Friday, December 08, 2006By Kagro X of Daily Kos
We're all for oversight. Am I right about that?
Let's talk, procedurally and mechanically, about what that means, and why impeachment is inherently a part of all of it.
I know, I know. You didn't want to hear any more about it. But the door's open, and this deserves some attention, if only for purposes of academic discussion.
Though we're all looking forward to some robust oversight, we've got some very basic questions we need to ask about whether and how this is going to happen.
In fact, the questions are exactly that: whether and how this is going to happen?
In the course of his six years in the presidency, George W. Bush's "administration" has forced us to confront questions about the basic nature of our constitutional government that most of us thought were well-settled, and not in favor of the position Bush has been taking on them.
Does the president have the "inherent power" to refuse to faithfully execute the laws, as provided in the Oath of Office, if he believes the law is unconstitutional? What if -- and you'll have to follow me around the circle here, because that's where he's taking us -- he believes the law is unconstitutional because he believes it's unconstitutional for Congress to pass laws that restrict his "inherent powers?"
You can pretty quickly see where this sort of hyper-aggressive legal theorizing can take you, if you're inclined to press it. And all indications are that they are so inclined:
"[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."
As you can see, that threat goes straight to the heart of the promise of Congressional oversight. The problem is that there's really no independent Constitutional or legal reason why executive branch officials would be compelled to respond to a Congressional subpoena. Congress has only very limited investigatory powers, which the courts typically limit to oversight that has a direct or at least colorable relation to proposed legislation.
But it's not that I expect the courts to find that the required nexus between the proposed oversight and possible legislative solutions is lacking. It's more than that. It's the inherent weakness of the mechanism on which we're relying: the much-vaunted "subpoena power."
Pelosi was asked what was most important about regaining majority status. "Subpoena power," she said.
So, let'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 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.
That's why I'm not requiring anyone to make up their mind today, on the spot. Just consider that there's a legitimate role for impeachment to play, even in the background, but that it must be "on the table" in order to do so. And here I would note that saying it's "off the table" does not by itself take it out of consideration. That's not what this discussion is about, and I think we can discuss the necessity of having this weapon in our hip pocket without necessarily resolving whether or not individual players in Congress did or didn't say it quite the right way.
Instead, it's about contemplating the place of impeachment as a procedural tool. Just as it's the threat of a filibuster that ultimately provides the "power" that makes the "Senatorial hold" possible, so is impeachment the power that makes Congressional subpoena power possible for use against the executive branch.
And we all want that, right?