously incriminating evidence involved. Once that is forced out, impeachment is inevitable.

"no name":

All the evidence to date point to the fact that Bush was not even personally involved in the replacement of these U.S. Attorneys -- there are other explanations of why Bush is going to this much effort -- it would be much easier to trash the principle of Executive Privilege for future Presidents and just hang Gonzales out to dry.

db:

I have no king but Jesus.

I've got two words for you, "clinton lawyers" Inherent contempt. So, suck it.

"Upshot: it is inherently contradictory to have the enforcement of separation of powers left to the discretion of a single branch."
Posted by: urbino
Date: July 25, 2007 6:07 PM
- - - --
You raise an important point, to which the Framers intended a clash of factions. Ideally, the enforcement of separation of powers is up to all branches: To clash with the other two, the Judiciary being the weakest, but Co-Equal.

However, you point is well taken: What shall enforce the separation of powers:
A. Would it be a separate branch of government?
B. Are we seeing the limits of checks and balances?
C. What if one branch refuses to assert power, leaving another branch unchecked?
D. When does the Constitution, as it is practised, fall into such disrepair that it no longer binds us?
E. Would creation of a 4th Branch of government -- with the exclusive power to investigate and prosecute, outside control of either party/faction/branch -- be a solution?
F. What reforms are needed within Congress: Should there be a third chamber, one that would verify the bills are Constitutional and lawful before they are debated or voted on?
G. What is the means by which partisanship and party loyalty can be forever below the oath to the Constitution?
H. What is the means by which the Constitution can be strengthened, ensuring that the oath remains above party loyalty; and that the functions of government -- as they are checked -- are not subjected to non-Constitutional forces or illegal influences?
- - - - -

Perhaps, to discuss a solution, we need to consider: What type of direct appointment-vote by WE the People -- outside party affiliation -- would be required in a New Branch that would have loyalty to no party or person, but only to the Constitution?
Perhaps the Bi_Cameral system of governance needs to be revisited, with a third Chamber in Congress.
Perhaps the Executive needs to be split into a domestic, foreign affairs, and military leadership, each separate
Perhaps each department under the Executive -- consistent with the separation of powers -- should have three heads: One from each of the branches, where all three see what is going on
Perhaps the Congress needs an NSA-like capability to monitor whether the President is or is not retaining information as required; and permit the Congress -- instantly -- to audit whether the President has or has not destroyed evidence, leaving it up to the Court to decide what information is privileged.
Perhaps what is needed is a review of what has gone wrong, and what shoul