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DoJ Lawyers: Congress Ought to Play Hardball to Get White House Testimony
Last Friday, administration lawyers for the first time laid out their argument against the House's lawsuit to enforce Congressional subpoenas from the U.S. Attorney firings scandal. The House is seeking to enforce the House Judiciary Committee's subpoena of former White House counsel Harriet Miers and current chief of staff Josh Bolten.
The 83-page motion laid out a number of arguments for why the judge should dismiss the suit, but the central one was that the courts should not get involved because historically, they haven't. From the AP:
"For over two hundred years, when disputes have arisen between the political branches concerning the testimony of executive branch witnesses before Congress, or the production of executive branch documents to Congress, the branches have engaged in negotiation and compromise," Justice Department lawyers wrote...."Never in American history has a federal court ordered an executive branch official to testify before Congress," lawyers for the White House wrote.
That makes for a murky area of law, and the Bush administration is urging U.S. District Judge John D. Bates not to tidy it up. The ambiguity fosters compromise, political solutions and the kind of give and take that the Founding Father envisioned, attorneys said.
Clearing it up "would forever alter the accommodation process that has served the Nation so well for over two centuries," attorneys wrote.
As part of their argument, the administration lawyers cited Congress' considerable leverage as the more traditional means of getting what it wants. This is from the motion:
And the Legislative Branch may vindicate its interests without enlisting judicial support: Congress has a variety of other means by which it can exert pressure on the Executive Branch, such as the withholding of consent for Presidential nominations, reducing Executive Branch appropriations, and the exercise of other powers Congress has under the Constitution.
It's not a tactic that Congress has employed over the past couple years, with a few exceptions. But maybe they ought to take the administration up on its own advice and see how it goes.













"Clearing it up 'would forever alter the accommodation process that has served the Nation so well for over two centuries,' attorneys wrote."
I would argue the the Bush Administration has single-handedly blown up the "accommodation process" by refusing to accommodate Congress on even the smallest matters.
May 12, 2008 6:46 PM | Reply | Permalink
It's the usual argument. Bush can change the rules whenever he wants but everyone else has to follow them.
Bush has done tons of unprecedented things unseen in the history of th nation- endorsed torture, adopeted a policy of "preventive" agression toward the whole world, raised taxes in wartime, extended executive privilege to cover anyone who works for him, etc. ad nauseum.
These are the guys who said 9/11 changed everything. They simply have no shame.
May 12, 2008 6:59 PM | Reply | Permalink
Sorry, cut taxes in wartime, not raise them, while putting the whole war on loan too.
Such a stupid idea my fingers wouldn't type it.
May 12, 2008 7:01 PM | Reply | Permalink
But, but, we'd be unpatriotic if we with hold monies from the Executive Branch - we wouldn't be supporting the troops - we are already withholding nomination confirmations (look where that has gotten us, no functioning FEC and there are several acting deputy XYZs that will be acting until the end of the term in violation of law) and so on.
These suggestions from the White House are bogus, and they know it.
May 12, 2008 7:40 PM | Reply | Permalink
It is pretty clear they have no defense.
The wording of this claim is designed to give Judge Bates the excuse he needs to justify not hearing the case and to deny the court the chance to hear legal arguments.
The Bush regime has no shortage of justices who toss cases. Their reasons are not legal reasons but almost word for word what the Bush team gives them to say.
A number of judges have tossed cases on spying saying they would not be responsible for weaking the war on terrorism by revealing secrets in court....
And some wonder why they chant liberal activist judges to ram their guys through. We'll see if justice is handcuffed by fixed judges.
May 12, 2008 8:19 PM | Reply | Permalink
"Clearing it up "would forever alter the accommodation process that has served the Nation so well for over two centuries," attorneys wrote."
Yeah, like actually holding some of the folks representing "We the People" with REAL accountability and consequences... how undemocratic is THAT!
May 12, 2008 8:55 PM | Reply | Permalink
I would argue that they're right! The Congress is going to the court whining and whimpering. They should be coming out like lions! Their subpoenas are being ignored by the chief executive on flimsy to no excuses because he's being cocky! They've been needing to knock him down several pegs for a long time, and now they have a blueprint from his own DOJ telling them what they must do. They have also the ability to use inherent contempt, and if they throw Josh Bolten and Karl Rove in jail until they're ready to testify, it won't take very long at all. I sure hope they have some really juicy questions ready and not the normal softball ones. If they're gonna be pushed into going farther than what they want, they should at least make it worth it! I don't want to hear any more excuses or cutesy plays of the week, they know what they have to do, just do it before the time runs out already!
May 12, 2008 9:49 PM | Reply | Permalink
Damn stare decisis.
May 12, 2008 10:43 PM | Reply | Permalink
Except that it's not stare decicis so much as stare indecicis. :P
May 13, 2008 7:39 AM | Reply | Permalink
"For over two hundred years, when disputes have arisen between the political branches concerning the testimony of executive branch witnesses before Congress, or the production of executive branch documents to Congress, the branches have engaged in negotiation and compromise," Justice Department lawyers wrote...."
Yeah, but:
A) This administration is historically corrupt, so it's hard to play the precedent game.
B) When has this administration ever compromised?
May 12, 2008 11:22 PM | Reply | Permalink
I think one of the problems is that we continue to speak of Congress as if it is one entity. It is not. It is composed of senators from each state, or representatives from districts. The president has the advantage of being the one man in charge of the executive branch. He does not have to compromise with more than 400 people. He may consult some people, most of which are put in place by him, and consequently will most likely have the same opinion as he does, but he does not have to accomodate anyone. Members of Congress, on the other hand must compromise and accomodate each other in order to make decisions. When we speak of "Congress" being the "one" that needs to step up, we are really saying that members of Congress (most of which Bush campaigned for, and have loyalties to him, instead of being loyal to their branch), need to arrive at a conclusion as to what should get done, and then go out and implemented. Yes, Congress does have plenty of Constitutional means by which it can limit the President, but Congress is also a very diverse institution. So yes, we all want Congress to step it up, but who are we really directing our wants to?
May 13, 2008 1:03 AM | Reply | Permalink
For pity sake, Congress has the power of the purse for a reason. When someone in the president's position shows you as much disrespect as this president has, and you represent constituents, in other words, you and me, you should, you must, shut him down until he gets the proper respect for his bosses, which is, incidentally, you and me. The congress is not just ceding their own power; they are part of the cause for a constitutional crisis for allowing the balance of power within our own government to go completely out of whack. The checks and balances have not adequately been applied as a reminder to the chief executive that he works for the people; not the other way around. I haven't seen anyone make serious enough efforts to force the president and his goon squad to understand that the executive branch is not just an arm of their party. Rethugs would never let Dems do it. Look what they did to Clinton! I realize that Dems were not in the majority for most of this administration, but they ought to be able to think of some way to exercise their powers or they're useless! Seems to me a large part of their problem is they have no testicular fortitude, as they say. Time to get some!
May 13, 2008 3:03 AM | Reply | Permalink
The problem with the "power of the purse" is that for it to work, the President actually has to care about the country more than his party and/or personal ambitions. Bush would be more than willing to let Congress withhold funds so that he (and the GOP) can blame them for whatever goes wrong as a result. He really wants them to do this, IMO.
May 13, 2008 7:42 AM | Reply | Permalink
who could disagree with this? Congress ought to invoke inherent contempt. Anyone refuses to testify, then send the Sergeant at Arms over with some Capitol police, and arrest their asses. Perp walk them up the front steps of the Capitol, and then keep them locked in the basement 'til they talk. End of motherfucking story.
May 13, 2008 8:40 AM | Reply | Permalink
Umm... Yes.
Send the Sergeant at Arms to arrest and detain the miscreants who dare to defy Congressional subpoena power. Throw them in the basement.
Then wait... Little Georgie will throw the "Mother of All Temper Tantrums". And The Big Dick just might have another heart attack. Either event would be great entertainment.
Putting aspects of entertainment aside, Congress really does need to stand up and exert its Constitutional powers. Little Georgie can whine and pout all he wants, but Article I grants Congress all the powers it needs to ensure the laws of the land are upheld.
May 13, 2008 10:59 AM | Reply | Permalink
There are no hard balls in the current United States Congress. Ergo, they ain't got game.
May 13, 2008 5:32 PM | Reply | Permalink
Ben,
Too true!
May 14, 2008 1:34 PM | Reply | Permalink