Consequences for ignoring congressional subpoenas: None

It has been more than six months since top White House officials decided simply to ignore the subpoenas. Congress has done and will continue to do nothing about it.

By Glenn Greenwald

Published January 23, 2008 12:30PM (EST)

(updated below)

Back in July of last year -- more than six months ago -- the Senate and House Judiciary Committees were investigating the U.S. attorneys scandal and, as part of that investigation, they issued subpoenas to current Bush Chief of Staff Josh Bolton and former White House counsel Harriet Miers, "compelling" them to appear before the Committee to answer questions. While some Bush officials testified but cited "executive privilege" as a grounds for refusing to answer specific questions, both Miers and Bolton simply refused to show up at all -- literally just ignored the subpoena as though it were an invitation.

In the wake of that brazen contempt for Congress, all sorts of melodramatic denunciations and bold threats issued from Democratic leaders in Congress:

Senate Majority Leader Harry M. Reid (D-Nev.) called it "an outrageous abuse of executive privilege" and said: "The White House must stop stonewalling and start being accountable to Congress and the American people. No one, including the president, is above the law."

Sen. Charles E. Schumer (N.Y.) said the administration is "hastening a constitutional crisis," and Rep. Henry A. Waxman (D-Calif.) said the position "makes a mockery of the ideal that no one is above the law."

Wow; those are tough words: "hastening a constitutional crisis." "The White House must stop stonewalling." "No one, including the president, is above the law."

Since the White House announced to the world that it considered Congress' subpoenas to be laughable and worthless, what has happened? Exactly what Miers and Bolton knew would happen if they ignored the subpoenas: absolutely nothing of any consequence. Both Committees voted to issue contempt citations to the two officials, but Harry Reid and Nancy Pelosi -- for months and months -- have refused to bring the matter to the floor for a full vote, a requirement for a witness to be held in contempt.

A new article yesterday by The Politico's John Bresnahan reports that Pelosi and Reid plan more of the same:

House Democrats will postpone votes on criminal contempt citations against White House chief of staff Joshua Bolten and former White House counsel Harriet Miers, while congressional leaders work with President Bush on a bipartisan stimulus package to fend off an economic downturn, according to party leaders and leadership aides.

Senior Democrats have decided that holding a controversial vote on the contempt citations, which have already been approved by the House Judiciary Committee as part of its investigation into the firing of nine U.S. attorneys, would "step on their message" of bipartisan unity in the midst of the stimulus package talks. . . .

"Right now, we're focused on working in a bipartisan fashion on [the] stimulus," said House Majority Leader Steny H. Hoyer (D-Md.), indicating that the contempt vote is not expected for weeks, depending on how quickly the stimulus package moves.

Brendan Daly, a spokesman for House Speaker Nancy Pelosi (D-Calif.), said "no decision has been made" as to when a criminal contempt vote would be held by the House.

The Judiciary Committee approved contempt citations against Bolten and Miers on July 25, but Pelosi has yet to bring the measures to the floor. . . .

White House aides have dismissed the prospect of a contempt battle with the Democratic-controlled Congress as a distraction from more pressing work, such as dealing with the war in Iraq and the nation's sagging economy.

Just as is true for the FISA and telecom immunity capitulation and so many others over the last 12 months, the self-serving claim is made that Pelosi personally so very much favors voting on the contempt citation but, sadly, the votes just aren't there in the Democratic caucus.

When Congress allows its own subpoena and oversight powers literally to be ignored and scoffed at, the damage to our system of checks and balances can't be overstated. The whole premise of our system of government is that executive lawbreaking and presidential corruption is checked primarily by Congressional oversight. If Congress can't or won't compel the disclosure of information, then it can't investigate anything, and the President has no meaningful checks on his behavior. It's really just that simple.

The oversight function of Congress is and always has been at least as vital to the functioning of our political system as its law-making functions. In his chapter he entitled On the Proper Function of Representative Bodies, John Stuart Mill explained why:

Instead of the function of governing, for which it is radically unfit, the proper office of a representative assembly is to watch and control the government: to throw the light of publicity on its acts: to compel a full exposition and justification of all of them which any one considers questionable; to censure them if found condemnable, and, if the men who compose the government abuse their trust, or fulfill it in a manner which conflicts with the deliberate sense of the nation, to expel them from office, and either expressly or virtually appoint their successors.

And in his much-cited 1885 essay on the proper role of Congress, Woodrow Wilson made clear:

It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. . . .

Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function.

By allowing their subpoenas to be ignored with impunity, Congressional Democrats are completely abdicating the long-standing linchpin of how our government was designed to function, as explained quite clearly by the Supreme Court in its 1927 decision in McGrain v. Daugherty:

We are of opinion that the power of inquiry -- with process to enforce it -- is an essential and appropriate auxiliary to the legislative function. It was so regarded and employed in American Legislatures before the Constitution was framed and ratified. Both houses of Congress took this view of it early in their history -- the House of Representatives with the approving votes of Mr. Madison and other members whose service in the convention which framed the Constitution gives special significance to their action-and both houses have employed the power accordingly up to the present time. . . .

Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry, with enforcing process, was regarded and employed as a necessary and appropriate attribute of the power to legislate-indeed, was treated as inhering in it.

Today's Congressional Democrats have decided that none of this matters. Consider the entire panoply of Bush abuses over the last seven years -- from illegal domestic spying to torture and rendition and black CIA sites and the FBI's illegal use of National Security Letters (remember those?) -- and there have been virtually no investigation of anything. And the few times Congress has purported to do so, they have made matters worse, not better, by making clear that they will do nothing if their subpoenas are ignored, thereby affirmatively creating the incentive for any rational executive official with something to hide to ignore them.

Fairness compels me to note that our Congress has intrepidly demonstrated some investigative aggression. For instance, from a Press Release yesterday:


January 22, 2008

Washington, DC -- Today the Oversight and Government Reform Committee is issuing a subpoena for [former New York Yankees Second Baseman] Chuck Knoblauch to appear at a deposition regarding allegations in Senator George Mitchell's Report to the Commissioner of Baseball of an Independent Investigation into the Illegal Use of Steroids and Other Performance Enhancing Substances by Players in Major League Baseball. Chairman Waxman and Ranking Member Davis issued the following statement:

"The Committee has taken this step because Mr. Knoblauch failed to respond to the invitation to participate voluntarily in a deposition or transcribed interview and the February 13 hearing."

So it is important to note that they are fearless in some respects -- such as when it comes to forcing famous baseball players to make exciting appearances before them so they can "investigate" the grave matter of whether, as this blogger put it, "a man who is already a far outlier on the curve of human physical development wishes to shrink his balls and grow his boobs in order to swat a ball farther and with more frequency," all as part of "a situation where a collection of superhuman genetic freaks perform feats of unimaginable speed and strength for our amusement."

Unfortunately, their interest in investigating and uncovering lawbreaking at the highest levels of our government is far, far less -- nonexistent, actually. And worse than a mere failure to investigate, Congressional Democrats are institutionalizing the principle that the President and his highest aides are perfectly free to ignore any compulsory investigative instruments and thereby ensure that they have no real checks on what they do. Is there any remaining aspect of our government which Congressional Democrats haven't damaged severely through their toxic, weirdly consistent mix of passivity and complicity -- all in one short year of ostensible "control"?

UPDATE: For apologists of Democratic Party passivity, who claim endlessly that Democrats can stand for nothing because they'll lose elections if they do, such a claim is not only craven and self-destructive, but factually inaccurate as well. From a new poll released today, commissioned by the ACLU:

Majorities of voters on both sides of the political spectrum oppose key provisions in President Bush's proposal to modify foreign surveillance laws that could ensnare Americans, according to a poll released Tuesday.

The survey shows nearly two-thirds of poll respondents say the government should be required to get an individual warrant before listening in on conversations between US citizens and people abroad. Close to six in 10 people oppose an administration proposal to allow intelligence agencies to seek "blanket warrants" that would let them eavesdrop of foreigners for up to a year no additional judicial oversight required if the foreign suspect spoke to an American. And a majority are against a plan to give legal immunity to telecommunications companies that facilitated the Bush administration's warrantless wiretapping.

"Across the board, we find opposition to the administration's FISA agenda," pollster Mark Mellman said Tuesday.

There was also this, from a USA Today poll from several months ago:

14. Do you think Congress should -- or should not -- investigate the involvement of White House officials in this matter?

Yes, should - 72%; No, should not - 21%

15. If Congress investigates these dismissals, in your view, should President Bush and his aides -- [ROTATED: invoke "executive privilege" to protect the White House decision making process (or should they) drop the claim of executive privilege and answer all questions being investigated]?

Invoke executive privilege - 26%; Answer all questions - 68%

16. In this matter, do you think Congress should or should not issue subpoenas to force White House officials to testify under oath about this matter?

Yes, should - 68%; No, should not - 24%

The argument that Democrats should allow chronic lawbreaking because doing otherwise is politically risky ought to be too corrupt an argument for anyone even to entertain. But for those who believe in that calculus, it's also just factually false.

Glenn Greenwald

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