And you still think there will be elections in 2008?

Bold is not the word starting with B I would have chosen.
I'm skeptical about the defunding, but actually Congress does do it occasionally- this week they just cancelled the salary of the deputy commissoner of social security, who keeps advocating for privatization.

It is seriously time that the Repubs get engaged with saving the governmental structure of the good old USA--in a not too distant of a day their party will be dangling on the weak end of the rope.

WoW Can you imagine Bill Clinton in Karl Roves postion when H Clinton becomes Pres.With all these new tools the Bush Adm. has come up with,Slick Willy will make the Righties crawl to the exits.

Punishing and crippling Bush doesn't require shutting down any activity the public cares about

and the same Congress that can't do anything unless the Republicans agree is going to do this, how ?

Congress has to file a civil action seeking an order compelling the U.S. Attorney to refer the case to the grand jury.

This will take YEARS for it to be resolved in the courts because Bush will fight it in the courts. By the time the court resolves the case, George W Bush will no longer be in office. Even if it makes it to the Supreme Court, I have no doubt the conservative Roberts courts will side with Bush in his defense of executive privilege. So liberals LOSE again.

Barred from taking its case to court through the Justice Department, it may turn to its "inherent contempt" power to hold its own trials and even order officials to jail.

But George W Bush, because he is President of the United States, can PARDON anyone Congress holds in contempt. So once again you libs attempt to hold Bush's executive officials in contempt will be useless and futile. When will liberals admit this is a no-win situation for them because Bush holds all the cards in his hands?

cleek - I think budget votes are not filibusterable.

Stupid Byzantine Congressional rules. Worse than baseball.

Al: "But George W Bush, because he is President of the United States, can PARDON anyone Congress holds in contempt."

And this is good WHY? Once again, your anti-democratic impulses stand fully exposed. Why do you hate America so much, Al. What did it ever do to you? How are the Korean lessons going, by the way? Pyongyang needs -- and surely has -- men like you.

I like Kleiman's idea. If Bush wants to operate above the law, let him do it on his own damn dime.

Harnful enough to cripple the Spin Machine, harmless enough to allow the government to keep running.

Hey, you Congressional bean-counters - start countin'!

This nation has been through a similar crisis before, when the Mason cult stacked the judiciary with cronies, and their rule got so bad, that when an insider threated to out their secret society's influence on our government (in the form of a book), they murdered him, and at the trial, all 12 jurors and the judge were Masons, and the accused murderers got off scott free.

This caused a massive public backlash, and an actual "anti-mason party" designed to rid our government of all masonic influence. The Masons themselves basically were destroyed for a generation in this country, and mostly had to go underground - the organization is around today, but in a less secretive, more benevolent form.

I think that since the Democrats are unable to rid our government of the evil influence of the Neocons, and that since Bush will very likely escape all Justice, since he has the courts stacked with cronies now, we really need a third party, even if only for a short time. We could call it the Anti-Neocon Party.

Can you imagine Bill Clinton in Karl Roves postion when H Clinton becomes Pres/

A party that makes fundamental changes in the organic law of a country that would redound to its disadvantage when it inevitably returns to opposition is pretty clearly signaling that it never intends to return to opposition again.

At its base, a Presidential election is a Congressional act – the EC votes are counted by Congress, the result is certified by Congress. Protests are adjudicated by Congress. And these guys are saying ‘Congress can’t make us do anything’.

You got a more parsimonious explanation for the phenomenon we're observing, I’d like to hear it. Until then, it’s just me and William of Ockham…

When and how do special council/special prosectors get invoked?

Isn't this a time when something like that would be appropriate?

We can best resolve this constitutional impasse by impeaching George Bush and Dick Cheney. We don’t need to wait for the courts or anybody else. We should impeach George W. Bush and Dick Cheney now. Today.

We must remove these evil men from office while we still can.

I say BOTH. Use inherent contempt and defund the whitehouse staff. All of them. You'd have to keep constitutionally mandated officers (Pres and VP) and naturally the cabinet departments would continue. But why are we paying for whitehouse counsels who refuse to testify before congress?

Kevin: "Marty Lederman ... has more details on pursuing these options here. Mark Kleiman, by contrast, thinks Congress should ..."

Is there any reason why Congress should not now vigorously exercise both courses, or even other paths, simultaneously?

A mere two weeks ago, I'd daresay 99% of us didn't even know about the "inherent contempt" option. Perhaps there are a few more heretofore unknown provisions out there that might yet brings this felonious presidency to heel.

Thanks for reminding us of the Anti-Masonic Party, if for nothing more than reminding us about Americans defending republican values.

I am an advocate for a new constitution and a more modern political order for the United States. But this would only occur when the national institutions were unable to respond to the will of the people- usually when representative government is eroded by corruption or lack of consensus or when executive power is controlled by a dictatorship of one party. For a variety of reasons I have thought a new political order was inevitable, if for no other reason than demographic changes, but I never thought it would come to what we are witnessing. I also thought Gore Vidal was being his usual dramatic self when he said we lived in pre-revolutionary times, but I am beginning to agree with him.

But George W Bush, because he is President of the United States, can PARDON anyone Congress holds in contempt.

And since the act of contempt is ongoing, the congress can hold them in contempt again. Hint to Al: There will be a congress for longer than Bush remains President. I think I know who wins this. In any case, the point is to make Miers et al answer the subpoena; when the sergeant-at-arms drags her into the well, it won't matter what papers the chimp is signing. She'll will have been forced to appear and answer questions.

"[I]t may turn to its "inherent contempt" power to hold its own trials and even order officials to jail. The procedure was widely used in the 1800s, but hasn't been since 1934."

Wouldn't this run afoul of the separation of powers doctrine? While I'm sure Congress can use whatever means it wants to in policing its own members, I highly doubt that it can act like a court as to others outside of Congress and order a person to go to jail.

raw story has an excellent article about why we will not have elections in 2008-it is a must read for every citizen-it is chilling to think that this administration will kill anyone who tries to stop their power grab.

Yes, time to impeach Bush, Cheney and his supreme court apponities.TODAY.

We must remove these evil men from office while we still can.. . .
Posted by: Mitch Guthman on July 20, 2007 at 2:00 PM | PERMALINK

I'm all for this, and I hate to be defeatist, but I'm getting that sinking feeling that, it's going to come down to, again, one of two things:
- either a congressional vote, where it will end up being down to the wire, and Lieber-fucking-man will be the tie-breaker that saves Bush's ass (cuz, we're at war against the terrorists, dammit, we don't want to send the troops the wrong message!)
- or some kind of legal motion or subpoena that gets rejected by Bush-appointed judge after Bush-appointed judge, right up to SCOTUS, where they will back Bush, 5-4.

Bush has his back covered. There is no stopping them now. Sad to say, but there were two crucial points where the Dems lost this:
- When they let Lieberman's supporters elect him as an independent. (the Dem machine in his state could have put a stop to this - there were resources they could have pulled - wishy-washy support for Lemont was the reason why).
- When they rolled-over on the Roberts appointment. The Dems consistent fecklessness on ALL Bush appointments through 2006 completely flabbergasted me. I mean, even if they were going to LOSE the vote, vote no anyway, out of principle, right?

(unless they've got no principles. . . )

lutton: When and how do special council/special prosectors get invoked?

Oh, you mean the special counsel or special prosecutors appointed by the president of the United States?

See why living in the U.S. is starting to resemble one of those nightmares in which, chased by monsters, you run to various previously noble characters for help, and discover they're all monsters, too?

"Chicounsel":Wouldn't this run afoul of the separation of powers doctrine?

Not to anyone conversant with the law. However, Bush will refuse to abide by any finding of inherent contempt. One way or another, this is going to the Supremes. And then the death certificate for America will get its signature.

I hear there is a worker shortage in Australia. Maybe living in the outback wouldn't be that awful.

Since Bush is so cavalierly given to "bold new assertion[s] of executive authority," it is only a matter of time until others come forth with "bold new assertions" of their own.

After all, Bush is not the Executive Branch, he is just one guy in the White House. And I know of no reason why others can't also issue signing statements and such. After all, if Congress is just some crakerjack debating society, I know of no reason why the Executive or the Judiciary merits more attention.

Al: "But George W Bush, because he is President of the United States, can PARDON anyone Congress holds in contempt."

Dunce. The pardon power does not apply to contempt cases. Spend more time on passing the fourth grade on your twentieth attempt and leave the serious talk to the grownups.

My comment at 2:13 wasn't any kind of slam at Australia, BTW. I should have said that the Australian foreign worker program to my knowledge operates ONLY in unpopulated rural areas, not a happy prospect for this city girl.

The one ray of light I see:
To Bush's new executive order giving him the power to declare martial law:

"You and what army?"
Your army's in Iraq. What army are you going to declare martial law in the US with?

I think the brief effort to defund Cheney's office was greeted with general applause among the population as a whole (when Cheney was claiming he was not part of the executive branch). Actually doing this might be good.

"But George W Bush, because he is President of the United States, can PARDON anyone Congress holds in contempt. So once again you libs attempt to hold Bush's executive officials in contempt will be useless and futile."

I don't think the pardon power applies to contempt of congress because it is not considered to be "a crime against the United States."

Well, I checked out Orin Kerr's short post at the Volokh Conspiracy to see how this was playing among the usual commenters. It was almost 100% anti-Bush, which is pretty amazing, since that can be a really retrograde crew. I await Eugene's calm explanation why this is all perfectly proper, but so far everybody thinks Bush has stepped over the line.

cleek - I think budget votes are not filibusterable. Stupid Byzantine Congressional rules. Worse than baseball.

Posted by: anon on July 20, 2007 at 1:35 PM | PERMALINK

You are correct, sir. The statute precludes a filibuster.

Re: Our President, perhaps when he is getting his colonoscopy this weekend, the doctor will find his head.

I like both Kleiman's idea and the idea of employing inherent contempt.

Obviously, Bush is of a mind to create a Constitutional confrontation. The only way to fight back is to use powers that the Constitution clearly grants to the Congress. The power of the purse strings is one of them.

My only fear about using the inherent contempt procedure is that somehow it would incite the Bush WH to execute some truly scary confrontation, such as ordering its own federal marshals to stop physically the actions of any official the Congress empowers to enforce inherent contempt.

I really do believe that the Bush WH is evil enough to bring that day about, and even gladly.

Then, we would be in the midst of a true coup and a true dictatorship.

Impeachment. It's not just for blowjobs anymore!

Unless I am mistaken, Bush has to sign any appropriations bill for any part of the government. The Congress can defund the White House, but Bush can refuse to sign any bill funding the Congress as well. Congress, of course, holds the upper hand in that it can send the White House funding up as a separate item while burying it's own funding in a larger bill, but, remember, when Clinton faced off with Congress in 1995, it was his veto that shut down the government, not Congress' failure to pass a budget.

Equal braches of Goverment.Why doesn't Cogress sign a order saying it does not abide by this order and when can we expect Harriet to testify,Mean while we will be working on your Impeacment proceedings.

Re: Our President, perhaps when he is getting his colonoscopy this weekend, the doctor will find his head. Posted by: Pat

I question the need for the procedure. He's a complete asshole, so just what are they looking for?

Obviously, Bush is of a mind to create a Constitutional confrontation.

No.

Bush knows that the Republicans have the one thing Democrats don't have.

The 11th Commandment - delivered by Saint Ronnie:
Thou Shalt Not Betray Other Republicans.

There will be Republican defections in congress, but not enough to impeach. They'll be short, by one vote, (the one mook who didn't have any horses to trade in whatever backroom deal.... "Sorry, Mister McCain, you're gonna have to take another one for the team this time. We gotta cover Lieberman this time because he's gonna go with us on the big Fuck Americans Up The Ass bill next week.")

"Wouldn't this run afoul of the separation of powers doctrine?"

Nope, just as the separation of powers didn't protect Nixon or Clinton when they claimed executive privilege. Certain things, including investigations into criminal matters, outweigh the separation of powers.

"While I'm sure Congress can use whatever means it wants to in policing its own members, I highly doubt that it can act like a court as to others outside of Congress and order a person to go to jail."

Chicounsel, what part of "was widely used in the 1800s" are you having trouble understanding?

:1,.s/impeach/impale/g

Yancey Ward: I would give really good odds that Congress would overturn any Presidential veto of funding of Congress. They'll never lay off their staff, forego their paychecks, or the like.

It's authorization and appropriation time: good moment for Congress to get its scissors out.

Ah, Kevin.

More hysterics from the liberal ehco chamber. "Oh no! We're under a dictatorship!"

But in the ninties, when Clinton looked directly into the eyes of that grand jury and said those fateful words :"I did not have s_x with that young woman," and LIED, and the Democrats in Congress foiled the workings of the Constitution by not allowing the impechment to proceed, I didn't hear a peep from any of you.

This is just President Bush playing hardball, and making the liberals look foolish again in the process. JUst sit back and watch the master at work.

Where it leaves the American People is a better question. If I were Congress, I would immediately call the Sargeant of Arms and bring all those subject to contempt before the Congress...to be tried before the People's Representatives. The farce has continues long enough. These folks are cowards--if they were not, they would have shown up with the documents and honored the subpoenas. Let's get to business right now. These folks are asserting that the Executive Branch does not have to respond to the Congress on any substantive legal issue. That is the gist. They are asserting that the rule of law does not apply to their power structure...which is all we can really call it since they seem to believe that they can rule without regard to the Congress, can make and break summarily any laws they so choose, etc. In a nutshell, they have worked the state administration to such an extent that they are willing to assert and usurp the power of Congress.

This is a form of treason and a complete breach of their oaths to uphold the Republic that they took when they were sworn into office.

"and the same Congress that can't do anything unless the Republicans agree is going to do this, how ?"

Well, they don't actually have to pass any legistlation to do this. Instead, they merely FAIL to include these offices in the next budget. The majority initiates the budget and doesn't have to put anything in there they don't like.

However, I prefer impeachment. Saw Liz Holtzman on one of the talking head shows the other day, and from resesarch dating to her time on the Watergate Committee, she pointed out what the Founding Fathers meant by "high crimes and misdemeanors" and it was basically POLITCAL. That is, affronts to the political comity and not what we would call "crimes" today.

You know, I'm not even afraid of President Cheney anymore. He gets what he wants now anyway, and putting him in office would merely push him into the light.

Of course, conviction might not occur, but the process would show what the Little Emperor has been doing to the entire world, tho I suspect that the average American knows a heck of a lot less about this subject than folks overseas. So the best thing about impeachment would be that US voters finally focus on the Little Emperor's attempted seizure of absolute power.

And if Fredo Gonzales were impeached, it might even be possible to get the necessary votes for conviction. Wouldn't it technically be Fredo who forbade the US Attys from taking a contempt of congress to a grand jury?

Finally, send the Sargent at Arms to arrest Harriet Mires. To not even show up to claim executive privilege is clearly contempt of congress.

Defunding, hell. It's time for impeachment.

There's clearer grounds for it even than on any war-related issue.

You summon Gonzo back, ask him to explain why he perjured himself in previous testimony.

He doesn't show, you give him the Congressional contempt citation.

Bush waves his executive order and you have the basis of an Article of Impeachment for obstruction of justice.

Oh, can we impeach Al, while we're at it?

:2,.s/impale/draw-and-quarter/g & chmod 220 *

Egbert,

When were the "ninties?"

What's "impechment?"

But in the ninties, when Clinton looked directly into the eyes of that grand jury and said those fateful words :"I did not have s_x with that young woman," and LIED, and the Democrats in Congress foiled the workings of the Constitution by not allowing the impechment to proceed, I didn't hear a peep from any of you.

Um, because the Republican-majority house DID vote to impeach, because Clinton was tried in the Senate, and he was ACQUITTED. The system worked as spelled out in the Constitution. Have you even read the Constitution, Egbert? Or should I say, has someone ever read the Constitution aloud to you, as you probably are unable to read...

"when Clinton looked directly into the eyes of that grand jury and said those fateful words :"I did not have s_x with that young woman," and LIED..."

This is one of the great canards of the left.

Clinton actually said "I did not have sexual relations with that woman," and although the common everday understanding of "sexual relations" may make this statement SEEM like a lie, what the Republican'ts fail to see is that the judge in the case had defined the term "sexual relations" in such a way that Clinton was able to testify TRUTHFULLY that he did not have sexual relations with Monica Lewinsky.

You should look up the details, egbert, but I believe it was something like "touching the genitals or breasts" and the only part of her HE touched was the mouth. Thus receiving a blow job did not constitute "sexual relations" under the terms established in the instant case.

Note, Clinton did NOT say "I did not have sex with that woman."

OBF: The House will have the votes to impeach; a simple majority is all that's needed. The Senate will not have the 2/3 of votes necessary to convict, however.

franklyo: My only fear about using the inherent contempt procedure is that somehow it would incite the Bush WH to execute some truly scary confrontation, such as ordering its own federal marshals to stop physically the actions of any official the Congress empowers to enforce inherent contempt.

I really do believe that the Bush WH is evil enough to bring that day about, and even gladly.

There was a time, long ago, when I would have scoffed at such a statement, calling it foolish and paranoid. Not now.

However, I'd welcome this kind of action on Bush's part. The more over the top he goes, the more insanely this administration acts, the more openly he spits at the law, the more remotely likely that the electorate gets off its fat collective ass and raises holy hell about this. That's the only chance--slight as it is--of holding these bastards accountable.

It's Friday.

Where's the cats?

Obviously, I meant "canard of the right"

Just can't tell my right hand from my left these days.

"After all, Bush is not the Executive Branch, he is just one guy in the White House."

Posted by: Duncan Kinder on July 20, 2007 at 2:14 PM

Sigh, it's a shame that some many here are apparently ignorant about how our system of government operates.

Section I of Article II of the Constitution states: "The executive power SHALL BE VESTED in a President of the United States of America."

So Duncan, this means that Bush is not "one guy in the White House," he IS the executive branch of government. The Constitution places the entirety of executive power solely within the President. This means that no other governement offical or employee can exercise any executive power because all of it resides within the President. This executive power cannot be taken from the President by either Congress or the courts; hence the unitary executive theory.

David in NY,

Well, you are assuming that Republicans in the Senate and House will cooperate in a veto override. I see no reason to believe they would cooperate. If what you wrote about Congress wanting it's funds, then I could just as easily assume they would back down and fund the White House afterall.

To everyone else,

Egbert is correct- some of you are sounding like lunatics this afternoon. A coup in 2008? Please, get yourself to the nearest mental health facility.

One option is to prepare
prosecutions (with sentencing
guidelines) to go forward On January 20,
2009, whether or not they are blocked before then. If those guilty of contempt,
perjury and obstruction are aware that
they will eventually be prosecuted,
they may be more responsive.

"Certain things, including investigations into criminal matters, outweigh the separation of powers."

Posted by: PaulB on July 20, 2007 at 2:55 PM

No argument here, Paul. However, the firing of the US attorneys is not a criminal matter because the President had the authority to fire them for any reason or for no reason whatsoever. Even if one assumes that the reason for the firings were politically motivated, it still does not constitute a violation of law that would require investigation because the act of firing them was in itself legal and fully within the President's powers.

Given the radical anti-republican claims of the administration- they now claim that prosecutorial independence does not exist because "U.S. attorneys are emanations of a president's will." - it is quite surprising that someone of prominence in the opposition does not stand up and denounce them openly as assuming dictatorial powers. This stuff is so radical you would think that someone would take on the fight. It all seems to be kid gloves, finger wagging and pablum.

This executive power cannot be taken from the President by either Congress or the courts; hence the unitary executive theory.Posted by: Chicounsel

If your reasoning was any more circular, imbecile, we could use it as a hula hoop. I'd ask you to try again, but this board has far enough stupidity on it (Al, Egbert, mhr) without you adding more.

The doormat Democrats won't do anything.

Nothing to see here. Move along...

This executive power cannot be taken from the President by either Congress or the courts; hence the unitary executive theory. Posted by: Chicounsel

You seem to be confusing the president with an hereditary monarch or dictator (though the Bush comes as close as we've had to the latter in my life time).

Of course executive power can be taken away from a president by impeaching and convicting him.

Funny..I wrote about inherent contempt about a month ago...goody for me:

Inherent Contempt, where the subject cited is brought before Congress, held to answer charges, and punished. This hasn't been done in 70 years, but in my very non-legal-expert opinion, this is probably the route the House will have to take if they are serious about oversight and accountability in general.

Hey, I'm all for a contempt trial in the House. It's sad that we have to consider that necessary due to the actions of the Bush and Cheney administrations...

Now if I can quote this quote, I'll hit a blogwhoring hat trick...

JeffII,

That is not quite what Chicocounsel meant. What he meant is that Congress cannot take away the constitutionally vested power of the office itself.

"In America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other."

- Thomas Paine, Common Sense

Looks like we've come full circle.

"However, the firing of the US attorneys is not a criminal matter because the President had the authority to fire them for any reason or for no reason whatsoever."

Actually, that's not even remotely true.

"The Constitution places the entirety of executive power solely within the President."

Executive privilege is not spelled out in the Constitution anywhere. In any case, your statement is irrelevant, since executive power is not supreme, and it is, in fact, limited by both of the other branches of government.

"What he meant is that Congress cannot take away the constitutionally vested power of the office itself."

Except that both Congress and the courts can limit, and have limited, the power of that office, particularly when it comes to such things as executive privilege, which is not, in fact, a direct constitutionally vested power of the office.

Yancey: Egbert is correct- some of you are sounding like lunatics this afternoon. A coup in 2008? Please, get yourself to the nearest mental health facility.

Right, right. The president effectively claims he is subject to zero Congressional oversight, and some here point out just how desperately unhinged from reality Bushco has to be to make such an assertion, and we're crazy. The problem is not the president's insanity and his administration's desperate lawlessness, but the people who have the poor taste to point it out.

Chicounsel: I seem to remember it having been explained to you, on numerous occasions and in short words you can grasp, that the US attorneys investigation is attempting to determine whether obstruction of justice and other quite tangible crimes occurred. I realize that to a Republican foot soldier such as you, such crimes are negligible when they serve the higher cause of Bush. Out here in the real world, though, we have a quaint wish that the U.S. Department of Justice not be actively subverting the Constitution and breaking laws willy nilly.

Now, how many times do you suppose we'll have to explain this again? About as many times as we had to explain the facts of the Plame case to you? Is your memory this faulty in real life, or only when things you should have learned in law school inconveniently butt up against your shameful willingness to put your politics above the law?

PaulB,

Congress'power to supoena Executive Branch officials is also not spelled out in the Constitution. The powers of the branches and how they balance and check each other is pretty well laid out in the Constitution. If you want to overcome a claim of executive privilege, you will have to avoid convenient shortcuts like the ones advocated on this blog and others like it. The valid paths are clear- either impeach the executive and his officers (good luck with that)or, better, challenge the claim of executive privilege in the SC. If you win there and Bush still defies the Congress, then you have clear grounds for impeachment and conviction. If you lose in the SC, well, that settles that.

The problem is not the president's insanity and his administration's desperate lawlessness, but the people who have the poor taste to point it out.

Plus, we aren't the rugged individualist that Yancey is.

trex: Looks like we've come full circle.

All the way to the madness of King George.

egbert: "JUst sit back and watch the master at work."

Spoken like Beelzebub's right testicle.

How's boot camp going, by the way? Ready to ship out and put your pathetic skin where your lying mouth is? Of course, your silence will once again be taken as a sign of abject cowardice.

Yancey: Lunatics have this annoying habit of sharpening their pitch forks and then assembling in public.

That is not quite what Chicocounsel meant. What he meant is that Congress cannot take away the constitutionally vested power of the office itself.
Posted by: Yancey Ward

Look, Yancey, Chicocounsel is no more a lawyer than I am. He can't write for shit, and what he wrote boiled down to the president being above all law. We're not talking about the abstract concept of "the office of president," but the impeachable actions of the person "elected" president. They are two different things. The president is not above the law.

What no one has quite said explicitly is the true extent of the claim of executive privilege.

The claim is perfectly consistent with the President declaring that he can unilaterally declare anything and anyone he wishes to be subject to executive privilege. There is no exception made for actual or potential criminal activity. According to one articulation of the principle (in the Reagan administration), even the courts cannot overrule this claim of executive privilege.

I have seen nothing to contradict the idea that this is in fact what the Bush WH is asserting at this time.

In other words, Bush and his underlings are, in effect, completely above the law. The single thing that the Constitution allows as remedy is impeachment.

There are, according to this bizarre notion, at most two possible "accountability moments": at election time, and at impeachment time. Otherwise, the President and his underlings can perform any illegal action they may desire without a fear of being subject to interrogation of any kind. It's entirely at the pleasure of the President to make himself or any member of the WH available to questioning on any criminal matter.

Folks, let's just consider the scenario of inherent contempt for Harriet. The SJC sends the Sgt at Arms to go arrest her...who are we kidding?

Come on. They don't even get past WH security.

Do you think Congress wants to risk that kind of stand-off?

Shortstop,

Like I wrote to PaulB, if you think the claims are invalid, then Congress has two options for getting what it wants- it can either impeach now, or challenge the claim in the SC.

Come on. They don't even get past WH security.

What, Meiers lives in the WH too?

Yes perhaps the SGt at Arms can storm Harriet's house one night. I'm sure she has no security.

But I wasn't kidding. How would you envision an arrest by Sgt at Arms taking place? Certainly not at the WH yes?

franklyO 4:16 p.m.

Bravo! Finally, someone understands what mechanisms Congress has to check the Executive Branch.

JeffII,

Reread what Chicocounsel wrote. He did not write that the President is above the law. He was responding to the idiotic claim that George Bush wasn't the Executive Branch, just some guy in the White House. Now, this claim may have been made in jest, but it is clearly wrong, and Congress cannot treat the sitting President as anything other than the Executive Branch. It cannot compel his officers to testify without his permission. If Congress doesn't like what the president is doing with the office, then it's powers of correction are pretty damned clear.

Lunatics have this annoying habit of sharpening their pitch forks and then assembling in public.

Now, now.

Tar and feathers have a long and dignified history.

What, Meiers lives in the WH too?

Not to mention she hasn't officially worked there for months, either.

And yes, I do think Congress may be willing to risk almost any kind of stand-off if this continues, assuming it has the votes (and I don't know what the rules are in that regard; does anyone here?). However, of the three individuals cruising for contempt citations at this moment, Josh Bolten and Mike Duncan are less likely to be succesfully painted as helpless old ladies.

Like I wrote to PaulB, if you think the claims are invalid, then Congress has two options for getting what it wants- it can either impeach now, or challenge the claim in the SC.

Oh, yeah, and there's no way Senate Republicans -- that'd be the guys you vote for, Yancey -- would provide Bush with political cover no matter what the facts on the ground.

Way to spring to the defense of unfettered executive power, Yancey.

"It cannot compel his officers to testify without his permission"

Nonsense. The Supreme Court put that particular claim to rest in 1974 and reaffirmed it in 1998. Moreover, it's not even remotely clear that "executive privilege" can cover conversations and items to which he was not privy, particularly since "executive privilege" appears nowhere in the U.S. Constitution.

Stand-off nothing.

It's going to come down to how many spare clips George keeps in his desk-drawer.
(or maybe spare diapers, because it will be Cheney doing the shooting)

Mark my words.

I guess in the wake of all those stern letters Leahy has sent, I just can't imagine him doing anything as provocative as sending off the SaA to nab Harriet.

Sure hope I'm wrong shortstop. But not holding my breath.

It's all very MacBethian. Or, if you prefer, there's Kurosawa's version, 'Throne of Blood', with Toshiro Mifune in the end having finally lost all his allies, alone in a thatched tower eventually penetrated by one tiny arrow after another. A lovely image, and you can decde for yourselves what metaphors are at work -- as we "watch the master at work".

(or maybe spare diapers, because it will be Cheney doing the shooting)

Well, that might be all right, given what we know about Dick's competence with a gun. He'll aim at the sergeant-at-arms and hit Steve Hadley or David Addington.

Yancey Ward,

If you really think that the WH is well within its rights and perfectly justified to prevent by fiat any interrogation of perpetrators of CRIMINAL activity within the WH, and that ONLY impeachment is a remedy, then I don't know what to say to you.

You don't believe in democracy; you don't believe in the rule of law. I don't know what the hell you believe in, or why you presume to call yourself an American.

"Congress' power to supoena Executive Branch officials is also not spelled out in the Constitution."

Hmm... I rather suspect that you are incorrect, since Congressional oversight is pretty clearly covered in the Constitution. Since I cannot directly back this up, though, and don't have time to do the research, I'll consider this moot.

"If you want to overcome a claim of executive privilege, you will have to avoid convenient shortcuts like the ones advocated on this blog and others like it."

Um, that's not clear, either. Congress' power of inherent contempt has been upheld by the courts. If they use it and Bush doesn't like it, then he'll have to be the one to go to court. Frankly, I doubt they'll intervene, which is just one more reason why so many on the left are saying it's time to use this Congressional power.

All the way to the madness of King George.

Exactly. How many of the same complaints articulated in the Declaration of Independence does this president have to be guilty of before wingnuts will see the light:

He has refused his Assent to Laws, the most wholesome and necessary for the public good. [over 800 signing statements and counting]

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For transporting us beyond Seas to be tried for pretended offences: [substitute "tortured" for "tried" here]

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.

A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

"Not to mention she hasn't officially worked there for months, either."

This one, I think, is a non-issue. The evidence that Congress is seeking occurred during the time that she was working for the Bush administration. Bush cannot claim executive privilege for anything that happened after she left, but Congess isn't interested in testimony from that period. If executive privilege applies (and I don't think it does), it would apply for anything she did while working for the administration, even if she left it long ago.

The Supreme Court put that particular claim to rest in 1974 and reaffirmed it in 1998. Moreover, it's not even remotely clear that "executive privilege" can cover conversations and items to which he was not privy, particularly since "executive privilege" appears nowhere in the U.S. Constitution.

But here is what Ted Olsen, as part of the Reagan administration, said about the courts:

The President, through a United States Attorney, need not, indeed may not, prosecute criminally a subordinate for asserting on his behalf a claim of executive privilege. Nor could the Legislative Branch or the courts require or implement the prosecution of such an individual.

That is, it's not only the legislative branch that can't contradict the assertion of executive; the SC itself has no power to do so.

I have seen nothing in what the WH is currently asserting to contradict the idea that they would go that far in their claim of executive privilege.

Yes, that would make Bush essentially a law unto himself.

Chicounsel: Bush has extended what executive privilege will cover like a blanket; anything criminally-connected that Congress wants to cover, and he's obstructing justice.

As for your "unitary executive" nutbarrery, a president is not a person in the corporate sense of the law, in which the entire corporation is "one person."

BTW, since Cheney is a separate person, how can he really defend the "unitary executive" anyway?

Finally, I throw out my standard challenge to right-winger moonbats like you:

"Would you want Bill to have had this power? Do you want Hillary to have it?"

smott on July 20, 2007 at 4:18 PM: The SJC sends the Sgt at Arms to go arrest her...who are we kidding?

It's possible.

Come on. They don't even get past WH security.

Miers resigned on January 31st of this year, smott. I don't think she actually lived in the White House, anyways.

Do you think Congress wants to risk that kind of stand-off?

If it happened, it would sure tell us all how far we are down the path to a dictatorship, wouldn't it?

Yancey Ward: ..if you think the claims are invalid, then Congress has two options for getting what it wants...

Hell...We would probably welcome an open discussion of what does and does not constitute 'executive privilege' as established by court precedent. But when we can't even get the White House to tell us on what grounds they are making that claim:

..Fred Fielding refused to comply with a deadline set by the chairman of the Senate Judiciary Committee to explain its privilege claim, prove that the president personally invoked it, and provide logs of which documents were being withheld.

it's a bit hard to say that the administration would even comply with a Court decision not in their favor.

I mean, you're not dumb; can't you see that there is something very wrong going on here?

I guess in the wake of all those stern letters Leahy has sent, I just can't imagine him doing anything as provocative as sending off the SaA to nab Harriet.

Well, as I said, I doubt they'll go for Harriet for PR reasons. Josh and Mike will be less sympathetic figures, not that I personally find anything sympathetic about a dumbass WH counsel whose loyalty to the Boy King trumps her interest in upholding the law, and who uses the peepers of a German shepherd as a model for eyeliner application.

However, I wish people would lay off of Leahy and Conyers and their "stern letters." Perhaps a little more in the case of House Judiciary than House Senate, these guys are simply following proper procedure. Conyers especially is moving expeditiously and inexorably toward contempt proceedings. You have to go through the process--just for one example, giving Miers five days to answer the committee's enforcement of the subpoena. You can't just send off the sergeant-at-arms the minute she fails to show up.

Yes, it looks like lollygagging, but there is a method here, and failing to go through the motions can destroy Congress' case down the line.

PaulB: This one, I think, is a non-issue. The evidence that Congress is seeking occurred during the time that she was working for the Bush administration.

Actually, I was referring to smott's vision of the sergeant-at-arms going physically into the White House to get her and "not being able to get past WH security." I wasn't suggesting that because she doesn't work there anymore, she's off the hook.

The unitary executive theory does not appear in American history until those associated with the Federalist Society began looking for ways to establish a unitary executive through a nearly post-modern misreading of the Constitution. Anyone who has spent time reading English history, or the history of the founding of the United States, the anti-monarchist sentiment of that revolution, the writings of the founding fathers and the debates in the convention and early congress, and the political tracts of the time (and then all of American history until the 'conservative' movement) will know that the founders were most concerned with what is now being called the unitary executive. They didn't want to have one. They wanted a system of checks and balances- a system of limited power and a system where the executive would be subject to law and was not the embodiment of the law- as were absolute monarchs and the dictators of antiquity.

The long and the short of it is that the authoritarians in America want a way to legitimize a dictator. A dictator we need if we are to be safe and a dictator to dig out the rot in society. He will have the power to monitor, arrest and hold anyone whenever security demands, he can prosecute wars without input from outside his realm of power, he and his officers will be immune from criminal prosecution if he wishes, he can ignore the limitations on his power by other branches. The authoritarians tell us if we don't this situation we can impeach, if not, keep quiet. Even if the cronies in the Supreme Court uphold this wicked vision of government it will be undone.

"I wasn't suggesting that because she doesn't work there anymore, she's off the hook."

Ah, my mistake. I apologize for the error.

Exactly, bellumregio.

Well ... last time I read the Constitution the Congress has powers under it is well. Might be time to dust off the old inherent contempt power. Bone up on Jurney v. McCracken and so forth. In that COngress hasn't tried someone at the bar since since the 30's where do you suppose the congressional jail will be that they lock up Harriet Meiers in? I'm voting for the Longworth Cafeteria.

...where do you suppose the congressional jail will be that they lock up Harriet Meiers in? I'm voting for the Longworth Cafeteria.

I vote for the Senate Dining Room. See how much she likes that damn white bean soup when that's all she gets 3x a day.

where do you suppose the congressional jail will be that they lock up Harriet Meiers in? I'm voting for the Longworth Cafeteria.
Posted by: Pat on July 20, 2007 at 5:08 PM | PERMALINK

My first thought was "Guantanamo" - but then, after some consideration, and ruling out Uzbekistan (you know, our great Central Asian ally in the War on Terror, where the president boils detainees in oil. . .), I settled on Abu Ghraib.

"Reread what Chicocounsel wrote. He did not write that the President is above the law. He was responding to the idiotic claim that George Bush wasn't the Executive Branch, just some guy in the White House. Now, this claim may have been made in jest, but it is clearly wrong, and Congress cannot treat the sitting President as anything other than the Executive Branch. It cannot compel his officers to testify without his permission. If Congress doesn't like what the president is doing with the office, then it's powers of correction are pretty damned clear."

Interesting. So, if the House is going to vote impeachment, the president can have them all arrested first and sent to Guantanamo, right? It would be his right as the executive branch. Or, what if he is impeached and convicted? Who is going to enforce the conviction if he doesn't want to leave office? Nobody in the executive branch, because he is the executive branch. Or if he burns down the Capitol, who will do anything about that? Or executes all the members of congress?

frankly0 and PaulB,

Read the Constitution. It is a very simple document to understand. It spells out in no uncertain terms the powers the various branches hold over the others. Bush can declare executive privilege over any matter of the executive branch that he chooses to. The extent of his power to do so is limited only by the voters at election and the House and Senate's agreement to it. If the legislative branch thinks the claim has gone too far, then it has only limited options- (1) it can use the power of the purse to put pressure on the president (Kleiman's suggestion), or it can impeach the president and/or his officers and convict them. Congress has no other powers over the executive branch.

What the SC ruled, PaulB, is irrelevant. The Supreme Court has no power to enforce it's rulings. Even if the court ruled tomorrow that the privilege did not exist in these cases, it would be meaningless without Congress enforcing it, so again, we are back to power of the purse and impeachment. Nixon didn't turn over the tapes because the court ruled against him, but rather because Congress was going to impeach him to enforce the opinion.

People who think this is just a matter of arresting some people and putting them in the pokey for not testifying before Congress are ignorant about how the Federal Government is actually structured.

"Read the Constitution. It is a very simple document to understand. It spells out in no uncertain terms the powers the various branches hold over the others."

Okay, that's a fair request. I have read it, of course, but it's been a while and I certainly haven't made a study of it. As to your assertions about its simplicity, I beg to differ. If the document were that "simple," we wouldn't need the Supreme Court to clear things up and we wouldn't even be having this discussion.

"Bush can declare executive privilege over any matter of the executive branch that he chooses to."

And after that semi-reasonable start, you had to go here. No, he can't, particularly since "executive privilege" is mentioned nowhere in the Constitution, which means that this statement does not follow from your opening statement.

Moreover, if you read the jurisprudence on the issue of "executive privilege," it's not even remotely far-fetched to find that it protects only communications where the president was directly involved, not all workings of the executive branch. That's why Democrats were rather surprised to find Sara Taylor claiming that she had never discussed any of those issues with Bush since it pretty well sunk his claim to executive privilege.

"The extent of his power to do so is limited only by the voters at election and the House and Senate's agreement to it."

And by the Supreme Court's willingness to uphold it.

"If the legislative branch thinks the claim has gone too far, then it has only limited options- (1) it can use the power of the purse to put pressure on the president (Kleiman's suggestion), or it can impeach the president and/or his officers and convict them. Congress has no other powers over the executive branch."

Nonsense. See Nixon, 1974, and Clinton, 1998, not to mention inherent contempt.

"What the SC ruled, PaulB, is irrelevant."

Not in a country that lives by the rule of law and by the Constitution which, last time I checked, we still do. This is a silly comment, particularly given the long history of "executive privilege." The Supreme Court has always had the final say on the limits of executive privilege, particularly since it is nowhere spelled out in the Constitution.

"The Supreme Court has no power to enforce it's rulings."

And this is even sillier. Come back when you're ready to get serious.

"Nixon didn't turn over the tapes because the court ruled against him"

Yes, actually he did. See "The Brethren," by Woodward and Armstrong.

"People who think this is just a matter of arresting some people and putting them in the pokey for not testifying before Congress are ignorant about how the Federal Government is actually structured."

Or are aware of such things as inherent contempt, which you still refuse to acknowledge as a power of Congress, despite its long history.

PaulB,

I will make one more attempt, then I am done with this thread.

Courts do not enforce their rulings. Executives enforce the rulings. The Supreme Court has no power to enforce any ruling against anyone- the president, Congress, or myself. Now, if I break a law and a court rules against me, then the executive branch is the one that enforces the ruling, not the court.

When Congress attempts to enforce anything, like it's contempt rulings, it relies on the executive branch to do so. If I, a private citizen refused to testify before Congress, I might get charged under the inherent contempt power (a power, that I note, is not actually named in the Constitution), but it is the executive branch that does the enforcing, and even then, I retain my rights as a citizen, so they can't just lock me in the Senate washroom.

Yes, the president can declare anything to be executive privilege. It is up the Congress, and Congress alone, to limit this. The powers the Constitution allows Congress to use to limit the Executive are impeachment and powers exercised through control of the purse. There is nothing else.

Where you are going astray is that you think the conventions of our political culture, like when and when not privilege can be declared, have the force of written law. They do not. The branches check each other's powers. When dealing with the president, the powers of checking are impeachment and purse when we are talking about Congress.

"Courts do not enforce their rulings."

Sigh... Yancey, of course I know this. The Supreme Court has even had at least one its rulings effectively overturned through the inaction of the then-President. But now you're talking about a rogue President -- one who is no longer abiding by the Constitution or by the rule of law. And that's a different discussion than the one we're having. After all, it was the Supreme Court that effectively gave the President "executive privilege" more than 200 years ago.

And if you're going to go that far in imagining a rogue President, it's worth pointing out that Congress has no more means of enforcing its own rulings than does the Supreme Court, which means that your assertions about Congressional power would then be moot. And if you want to go there, well, that's an entirely different discussion.

"When Congress attempts to enforce anything, like it's contempt rulings, it relies on the executive branch to do so."

Unless it uses its power of inherent contempt, which requires no action on the part of the Executive Branch.

"I might get charged under the inherent contempt power (a power, that I note, is not actually named in the Constitution)"

Neither is executive privilege. Did you have a point?

"And even then, I retain my rights as a citizen, so they can't just lock me in the Senate washroom."

Actually, Yancey, yes they can. The Supreme Court settled this a long time ago when someone who was, effectively, "locked in the Senate washroom," filed a writ of habeas corpus. The Supreme Court ruled that Congress did, in fact, have the power to imprison him. Come on, Yancey; do your homework.

"Yes, the president can declare anything to be executive privilege."

That's trivially true, while at the same time meaningless and irrelevant to this discussion. A President can say any damn thing he wants but that doesn't necessarily mean anything. The limits of executive privilege are set by the Supreme Court, which first recognized the concept more than 200 years ago and which limited it again in 1974 and 1998.

"It is up the Congress, and Congress alone, to limit this."

Nope. We have more than 200 years of jurisprudence that limits this, as happened most recently again in 1974 and 1998. Congress did nothing to enforce either ruling, just as they did nothing to enforce the earlier rulings. Yes, I know that Congress was drawing up articles of impeachment in 1974; that still doesn't change the fact that they did nothing to enforce the Supreme Court's ruling. Bob Woodward reported that Nixon carefully scanned the Court's ruling and once he realized that they had left him absolutely no wiggle room, he obeyed the ruling.

"The powers the Constitution allows Congress to use to limit the Executive are impeachment and powers exercised through control of the purse."

And inherent contempt, which you still seem to have trouble with. Again, if you're talking about a rogue President, then Congress cannot limit that power any more than can the Supreme Court. You cannot have it both ways. Either this is a President who obeys the rule of law, in which case he is limited by the rulings of the Supreme Court as well as by Congressional action, or it is a President who does not, in which case, he is not limited by either.

"Where you are going astray"

Yancey, I'm not "going astray," I'm just refusing to play your games since they're irrelevant to the discussion.

"is that you think the conventions of our political culture, like when and when not privilege can be declared, have the force of written law. They do not."

Yes, Yancey, they do, which is why we have more than 200 years of settled jurisprudence on this. Marbury v. Madison settled the Supreme Court's role on issues like this a long, long time ago. It's ironic that you pretend otherwise in this case, given the Court's role in recognizing the concept in the first place.

"The branches check each other's powers."

All three branches, Yancey, not just two. The President's powers are limited by the U.S. Constitution, which is interpreted by the U.S. Supreme Court. You simply cannot arbitrarily leave them out of this discussion.

"When dealing with the president, the powers of checking are impeachment and purse when we are talking about Congress."

And inherent contempt, and the Supreme Court.

Yancey, you're trying to set up some sort of thought experiment, but the scenarios you are imaging aren't really relevant to the real world or to this discussion, which is why I refuse to play your games. Even worse, you're trying to have it both ways: asserting that the President would ignore a ruling of the Supreme Court but that that same President would accept the dictates of Congress. If you're going to assert that the Bush administration would, in fact, ignore the Supreme Court, then that might be a discussion worth having, but you will need to explicitly state that this is what you are discussing rather than dance around it.

Presidential assertions about executive privilege have been checked by the Supreme Court time and time again over the years. You have presented no evidence as to why that should no longer be the case today other than through simply asserting it (and endlessly repeating that assertion). I've got the historical record on my side, Yancey; what have you got?

What's ironic is your insistence on the Constitution, since executive privilege is nowhere enumerated as a Presidential power which means that I could just as easily propose a thought experiment that there is no executive privilege and that the President cannot arbitrarily declare there is!

"After all, Bush is not the Executive Branch, he is just one guy in the White House."

Posted by: Duncan Kinder on July 20, 2007 at 2:14 PM

Sigh, it's a shame that some many here are apparently ignorant about how our system of government operates.

Section I of Article II of the Constitution states: "The executive power SHALL BE VESTED in a President of the United States of America." So Duncan, this means that Bush is not "one guy in the White House," he IS the executive branch of government. The Constitution places the entirety of executive power solely within the President. This means that no other governement offical or employee can exercise any executive power because all of it resides within the President. This executive power cannot be taken from the President by either Congress or the courts; hence the unitary executive theory.

At the risk of provoking another sigh, I hereby issue the following signing statement:

The "executive power" referred to in Section I, Article II of the United States consititution means exactly and only that George Bush is just one guy in the White House. I further assert that other individuals in the government are endowed with such "nonexecutive power" as may be necessary and proper to do that which is appropriate under all the facts and circumstances.

With reference to the unitary power of the executive which cannot be taken by the Congress or by the courts, I note that - until such time, if any, that I may issue a signing statment to the contrary - I am neither. Hence, their asserted lack of power, at pressent, is moot.

By the way, Yancey, I think the fundamental disagreement we have is summed up in this statement of yours: "Where you are going astray is that you think the conventions of our political culture, like when and when not privilege can be declared..."

If you truly see executive privilege as a "convention of our political culture," then it's not surprising that you would see the Supreme Court as having a lesser role. After all, if it's just a "political convention," there's little for the Court to do.

Unfortunately, executive privilege isn't just a "convention of our political culture." The Supreme Court has ruled that it is inherent in the President's Constitutional authority, which places them firmly in the role of deciding the limits of that privilege, just as they have done quite a few times over the years, beginning, I believe, with Thomas Jefferson 200 years ago.

It's anybody's guess as to how this current confrontation will turn out, but there is a very good chance that the Supreme Court will have the final say on this, just as they did in 1974 and 1998. If you want to claim otherwise, then you'll need to do more to back up that claim.

ok, one last try.

Who is Congress going to send to apprehend the contemptors? It can't command any executive branch officer to do so if the executive orders otherwise. Who is going to imprison them? I suppose, if they are stupid enough to wander into the capitol building, the sargeant at arms can do so, but that is it. And if the executive branch chooses to, it can protect it's own officers.

Like I wrote earlier, you seem to think it is a settled matter of law as to what is and is not privilege. If the Constitution does not say otherwise, then the president can assert it whenever he wishes, and he does not need the SC's approval to do so. All the court can do is issue opinions or take sides in the dispute, which is not without it's public relations advantage if it can be obtained, but only the Congress can limit the President's use of privilege, and the only power to do so are the two I have listed previously.

PaulB,

What I am objecting to is the idea that Congress has some other constitutional power to force compliance with it's supoenas of executive branch officials than the two I listed. All the courts have done is issue opinions on the matter. These opinions have no force of law unless the legislative branch enforces them, but the only powers it has to do so, if the executive decides not to obey, is impeachment or using the power of the purse to punish. It is not possible to simply march up to the White House and arrest people. This is the essence of the separation of powers that are deliberately designed into the structure of the government.

Yes, we have political conventions on what is and is not covered by privilege, but these are not laws that get enforced in the normal manner such as the US Marshal Service arresting you and bringing you into court. They are conventions that have evolved and are evolving with time. The Congress has the power to keep the Executive from expanding these conventions in ways that diminish the Congress' power, but those powers are the two I listed over and over. There is nothing else other than public relations.

Which brings me to what I think will happen. Congress will ask for a ruling from the courts. If they are smart, they will petition directly to the SC and save time. I think the SC will take the case. In this particular matter, I expect Bush to win. And if he does, I think he will then allow some testimony from the requested officials. I know a lot of people think there is some big coverup here, but the evidence to date suggests it was just a bad PR move with no real illegalities. I think they are simply acting to protect the power of privilege, maybe expand it a little, and to tweak the noses of the Democratic chairmen. I think the Democrats in Congress are being lead on a wild goose chase. On the other hand, if the court rules against him, Bush will concede. If he actually pushes it further after being slapped down by the SC, then I think they are trying to hide something.

Who is Congress going to send to apprehend the contemptors? ...If the Constitution does not say otherwise, then the president can assert it whenever he wishes, .... Yancey Ward at 11:04 PM

The power of Inherent Contempt allows congress to use the Sergeant of Arms to arrest and imprison for the term of the congress anyone found to be in contempt.

...Under this process, the procedure for holding a person in contempt involves only the chamber concerned. Following a contempt citation, the person cited for contempt is arrested by the Sergeant-at-Arms for the House or Senate, brought to the floor of the chamber, held to answer charges by the presiding officer, and then subject to punishment that the House may dictate (usually imprisonment for punishment reasons, imprisonment for coercive effect, or release from the contempt citation.)
Concerned with the time-consuming nature of a contempt proceeding and the inability to extend punishment further than the session of the Congress concerned (under Supreme Court rulings), Congress created a statutory process in 1857. While Congress retains its "inherent contempt" authority and may exercise it at any time, this inherent contempt process was last used by the Senate in 1934, in a Senate investigation of airlines and the U.S. Postmaster. After a one-week trial on the Senate floor (presided by the Vice-President of the United States, acting as Senate President), a lawyer who had allowed clients to rip up subpoenaed documents, William P. MacCracken, was found guilty and sentenced to 10 days imprisonment. [1]
The Postmaster had filed a petition of Habeas Corpus in federal courts to overturn his arrest, but after litigation, the US Supreme Court ruled that Congress had acted constitutionally, and denied the petition in the case Jurney v. MacCracken, 294 U.S. 125 (1935)...

A short review of Executive privilege which is not an enumerated constitutional power of the president.

...The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon, but only to the extent of confirming that it can be invoked when the oversight of the executive would impair that branch's national security concerns.
Historically, the uses of executive privilege underscore the untested nature of the doctrine, since Presidents have generally sidestepped open confrontations with the United States Congress and the courts over the issue by first asserting the privilege, then producing some of the documents requested on an assertedly voluntary basis....

How far along the road to dictatorship indeed!"

"White House preparing to stage new September 11 - Reagan official"
http://en.rian.ru/world/20070720/69340886-print.html

' 20/07/2007 13:58 WASHINGTON, July 20 (RIA Novosti) - A former Reagan official has issued a public warning that the Bush administration is preparing to orchestrate a staged terrorist attack in the United States, transform the country into a dictatorship and launch a war with Iran within a year.

' Paul Craig Roberts, a former Assistant Secretary of the Treasury, blasted Thursday a new Executive Order, released July 17, allowing the White House to seize the assets of anyone who interferes with its Iraq policies and giving the government expanded police powers to exercise control in the country.

' Roberts, who spoke on the Thom Hartmann radio program, said: "When Bush exercises this authority [under the new Executive Order], there's no check to it. So it really is a form of total, absolute, one-man rule." ...'

' "The administration figures themselves and prominent Republican propagandists ... are preparing us for another 9/11 event or series of events," he said. "You have to count on the fact that if al Qaeda is not going to do it, it is going to be orchestrated."

' Roberts suggested that in the absence of a massive popular outcry, only the federal bureaucracy and perhaps the military could put constraints on Bush's current drive for a fully-fledged dictatorship. ...'

"Lunatics have this annoying habit of sharpening their pitch forks and then assembling in public."

"Now, now.

"Tar and feathers have a long and dignified history."

And of course, the guillotine also achieved a fair degree of historical prominence, if I recall.

As an attorney, if I were a USA, I believe I would simply ignore the executive order.

Who is Congress going to send to apprehend the contemptors? It can't command any executive branch officer to do so if the executive orders otherwise.

The Sergeant at Arms is authorized to arrest and detain any person violating Senate rules, including the President of the United States.

http://www.senate.gov/reference/office/sergeant_at_arms.htm

I suppose, if they are stupid enough to wander into the capitol building, the sargeant at arms can do so, but that is it.

That is enough. The Sergeant at Arms has jurisdiction as if he were a peace officer in the district where the offense took place. If instructed by the House or Senate, he can compel anyone in the U.S. to appear before them - no exceptions.

Next.

"Who is Congress going to send to apprehend the contemptors?"

Um, Yancey, why on earth would you assume that the Senate's officers only have authority in the Capitol Building itself? Of course they'll send the Sergeant at Arms, just as they have done in the past. They do not need the Executive Branch to enforce inherent contempt, just as they have not needed it in the past.

"And if the executive branch chooses to, it can protect it's own officers."

Now you're talking about a rogue President again, which is not the topic under discussion.

"Like I wrote earlier, you seem to think it is a settled matter of law as to what is and is not privilege."

By and large, it is, Yancey. If you are going to claim otherwise, it behooves you to support that claim. Thus far you have not done so.

"If the Constitution does not say otherwise, then the president can assert it whenever he wishes"

No. That's a blatant misinterpretation of the Constitution. The Constitution does not limit the authority of the President, wherein the President can do anything except what the Constitution prohibits him to do, it provides the authority of the President, wherein he can only do what he is specifically allowed to do.

"and he does not need the SC's approval to do so."

Yes, Yancey, he does. See above. The Constitution sets the limits on the President's authority; the Supreme Court interprets the Constitution.

"All the court can do is issue opinions"

LOL.... Yancey, that can be said of anything the Supreme Court does. It's really amazing how little respect you have for this third, and coequal, branch of our government. Again, if you're going to talk about a rogue President, then say so. Otherwise, this is just silly.

"but only the Congress can limit the President's use of privilege, and the only power to do so are the two I have listed previously."

Sorry, but you're still wrong.

Mike once again beats me to the punch. One day I'm going to sit down and buy you a beer. You too, Paul.

"And you still think there will be elections in 2008?"

Neal: Well, if there are, it now appears they'll be every bit as accessible to manipulation as the past several have been:

"Overhaul Plan for Vote System Will Be Delayed"
[The New York Times]
http://www.truthout.org/docs_2006/072007M.shtml

' Democratic leaders in the House and Senate are slowing their drive to revamp the nation's voting systems, aides said yesterday.

' Under pressure from state and local officials, as well as from lobbyists for the disabled, House leaders now advocate putting off the most sweeping changes until 2012, four years later than planned.

' Overhauling voting systems before next year's presidential election had once been a top Democratic priority, primarily to allow greater accountability and be certain that all votes registered on computerized touch-screen systems were counted. But state and local elections officials told Congress they could not make the changes in time for the balloting in November 2008, particularly in light of the extra workload involved in preparing for next year's much-earlier presidential primary season. ...'

"What I am objecting to is the idea that Congress has some other constitutional power to force compliance with it's supoenas of executive branch officials than the two I listed."

You can object to it all you want, Yancey, but you're still wrong -- wrong about the power of inherent contempt and wrong about the role of the Supreme Court.

"All the courts have done is issue opinions on the matter."

ROFL... Yancey, that's all any court ever does! Those rulings have the force of law, Yancey; they always have. A President is bound by those rulings just as you and I are.

Again, if you want to talk about a rogue President, then say so explicitly. But you had then better be prepared to explain just why that President would be bound by those two powers of Congress that you are so proud of when he would not be bound by a Supreme Court ruling.

"These opinions have no force of law unless the legislative branch enforces them"

Sigh... Again, Yancey, if you want to talk about a rogue Presidency or you want to talk about a Bush administration refusing to abide by a direct ruling of the U.S. Supreme Court, then say so. Otherwise, you're just playing games.

"but the only powers it has to do so, if the executive decides not to obey, is impeachment or using the power of the purse to punish."

LOL.... Yancey, why on earth would a President who has decided to not obey a direct ruling of the Supreme Court pay any attention to impeachment proceedings or Congress's "power of the purse?" How are these any more binding on a rogue President than a Supreme Court ruling?

"It is not possible to simply march up to the White House and arrest people."

Actually, yes it is. Both the Courts and Congress could, in fact, order that very thing. In any case, who said that they would have to go to the White House to arrest those held in contempt?

"This is the essence of the separation of powers that are deliberately designed into the structure of the government."

No. In your proposal, you are now talking about a President who is explicitly and deliberately not abiding by the separation of powers. What's most interesting to me is that you're so reluctant to admit this. Why is that?

"Yes, we have political conventions on what is and is not covered by privilege"

No, Yancey; these are emphatically not "political conventions" and I'm at a loss to understand why you are pretending that they are. The concept of "executive privilege" is bound up in the U.S. Constitution, which means that it does indeed have the force of law. Why are pretending otherwise?

"They are conventions that have evolved and are evolving with time."

No. Or, if so, no more than any other difficult Constitutional question.

"The Congress has the power to keep the Executive from expanding these conventions in ways that diminish the Congress' power"

By explicitly going to the Supreme Court to elicit a ruling on the issue, Yancey, which I suspect will eventually happen in this case.

"but those powers are the two I listed over and over."

Nope. Sorry, but you're still wrong, Yancey. It's either all or nothing. If it's a rogue President, then those Congressional powers you cite are worthless. And if it is not, then the Supreme Court will ultimately decide the issue. And, of course, you are completely wrong about the power of inherent contempt.

"Which brings me to what I think will happen. Congress will ask for a ruling from the courts."

I suspect so.

"If they are smart, they will petition directly to the SC and save time. I think the SC will take the case."

I don't. The Supreme Court almost never takes such expedited cases. There would have to be some sort of national emergency to justify such an expedited case and what is currently happening does not rise to that level, in my judgment.

"In this particular matter, I expect Bush to win."

Nope. The precedents of 1974 and 1998 are clearly against him. Issues of national security and diplomacy are the only claims of privilege that the Court has explicitly granted the President. All other privilege claims have to be weighed against the need for the information that the President is trying to hide.

"And if he does, I think he will then allow some testimony from the requested officials."

And again, nope. If he wins, he has no reason to allow such testimony.

"I know a lot of people think there is some big coverup here, but the evidence to date suggests it was just a bad PR move with no real illegalities."

Garbage. You haven't been paying attention to the evidence if you claim that this was just a "bad PR move." Jesus, Yancey, how many times does the Justice Department have to get caught in deliberate lies to Congress before you start to suspect they're hiding something?

"On the other hand, if the court rules against him, Bush will concede."

He will have no choice.

"If he actually pushes it further after being slapped down by the SC,"

If he "pushes it further," then he will, in fact, be that rogue President I've been referring to and he will almost certainly be removed from office.

By the way, Yancey, I still have trouble believing that you can even remotely assert:

Yes, we have political conventions on what is and is not covered by privilege

Yancey, just what do you think the Supreme Court was doing in 1974 and 1998? Setting "political conventions?" Do you really have such contempt for our judicial system and the rule of law?

And this one is almost as bad:

They are conventions that have evolved and are evolving with time.

Only to the extent that these are matters of Constitutional interpretation and the circumstances have varied each time the Supreme Court has considered the issue. I've seen no sign ever that a) these are "conventions" (as compared to settled case law) or b) that these are "evolving with time." To my knowledge, the 1998 Court ruled precisely as did the 1974 Court. What is your basis for asserting that the standards have "evolved?"

This was truly your most frightening statement, though:

If the Constitution does not say otherwise, then the president can assert it whenever he wishes, and he does not need the SC's approval to do so.

Using this view of the Constitution and the Supreme Court, the President has very nearly unlimited power. That is emphatically not what the framers of our Constitution wanted nor what they set up. I'm astonished that you have such little respect for the Judicial Branch of our government and so much deference to the Executive Branch. Thank goodness we're not living in your America, at least not yet.

PaulB -- Have immensely enjoyed your commentary here. Thanks. And although I have little of substance to contribute, I found the synonyms for "rogue" to be entertaining, including: crook, criminal, offender, villain, felon, robber, lawbreaker, scoundrel, rascal, scalawag, ne'er-do-well, good-for-nothing, troublemaker, waster, slob, lazybones, shiftless, irresponsible, and malingerer.

Yancey -- You say that "These opinions have no force of law..." Are you really suggesting that the power of enforcement is the ultimate definition of justice, the rule of law, and proper governance? If so, why stop there? You might just as well be quoting Mao, "power grows out of the barrel of a gun". In some places that may be true; I hope our system of government can do better.

Guess congress is saving up its energy in case we ever get a REALLY bad president.

Sorry -- thought I canceled the first, pronoun-challenged entry.

(Guess I did, then.)

There is much discussion above of why Nixon turned over the tapes. Was it due to the SC decision or was it due to Congress's threat to impeach? This is interesting but misses the point. There are two issues: the desire to hold onto power and the sense of loyalty to the institution (the presidency, the constitution, etc.) In my view, Nixon turned over the tapes because he believed not doing so would be worse for him than doing so. It would not be seen as legitimate by the voters and would accellerate impeachment. Bush has little concern about that. After Reagan and Clinton and a slew of Republican majorities in congress and decades of dicta about the inherent corruption of the "democrat" party, there just is very little outrage left to gin up. There's very little Bush can do to to make his situation worse, as long as 34 Senators stick with him. And even if he's impeached and survives by 66 or 65 to 34, it doesn't get worse for him. He could nuke Iran the next day. Bush is really down to a core of partisan support that believes either a) to hell with the constitution if it impedes the godly leadership of our president, or b) all that is being said about Bush's lawlessness is just erroneous -- that it's the democrats who are lawless, stupid, and possibly even treasonous by not letting the president execute his office as he sees fit. Facts do not matter. Most of that core of loyalists cannot be persuaded. They are either totally partisanized or idiotized. Nixon feared going over a cliff with the people. Bush discovered that cliff is really quite small and there's a lot of nice soft sand at the bottom.

Where does that leave Congress?

Well now Kevin Drum doesn't have to ask who the isolationist is, it's the Bush administration.

We have a non-working DOJ and Bush operating in a fish bowl.

If the president has asserted executive privilege, then no U.S. Attorney will be allowed to pursue contempt citations against administration officials for refusing to testify before Congress.

Lets break down the Whitehouse into a non-functioning, isolationist island – we got to impeach this president and VP because it doesn't get better from here?

May we should take a page from the California Governor’s Gray Davis recall election and take a national vote on Bush and Dick Cheney – Republicans saw nothing wrong with doing that to the California governor, it didn’t hurt California and won't hurt the US either, and who knows, we might get a functioning federal government again.

Good work, Paul.

Interesting reading on Congress' options here.

For those musing yesterday over the choice of venues for holding a person arrested by the sergeant-at-arms: the custom in the past has been to turn the prisoner over to...the warden of the DC jail. Oh, my. The prospect of Harriet Miers surrounded by a bunch of tough street hookers asking her what she's in for is...just delicious.

If the Justice Department truely refuses to prosecute, that does not mean the courts are closed. Why not have congress ask that the court appoint a special prosecutor to try the cases. That way, any judgement would have the full aothority of the courts and not be simply the political jusgement of the Congress.

eb

"Bush discovered that cliff is really quite small and there's a lot of nice soft sand at the bottom."

It's kind of hard to argue with your analysis, particularly given the obvious contempt that the Bush administration has for checks and balances. There's one wild card, though -- if Bush refuses to acknowledge or obey a ruling by an admittedly conservative Supreme Court, I think that would be the straw that breaks the camel's back for his Congressional defenders and I think that the odds of a successful impeachment would go up dramatically. Obviously, I cannot prove this and this may just be wishful thinking.

"Why not have congress ask that the court appoint a special prosecutor to try the cases."

Or ask the courts to intervene to force the Justice Department to take up the case. That is indeed what Congress is likely to do, should this escalate to the next level.

"Are you really suggesting that the power of enforcement is the ultimate definition of justice, the rule of law, and proper governance? If so, why stop there?"

That's what is most irritating about Yancey's argument: that the Judicial Branch has no power at all because all it can do is "issue opinions." It's nonsensical. What's interesting is that he cannot bring himself to take the obvious next step and acknowledge that a Chief Executive who is prepared to ignore a direct order from the Supreme Court would similarly be prepared to ignore a battle with Congress.

If he insists that the Courts are powerless because they lack an enforcement arm, then Congress itself is powerless for precisely the same reason. Those two enumerated Congressional powers he's fixating on would be entirely worthless in such a scenario.

Again, I don't quite understand the MSM reporting on this. Isn't the U.S. Attorney's role to carry out what Congress asked it do? If that's not the U.S. Attorney's roles, what is the point of contempt proceedings Congress undertakes,which happens to be one its oldest powers? In this situation, the U.S. Attorney should have no discretion to thwart Congress's action. This is another indication of the goalposts changing to a new place - a place where most take for granted that an officer of the court and the people's attorney has the right to ignore Congress's powers.

Imagine if this were the standard during the Nixon era - law enforcement officals, U.S. Attoeneys, and DoJ having carte blanche authority to ignore what they want for purely political purposes. But in this era we forget the past one.

For more on Congress's options and its power of "inherent contempt," see this article in The Washington Post. It pretty much demolishes Yancey's arguments.

"Again, I don't quite understand the MSM reporting on this."

They are pretty much just playing the stenographer's role that they have been playing far too much these past years.

"Isn't the U.S. Attorney's role to carry out what Congress asked it do?"

Yes, but the Bush administration's Justice Department has ruled otherwise, claiming that Congress cannot compel the Justice Department to act in this manner, a rather radical claim that has no Constitutional foundation. Until this ruling is overturned by the courts, though, the Bush administration clearly intends to cling to this ruling.

"If that's not the U.S. Attorney's roles, what is the point of contempt proceedings Congress undertakes,which happens to be one its oldest powers?"

Yup, which is why quite a few people are telling Congress to use its power of inherent contempt, which does not depend on the Justice Department or the Executive Branch. That also has the advantage that it cannot be tied up in the courts for years.

"In this situation, the U.S. Attorney should have no discretion to thwart Congress's action."

Agreed, but until and unless the courts throw out that Justice Department opinion, it will continue to stand.

What irritates me most about the MSM is their inability to recognize, and be horrified about, the Constitutional crisis that this administration is perpetrating -- the radical expansion of the President's powers, the politicization of the entire Executive Branch, the refusal to recognize the oversight power of Congress, the refusal to abide by the rule of law, and so on. That's where the real crime is.

Oops... Sorry, shortstop, I missed that you had already posted that Washington Post link. Interesting reading.

… buy you a beer. You too, Paul.trex at 11:45 PM

I'd love to tip a few with the busty blond Calpundit gal closest to the camera. Sch-wi-ng-g-g!!!

I noticed in the news that Ole George had polyps removed, the question I have did the doc remove them from his brain? because Ole George seems just as stupid as he ever was but now recently he is acting more ignorant. Typical Republican I guess and from Texas to!

Isn't the U.S. Attorney's role to carry out what Congress asked it do?

No. US Attorneys are political appointees in the executive branch. Their job, within the parameters of the law, is to do what the President directs that they do, and the President has clear and unmistakable plenary authority to direct the exercise of prosecutorial discretion (or to foreclose it utterly and permanently via pardon.)

However, while the President clearly has that power, Congress has the power and responsibility to hold him personally accountable for the abuse of his discretion. However, the present Congress, despite having a majority of the "opposition" party, has been acting as an enabler of Presidential abuses because its leadership has openly dismissed the possibility of even considering holding the President personally responsible for any abuses. So long as that continues, you can expect virtually unlimited abuses of executive authority, because their is no cost to such abuses.

Cheney says VP job a "cruddy one" for once he is right the job Cheney has been doing is very cruddy on his part and that goes for Ole George to.