As kestrel9000 outlined the other day, Vermont’s own Pat Leahy stand at the point in the fight against the latest outrage in the six-year continuing saga of Bush power-grabbing.
The White House has pretty much been caught red-handed in an effort to corrupt and contaminate the actual administration of justice in the United States, by overtly hiring and firing U.S. Attorneys around the country on the basis of their partisan and personal loyalty not to the law, but to George W. Bush. Pat Leahy, righteously indignant at the implications for the future of our country, wants answers, and says he’ll subpoena top White House officials to get them.
George W. Bush says he’ll order his advisors to defy Leahy’s subpoenas.
The Vermont Democratic Party and the Vermont State Legislature are poised to lay down for Bush, leaving Leahy twisting in the wind.
How is that possible?
Allow me to explain:
[L]et’s look at the mechanics of subpoena power. In its investigative capacity, Congress has adopted for itself the use of a subpoena power that’s roughly analogous to that more commonly seen in the judicial and law enforcement system, in which government prosecutors (employees of the executive branch) leverage the power of the judicial branch (in the form of its ability to sentence those brought before it for contempt, should they defy the subpoenas) to ensure compliance with the demands made.
But Congress is not the executive branch. Nor is it the judicial. Its independent enforcement powers are limited to only the most obscure and archaic procedure — “inherent contempt” — which hasn’t been exercised since 1935, and with good reason: this procedure itself requires a trial before Congress. Not a particularly helpful substitute when you’re trying to avoid a trial before Congress [read: impeachment] in the first place.
Instead, Congress depends for its enforcement powers on the executive branch. If you defy a Congressional subpoena, you face the possibility of charges of contempt of Congress, pursuant to the adoption of articles by whichever house is charging you. But those charges are not self-executing. In other words, they’re a request that charges be brought. In order to be effective, those charges still have to be prosecuted in court, and that’s up to the discretion of the U.S. Attorney for the District of Columbia. He’s an employee of the “unitary executive,” of course, and reports to the Attorney General.
So if you’re conducting oversight of, say, the NSA spying program, and you want answers from Gonzales regarding the program’s legality, and you subpoena him and he tells you to take a flying leap, what do you do?
You could try going to court, but not only will that pretty much run out the clock, but the courts are quite likely to tell you, “What are you crying to us for? You have your remedy. If you’re too chicken to use it, that’s your problem.” They may well hand it right back to Congress as a “political question,” and refuse to resolve it. After all, tied up in that question is yet another: should the legislative branch be able to leverage the judicial in order to force the executive to submit to its will?
Long story short: This is not an issue that can be resolved on moral, ethical, legal, or political grounds alone. It can be ignored for any or all of those reasons, but not resolved.
So what’s Leahy to do here? Enforcement of his subpoenas depend on the contempt power, and the contempt power falls ultimately to the U.S. Attorneys — the political strong-arming and contamination of which brought us to this crisis in the first place.
Clever of them, no? Heck, you’d almost think they… planned it.
[W]hen it comes to deploying its Executive power, which is dear to Bush’s understanding of the presidency, the President’s team has been planning for what one strategist describes as “a cataclysmic fight to the death” over the balance between Congress and the White House if confronted with congressional subpoenas it deems inappropriate. The strategist says the Bush team is “going to assert that power, and they’re going to fight it all the way to the Supreme Court on every issue, every time, no compromise, no discussion, no negotiation.”
Realize that the resolution of this stand-off will determine the extent to which the Congress is able to investigate everything that’s still on their plate. If they lose this showdown, they lose their leverage in investigating NSA spying, the DeLay/Abramoff-financed Texas redistricting, Cheney’s Energy Task Force, the political manipulation of science, the Plame outing… everything.
That’s the cost of leaving Leahy standing alone, with nothing but his rejected subpoenas in his hand.
Only one Constitutional power gives Leahy the leverage it needs to make the cost of executive noncompliance so high that the president has no choice but to submit, or be removed.
And yet it is that very power the Vermont Democratic Party and Vermont state legislature are poised to deny him, beginning at the state committee meeting tomorrow.
In very short order, Patrick Leahy will need to be able to lean on the threat of the impeachment power in order to restore and preserve the rule of law in the United States of America. Activists all over Vermont and all over the country have been working tirelessly for over a year to prepare for this moment, so that when brave statesmen like Leahy are finally forced to take a stand on the brink, the people they represent will have spoken clearly and said that they stand with them.
Senator Leahy doubtless has the courage and tenacity it will require to take this challenge on. But Vermont has a rare and perfectly-timed opportunity to steel his resolve, beginning on Saturday.
I would urge you to seize it.
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