“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.
John Nichols’ new book is