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The Nation

Congress Moves Toward Contempt Citation

"Are congressional subpoenas to be honored or are they optional?" House Judiciary Committee chair John Conyers asked Thursday.

It was a rhetorical question.

Conyers, who has served on the Judiciary Committee long enough to remember the Watergate-era clashes between the executive and legislative branches that were supposed to have resolved that issue, knows that congressional subpoenas are backed up by the full power of the U.S. Constitution.

Unfortunately, President Bush is not so familiar with the dictates of the Constitution and the rule of law it outlines.

So, says Conyers, "Apparently we have to run this out."

"This" is the process by which former White House counsel Harriet Miers could be held in Contempt of Congress for failing to appear before a Judiciary Committee hearing to which she had been summoned to testify about the role she and other key figures in the administration played in efforts to politicize federal investigations and prosecutions.

Miers was to have testified Thursday. But she failed to appear after the president ordered his former aide to defy the committee.

Bush asserts that he has the authority -- via a dramatically inflated interpretation of his executive privilege -- to declare that his former counsel is not bound by the rules that require individuals who are subpoenaed by Congress to cooperate.

The president appears to believe that he has the authority to obstruct an investigation that could eventually come to focus on his action.

The chairwoman of the subcommittee, California Congresswoman Linda Sanchez, disagrees.

In what was the most dramatic moment yet in the clash between the Congress and the Bush White House, the Judiciary Committee's subcommittee on administrative law was gaveled into session Thursday by Sanchez.

Across from the committee members was an empty chair at the table from which Miers was to have testified.

Sanchez ruled Bush's assertion of executive privilege out of order, declaring, "Those claims are not legally valid. Ms. Miers is required pursuant to the subpoena to be here now."

The subcommittee then voted 7-5 to sustain Sanchez's ruling. Said Congressman Steve Cohen, D-Tennessee, "What we've got here is an empty chair. I mean, that is as contemptuous as anybody can be of the government."

Such contempt can have consequences.

Unless the president backs down, the full Judiciary Committee is expected to vote to hold Miers -- a longtime friend and legal adviser to Bush who the president nominated for the Supreme Court -- in contempt.

After that, the full House can vote to approve a Contempt of Congress citation. If a majority of House members favor issuing the citation, it becomes the responsibility of the U.S. Attorney for the District of Columbia to bring the matter before a federal grand jury for action to compel Miers to testify.

The issuance of a Contempt of Congress citation, which could come before the August recess, would set up a legal battle between the Congress and the White House more serious than any since the struggles that played out in 1973 and 1974 between Congress and former President Richard Nixon.

In that dispute, the courts ruled repeatedly and decisively in favor of the Congress.

Ultimately, the House Judiciary Committee would endorse an article of impeachment charging Nixon with failing to cooperate with Congress. Shortly afterward, Nixon resigned in disgrace.

As in the Watergare fight, Republicans on the Judiciary Committee tried Thursday to suggest that the rule of law did not apply a Republican president and his aides. "It's time for the majority to stop swaggering its power in this Congress," grumbled Utah Congressman Chris Cannon, the senior Republican on the subcommittee.

Cannon, who has never been accused of being a Constitutional scholar, claimed the courts would uphold the president's assertion of executive privilege.

In fact, White House lawyers have based Bush's unprecedented claim of an authority to declare his aides and appointees immune from congressional scrutiny not on precedents found in court rulings but on opinions outlined by administration lawyers. Jonathan Turley, the noted Constitutional scholar who teaches law at George Washington University, told the Associated Press that Bush is going significantly further than past presidents in refusing to cooperate with Congress. As such, he suggests, the administration "could not have picked worse ground" from which to try and defend a claim of executive privilege.

The fight is now about more than getting to the bottom of the of the U.S. Attorneys case, and the role of Miers and Bush in that scandal.

"If we do not enforce this subpoena," says Conyers, "no one will ever have to come before the Judiciary Committee again."

And the Constitutionally-defined system of checks and balances, which has served the Republic for the better part of 220 years, will become a relic of history.

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John Nichols' new book is THE GENIUS OF IMPEACHMENT: The Founders' Cure forRoyalism. Rolling Stone's Tim Dickinson hails it as a "nervy, acerbic, passionately argued history-cum-polemic [that] combines a rich examination of the parliamentary roots and past use ofthe 'heroic medicine' that is impeachment with a call for Democraticleaders to 'reclaim and reuse the most vital tool handed to us by thefounders for the defense of our most basic liberties.'"

FEMA: Still F’d Up

Written and Reported by Matthew Blake

Gulf Coast residents who've witnessed the incompetence of FEMA might find dark humor in the federal agency's unifying effect. Democratic and Republican Senators, Louisiana and New Orleans government leaders, and even former FEMA officials say the agency remains a major obstacle to Hurricane Katrina disaster recovery.

Senator Ted Stevens of Alaska upped the ante at a Senate Homeland Security subcommittee hearing Tuesday, decrying FEMA as fundamentally incapable of correctly spending and allocating the $110 billion dollars it was given by Congress to assist the Gulf. (In reality, only $26 billion was appropriated to rebuild Louisiana.) The Republican Senator compared the damage from Katrina to France and Germany after World War Two concluding, "You need a new Marshall Plan for this area, not just FEMA."

That comparison struck a chord with Louisiana Senator Mary Landrieu, who convened the hearing. "You really hit the nail on the head comparing it to parts of Europe after World War Two," she said. The city's population is 60 percent of what it was before Katrina, murder rates have climbed to the deadliest in America and areas like the Lower Ninth Ward remain blighted and barren.

Stevens, one of the oldest and most conservative members of the Senate, would seem an unlikely champion of aggrieved New Orleans citizens. But he effectively conveyed both the magnitude of Hurricanes Katrina and Rita's devastation and the structural problems FEMA has encountered under the Bush Administration and the four year-old Department of Homeland Security.

Additional voices in the anti-FEMA chorus Tuesday included Mark Merritt, an assistant director at FEMA under Bill Clinton; Jeff Smith, the Louisiana governor's office executive director for homeland security and emergency preparedness, and New Orleans Mayor Ray Nagin. Nagin told the committee that, "There needs to be some consistency. Every two months we deal with a different FEMA representative. It's like we're always starting from scratch."

Example after example was given to illustrate how FEMA has not delivered promised funds. Witnesses were sharply critical of the agency's "project worksheets," the excessively bureaucratic and inefficient reimbursement program through which federal Katrina recovery money is rewarded to state and local government--and often delayed, if it arrives at all. "If we used project worksheets after World War Two, we'd still be rebuilding Germany today," Landrieu remarked.

For example, Kevin Davis, President of St. Tammany Parish in New Orleans, said one FEMA official gave the green light to a plan to clean up his devastated neighborhood, but then a new official was reassigned to the area and concluded that the worksheet's wording disqualified his Parish for funding.

"FEMA officials arbitrarily decided what they could and could not get done," he said. St. Tammany Parish is now suing the agency in federal court.

Such criticisms come a day after a House Homeland Security Committee report noting that about one-third of all top-level FEMA positions are currently unfilled. Landrieu conceded that ultimately "it's the private sector that will rebuild New Orleans." Yet "without basic government infrastructure" she said, the city will remain in rubble.

Which Side Are You On?

In the last few weeks, the obscenely wealthy titans of private equity and hedge funds have assembled a huge lobbying machine to work the hallways of Congress and lobby its key committees. The reason: to subvert the common good and abort a fair tax increase on their partnerships and compensation fees.

The proposed increase--from the capital gains tax rate of 15 percent to the ordinary income rate of as much as 35 percent--would provide desperately needed new sources of revenue to pay for programs in education, healthcare and infrastructure. As Damon Silvers, associate counsel at the AFL-CIO put it, "The tax subsidy to the wealthiest Americans created by these lower rates on equity funds is a significant drain on the ability to do important things for the good of the country."

What's not unexpected is Bush Administration and GOP opposition--with dire warnings of how any tax increase would harm the economy and stifle risk-taking. One Republican lobbyist even had the audacity to object to "ending the beneficial tax treatment of risk versus the treatment of wages from work." But it's the lukewarm response to these measures by powerful Democrats like Senator Chuck Schumer and Christopher Dodd and Representative Rahm Emanuel-- who all happen to rely on Wall Street as a major source of political contributions--that's disturbing. As they deliberate about the future of tax justice in America, these three (and other fence-straddling Democratic lawmakers) may want to think hard about what the AFL's Silvers' pointed out in a recent New York Times article: "The top 25 individuals in the industry [private equity funds] got paid over $10 billion, taxed at a rate of 15 percent. Those 25 people got paid three times the amount that was paid to all 80,000 people who teach in the New York City schools, and they paid roughly one-half to one-third of taxes on a percentage basis."

At a moment when hedge funds have emerged as among the largest contributors to Democratic campaigns, let's hold Presidential candidates accountable for their stance on this tax-equity issue. Presidential candidate John Edwards, a former adviser to Fortress investment Group, a New York -based hedge fund that recently went public, has already taken a good step in denouncing "a tax code that lets hedge fund and private equity managers making hundreds of millions a year pay taxes at a lower rate than their secretaries is wrong."

Bush's Royal Edict: Don't Cooperate With Congress

President Bush has treated Congress with contempt for more than six years.

But the most regal executive to reign over the United States since King George III was deposed has never displayed that contempt so aggressively as he did Wednesday.

On the eve of former White House counsel Harriet Miers' scheduled testimony before the House Judiciary Committee, she was ordered by the president to defy the subpoena she had been issued by the committee.

The president's lawyers claimed that Miers has "absolute immunity from compelled congressional testimony" in regard to the investigation of the administration's politicization of federal investigations and prosecutions.

According to current White House counsel Fred Fielding, Miers does not need to cooperate with congressional inquiries into "matters occurring while she was a senior adviser to the president."

That was enough for the former counsel's lawyer, George T. Manning, to notify Judiciary Committee chair John Conyers, D-Mich., that Miers would refuse to appear at Thursday's session to answer questions about the role played by the White House in forcing the firings of eight U.S. Attorneys.

Unlike former White House political director Sara Taylor, who answered a subpoena to testify before the Senate Judiciary Committee Wednesday but refused to answer most questions, Miers will not offer even a bare minimum of respect for the system of checks and balances that gives Congress the authority to investigate wrongdoing in the White House.

"As a former public official and officer of the court, Ms. Miers should be especially aware of the need to respect legal process," complained Conyers.

The committee chair said he was, "extremely disappointed in the White House's direction to Ms. Miers that she not even show up to assert the privilege before the committee."

That disappointment is understandable.

But disappointment is not enough.

The administration's casual disregard for subpoenas issued by Congress demands a response.

Conyers has spoken of seeking Contempt of Congress citations against current and former administration aides who refuse cooperate with his committee.

It's time, not merely to defend the authority of the Congress but to reassert respect for the role of the Constitution in defining proper relations between the legislative and executive branches of the federal government.

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John Nichols' new book is THE GENIUS OF IMPEACHMENT: The Founders' Cure forRoyalism. Rolling Stone's Tim Dickinson hails it as a "nervy, acerbic, passionately argued history-cum-polemic [that] combines a rich examination of the parliamentary roots and past use ofthe 'heroic medicine' that is impeachment with a call for Democraticleaders to 'reclaim and reuse the most vital tool handed to us by thefounders for the defense of our most basic liberties.'"

Justice for Troy Davis-UPDATED

UPDATE: The state parole board Monday temporarily halted the execution of Troy Anthony Davis less than 24 hours before he was scheduled to die by lethal injection. The board issued a 90-day stay of execution after a nine-hour closed-door clemency hearing in which last-minute questions of his innocence were raised. The board did not release its vote.

Thanks to all of you who answered my appeal and contacted the board on Davis' behalf.

An order issued by the board granting the stay said "those representing Troy Anthony Davis have asserted that they can and will present live witnesses and other evidence to the members of the board to support their contention that there remains some doubt as to his guilt."

It also states that the board "will not allow an execution to proceed in this state unless and until its members are convinced that there is no doubt as to the guilt of the accused."

Davis' lawyers were elated that they will now have more time to make a case for his innocence.

"Of course we're disappointed that it wasn't full clemency, but I think the reaction of the board shows that there was, in fact, some doubt," said Danielle Garten, one of Davis' lawyers. "We're glad we were able to show that and to be the messengers of what Troy's story really is."

Stay tuned.


Troy Anthony Davis is currently scheduled to die by lethal injection on July 17. Davis has been on death row in Georgia for more than 15 years for the murder of Police Officer Mark Allen McPhail at a Burger King in Savannah; a murder he maintains he did not commit. The record of his case offers much credence for his contention.

As a comprehensive recent report by Amnesty International shows, no physical evidence against Davis was ever found and the weapon used in the crime was never located. The case against him consisted entirely of witness testimony which contained numerous inconsistencies even at the time of the trial. Since then, all but two of the state's non-police witnesses from the trial have recanted or contradicted their testimony. Many of these witnesses have stated in sworn affidavits that they were pressured or coerced by police into testifying or signing statements against Davis. One of the two witnesses who has not recanted his testimony is Sylvester "Red" Coles – the principle alternative suspect, according to the defense, against whom there is new evidence implicating him as the gunman. Nine individuals have signed affidavits implicating Sylvester Coles.

Moreover, as the Atlanta Constitution-Journal reported this week, "it appears that the quality of legal representation Davis received during his trial was, by his own lawyer's account, seriously deficient. While Davis' case proceeded through the courts, the budget of the Georgia Resource Center, which represented him, was dramatically cut. A lawyer from the Resource Center stated in an affidavit that 'We were simply trying to avert total disaster rather than provide any kind of active or effective representation.'"

If executed, Davis will join 40 other men who have been executed in Georgia since the US Supreme Court reinstated the death penalty in 1973. Given significant uncertainty about some of the forty's guilt, experts from Georgia's legal community recently produced a report, sponsored by the American Bar Association, recommending that Georgia impose a moratorium on executions because the state could not ensure fairness and accuracy in every capital case. Among other things, it cited racial disparity in capital sentencing, with those convicted of killing whites 4.5 times more likely to be sentenced to death as those convicted of killing blacks. In this case, the officer killed was white; Davis is black.

Last Monday, lawyers for Davis went before the US Supreme Court in a last-ditch effort to convene a retrial, but the Roberts court denied their plea and upheld Davis' sentence, ending a 12-year attempt to appeal the case and setting the final execution process in motion.

Read more about this travesty of justice, click here to send an urgent message to the Georgia State Board of Pardons & Paroles urging a stay of Davis's execution and and write your local newspaper asking them to report on this case.

Taylor Testifies—Sort Of

The news was that there was no news.

She showed up and testified--but in the end former White House political director Sara Taylor didn't--or couldn't--say much.

Again and again at a hearing of the Senator Judiciary Committee, the underling of Karl Rove invoked the order of executive privilege President Bush mandated on Monday to prevent his aides from testifying about the dismissal of nine US Attorneys. But in between her frequent bouts of non-answer, Taylor did manage to include a plug for her boss.

Taylor told Chairman Patrick Leahy that she never discussed firing the attorneys with the President. "I don't believe the White House did anything wrong," she stated.

If there was no foul play, Senators wondered, then why couldn't she discuss what went on at her old employ?

Leahy blasted the President's executive privilege intervention as "an unprecedented blanket assertion" and kept asking "What is it that the White House is trying to hide?"

President Bush announced this afternoon that Harriet Miers will not testify on Thursday before Congress as scheduled. Senator Arlen Specter, the ranking Republican on the Committee and the only GOP Senator to originally show up, even suggested that Taylor and Miers could face criminal contempt charges for following Bush's order "not to testify concerning White House communications whether internal or external."

The 32-year-old Taylor, who worked with Rove on a daily basis for four years, did an expert job of cherrypicking. She spent three hours of testimony answering almost any question that did not implicate the White House in "Attorneygate" and invoked executive privilege when Senators pressed for specifics about the hiring and firing of federal prosecutors. She admitted toward the end of her hearing that while she tried to be consistent in honoring the President's executive privilege, "perhaps I have not done a great job."

In fairness, Taylor was placed in an untenable spot by the President. Answer questions and violate a however misguided presidential order. Or refuse to talk and anger Senators hungry to get to the bottom of this convoluted story. Senators understood that she was yet another pawn in the Bush Administration's resistance to Congressional inquiry. "The White House has put you in a position of being a tight-rope walker," said New York Democrat Chuck Schumer. Illinois's Dick Durbin, the number two Democrat in the Senate, added, "Karl Rove should be sitting at that table, not you."

Reporting by Matthew Blake

Pax Pelosi

House Speaker Nancy Pelosi has demonstrated admirable shrewdness in the fight she provoked with her own Democrats over approving new trade agreements for George W. Bush. She backed off.

The conflict is not entirely settled yet, but Pelosi wisely decided to defuse the intense anger in the Democratic caucus rather than try to bull through it. In pursuit of unity, she has shown respect for the new folks elected last fall and other rank-and-file Democrats determined to challenge the free-trade status quo and to change it. That is good for them. And good for her.

The surest sign Pelosi is moving in the right direction are the hostile rebukes from the Wall Street Journal and Washington Post. "Trade Double-Cross," said the headline on the Journal's editorial. "House Democrats go protectionist." This is nonsense, but typical of the Journal's slanderous style. Pelosi is demeaned as a pawn of organized labor and lefty extremists. Makes you wonder if the doctrinaire right-wing Journal could get any worse with Rupert Murdoch as the owner.

This intramural conflict started in May when Pelosi, arm-in-arm with Ways and Means chair Charles Rangel, abruptly announced their "historic deal" with the Bush White House . Dems would approve new trade agreements with Peru and Panama that include much improved labor rights provisions and possibly two other agreements with Colombia and South Korea. The pro-business atmospherics suggested Pelosi might even be persuaded to renew "fast track" negotiating authority for this president .

Democrats were rightly alarmed. Doing a deal with Bush and the multinational lobby suggested Pelosi and senior colleagues were ignoring the rebellious content of last Fall's election and prepared to put the new voices in their place. At a time when Bush's base is imploding, it did not seem smart politics to splinter the Democratic party on such a pivotal matter.

The leadership was pursuing business-as-usual, Washington style, in the name of accomplishing something, however flawed. In fact, they were embracing the same failed model for trade agreements that produced horrendous losses of US manufacturing production and jobs during the last fifteen years. The model includes the scandalous special privileges for multinational capital and corporations, the so-called "investor-state" provisions that began with Bill Clinton's NAFTA.

Pelosi pulled back with a series of assurances. The Panama and Peru agreements need more work, she allowed, and will be postponed until the Fall. For different reasons, Colombia and South Korea were not going to get a vote (Colombia's government is associated with the paramilitary thugs who have murdered hundreds of labor leaders). "Fast track" is not going to get renewed--not for this president anyway.

The leaders left some important issues dangling, but Pelosi responded substantially to suggestions from AFL-CIO president John Sweeney and Leo Gerard, president of the steelworkers union, for how to avoid a bloody battle in which nobody wins but Republicans.

If they are wise, the party leaders will let the Peru-Panama agreements die quietly without a roll call. The economic stakes are trivial, but the principle is not. What is the point of giving George Bush a cheap victory when half or more of the Democratic caucus will likely vote against their own leaders? Not a good start for a party trying to reinvent itself and restore its reputation with the public.

A truce now leaves the substantial issues on the table for the real fight later. Democrats in Congress seem divided almost along generational lines. Those who endured all the hard years in the wilderness as the impotent minority naturally want to legislate now that they can. The newcomers who want big change are understandably suspicious of incremental measures that continue down the wrong road.

For Pelosi and other leaders, the choice is about more than emotional loyalties to the old guard. The new crowd represents the party's potential for real growth and a working majority. Lose them and you lose the future.

Key Republican Snowe Backs Withdrawal Plan

As the most sensible moderate member of the Senate Republican Caucus, Maine's Olympia Snowe should have been on board long ago for a strict timeline to bring the troops home from the senseless war in Iraq.Instead, for months, she played the current Republican game of complaining bitterly about the war while eschewing the tough votes to bring it to a conclusion. As recently as May, when Senator Russ Feingold, D-Wisconsin, and Senate Majority Leader Harry Reid, D-Nevada, were pushing the Senate to endorse a genuine exit strategy, Snowe joined centrist Senator Evan Bayh, D-Indiana, in proposing a murky plan that was designed to give the Iraq government more time to meet benchmarks before getting serious about a withdrawal strategy.

Now, however, as it becomes clear that benchmarks aren't being met and that President Bush's "surge" strategy is only getting more Americans and Iraqis killed, Snowe has finally come around to the place where she should have been all along.

With a Senate vote expected next week on a proposal by Democrats Carl Levin of Michigan and Jack Reed of Rhode Island to begin a troop withdrawal from Iraq within 120 days and to complete the extraction by next April, Snowe is signaling that she plans to vote with the vast majority of Senate Democrats in support of the plan.

"We … are not prepared to make an indefinite open-ended commitment to the Iraqis until they decide when they're going to make their political decisions," Snowe said at the opening of the Senate debate on the Levin-Reed amendment. "Our men and women are making the military sacrifice; they're not prepared to make the political sacrifice."

Despite personal lobbying yesterday from Secretary of State Condoleezza Rice, who urged Snowe to wait until September before rejecting Bush's approach policy, the senator says "the tide has turned."

Speaking of the Bush administration, which has generally had her support in key votes on the war, Snowe said "They obviously would prefer that we wait until September, but my view is that we should send a very strong message now."

Snowe's move is important.

While a number of key Republicans – including former Senate Relations Committee chair Richard Lugar of Indiana – have expressed dismay at the Bush administration's determination to maintain the failed occupation of Iraq, few of them have clearly signed on with the Levin-Reed plan.

Now that Snowe has done so, other Republicans who like to portray themselves as more centrist and sensible than their party's leadership – including Senators Gordon Smith of Oregon and Norm Coleman of Minnesota, both of whom are up for reelection in 2008 along with Snowe's Maine colleague Susan Collins – will be under significantly greater pressure to back the amendment.

So, too, will centrist Democrats, like Bayh, who have been cautious about getting too specific with a timeline.

Snowe's move matters a good deal – even if it did come a good deal too late.

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John Nichols' new book is THE GENIUS OF IMPEACHMENT: The Founders' Cure forRoyalism. Rolling Stone's Tim Dickinson hails it as a "nervy, acerbic, passionately argued history-cum-polemic [that] combines a rich examination of the parliamentary roots and past use ofthe 'heroic medicine' that is impeachment with a call for Democraticleaders to 'reclaim and reuse the most vital tool handed to us by thefounders for the defense of our most basic liberties.'"

Blame Canada

Blame Canada

The increasingly isolated President is under siege from allsides. From the right, Republican senators are jumping off hisIraqi bandwagon faster than Leo DiCaprio on the Titanic. From theleft, Democrats are trying to peer past his stonewall ofexecutive privilege.

Abroad, he faces an imploding Middle East. From the Far East,China's economic rise is challenging American political hegemony.He can't build a wall fast or tall enough to stop immigrationfrom the south. And from the north, there has arisen an assertiveand aggressive--wait for this--Canada.

Yes, Canada's Prime Minister Stephen Harper ordered six naval ships to defend the melting Northwest Passage from the UnitedStates, which claims the Arctic is international territory. Yousee, as global warming melts the icecaps it is revealing anattractive shipping route and unexplored resources, like fish,minerals, and yes oil.

"Canada has a choice when it comes to defending our sovereigntyover the Arctic," Harper says. "We either use it or lose it. Andmake no mistake, this government intends to use it."

And thus we have the prospect of a South Park parody come to life. Prepare your anti-war protest posters now: "No CanadianBlood For Oil, eh."