"Stop talking about impeachment!"
"Focus on the elections!"
"Win back the Congress, and then we'll have subpoena power and oversight authority!"
It seems to me that it's time to have a nuts and bolts discussion about what we're supposed to be gaining in exchange for agreeing to sit on our hands and watch what we say.
How exactly do we see subpoena power and oversight authority under a Democratic Congress actually playing out?
Let's start the inquiry by taking a look at how attempts at oversight, however pathetic they might be, are going in the current, Republican Congress.
What's it like when something so crazy happens that even Congressional Republicans can't hide from the public demand for an inquiry, and call Bush "administration" officials out on the carpet, as they did following the Sago mining disaster?
If ever there was a perfect illustration of the Bush administration's attitude toward Congress, it came precisely one hour, six minutes and 20 seconds into Monday's Senate Appropriations subcommittee hearing on mine safety.
The administration's two top mine safety officials had finished testifying, but Chairman Arlen Specter (R-Pa.) asked them to stick around for an extra hour in case other questions came up -- as is the panel's custom. Sorry, said David G. Dye, the acting assistant secretary of labor for mine safety and health. He and Ray McKinney, the federal administrator of coal mine safety, had too much real work to do to sit around listening to a group of pesky senators. A rescue team was still in the Sago Mine, Dye said, and a mine fire was burning in Colorado.
"We were happy to prepare for the hearing but we really need to get back," Dye announced. "We've got some really pressing matters."
Specter, a man who doesn't take well to real or perceived slights and who, more to the point, writes the mine agency's budget, dryly noted that the assembled senators also had some "pressing matters" on their plates. "So we don't think we're imposing too much to keep you here for another hour," he said. At which point the administration officials walked out a back door of the hearing room.
That's it. They just... walked out.
In an official hearing before the United States Senate, presided over by the venerable Arlen Specter, on whom so much now depends, the "administration" simply up and walked out when it didn't feel like playing along anymore.
And this, in a nutshell, is the way this executive branch treats its supposedly equal partner: as an annoying impediment to the real work of government. It provides information to Congress grudgingly, if at all. It handles letters from lawmakers like junk mail, routinely tossing them aside without responding.
But what about other avenues of oversight? Like Justice Department investigations?
An investigation by the Justice Department ethics office into the
conduct of department lawyers who approved the National Security
Agency's domestic surveillance program has been closed because
investigators were denied security clearances, according to a letter
sent to Congress on Wednesday.
The head of the department's Office of Professional Responsibility,
H. Marshall Jarrett, wrote in the letter to Representative Maurice D.
Hinchey, Democrat of New York, that "we have been unable to make
meaningful progress in our investigation because O.P.R. has been denied
security clearances for access to information about the N.S.A. program."
Mr. Jarrett said his office had requested clearances since January,
when it began an investigation, and was told on Tuesday that they had
been denied. "Without these clearances, we cannot investigate this
matter and therefore have closed our investigation," the letter said.
Oh well. At least there's always the courts.
It's official: The Bush administration formally said Friday that it will try to halt a lawsuit that accuses AT&T of helping the National Security Agency spy on Americans illegally.
In an 8-page document (PDF) filed with a federal court in the northern district of California, the U.S. Justice Department said it will intervene in the lawsuit and try to have it tossed out of court.
[...]
The Justice Department said in its filing that the "United States intends to assert the military and state secrets privilege" and have the case dismissed.
The state secrets privilege, outlined by the Supreme Court in a 1953 case, permits the government to derail a lawsuit that might otherwise lead to the disclosure of military secrets.
No? Well, no matter. Surely this time Specter will get tough! Like he did with those "administration" officials who walked out of his mine safety hearings. Say, what did he do about that, anyway?
Aw, nevermind. At least we know that when Specter says he's gonna get answers, by God, he goes out and gets those answers! Or at least, if he doesn't, he stands ready to make up his own.
But things will be very different under a Democratic Congress, right? Because although Bush has shown nothing but contempt for even the weakest, most watered-down attempts of the Republican Congress Politburo to conduct oversight, there's every reason to believe that there will be far more compliance for Democrats.
Here's the thing, though: the reason we think oversight under Democrats will be more effective is that we'll make use of Congressional subpoena power to do our digging. But exactly what is it about Democratic subpoenas that makes us think the Bush "administration" will be interested in complying with them?
Well, there's always the threat of hitting them with charges of contempt of Congress, right?
In the federal law of the United States, contempt of Congress is the crime of obstructing the work of United States Congress, with a punishment of up to one year in prison and up to $1,000 in fines.
The United States Congress generally brings this action for refusing to testify before a Congressional committee, or failing to provide a committee with requested documents.
So that's how we'll enforce our subpoenas. Isn't it?
Maybe not:
In order to be convicted of contempt of Congress, the congressional committee subject to the contempt first reports a resolution that the affected individual is guilty of contempt. This takes a majority vote of the committee. The full United States House of Representatives or United States Senate then must approve the resolution, which sends the matter to a federal attorney, who may call a grand jury to decide whether to indict the affected individual, and prosecute if the grand jury affirms an indictment. This version of the procedure was put into place in 1857 and exists in order to provide a balance of power so the House and Senate cannot run amok and jail all their political opponents with contempt charges. The Congress is also restricted in that contempt citations can only be brought on matters that relate to legislative purposes within the jurisdiction of the committee that brings the charges.
From time to time, Congress lodges contempt of Congress charges against members of the United States government, usually members of the executive branch of the United States who claim that releasing their records to a committee would cause more harm than good, or sometimes that the records are protected by executive privilege and must remain secret. This can put the executive branch in an unusual ethical position, since the executive branch employs the United States Attorney, who decides whether to bring cases of contempt of Congress to the grand jury. In addition, it is often the United States Attorney who advises executive branch members in the first place whether to withhold controversial documents or provide them to the congressional committees.
So the enforcement of the vaunted Congressional subpoena power we're all so hot to get our hands on in order to check the out-of-control Bush "administration" actually falls to... the Bush "administration?"
Er... well... (shuffling of feet)...
So where does this leave us? Exactly what bridge is it we think we'll cross when we come to it?
Yes, yes, we all want to make sure the Bush "administration" lives up to its reputation of non-compliance first, before we start spooking the "swing voters" (presumably those who haven't yet "swung" from the 31% the president is clinging to) with honest discussions of what we're actually going to have to do to set things right.
But it's time for the political "pragmatists" to start thinking on the question of what they'll do when their plans don't turn out to be all that "pragmatic" after all.
It's time for us to discuss what's so pragmatic about assuming the Bush "administration" will suddenly reverse course, and own up to its wrongdoing in the face of Democratic inquiries.
Maybe nothing. Maybe it's all about taking things one step at a time. But make no mistake: the steps have been taken. There won't be time to waste on reinventing the wheel if the reins of government are passed into our hands in January. This "administration" has defied Congress -- a supposedly co-equal branch -- and it is no solution to say that Democrats pose a better alternative because they propose making really, really sure that the defiance is genuine.
What I think is a "realistic" or "pragmatic" way of looking at the question of impeachment is this: if there's an impeachment, it's much more likely to be over executive encroachment on Congressional prerogatives -- the diminution of Congressional power -- and not any of the rest of the garbage this "administration" is guilty of.
Not only is self-defense (not to mention self-interest) ultimately the only thing that would motivate Congress to act, but it's also the only "high crime" for which the withholding of evidence needed to convict can itself be the evidence needed to convict.
Setting a precedent for impeachment on the specifics of the charges against which we proposed to exercise oversight only goes so far. But setting a precedent for impeachment based on non-compliance with the oversight itself is a far-reaching and much-needed line in the sand. One that we failed to draw definitively after Nixon, and having failed to do so again after Reagan, we now find ourselves scratching our heads in wonderment at Bush's defiance of that same line, not yet drawn.
