by John Dean

President George Bush has issued an instruction to his former White House counsel Harriet Miers to defy the House Judiciary Committee's subpoena. The Committee had sought to ask her about her role - and that of others in the White House - in firing a covey of United States Attorneys who were apparently not toeing the political line. Bush's instruction sent a very clear signal: As I wrote earlier, and as has been clear from the outset, he is looking for a fight.

By not responding to the subpoena, the President and Ms. Miers all but invited the House Judiciary Committee and, in turn, the House of Representatives to vote to deem her in contempt of Congress. It was a defiant, in-your-face insult to Congress. No president would do this unless he was quite confident of the outcome. Clearly, Bush's White House and Justice Department lawyers believe that the solidly conservative federal judiciary will grant them a favorable ruling, and that, in the process, they will greatly weaken congressional oversight powers, to the advantage of the White House.

In short, the Bush White House is not bluffing with this act of defiance. Rather, the White House truly wants to test, and attempt to expand, presidential power. Bush's White House is ready, willing, and able to play hardball. Indeed, the White House may actually be trying to bait the House Judiciary Committee and the House of Representatives into voting to deem Ms. Miers in contempt of congress.

The Initial Consequences of Harriet Miers's "No Show"

It was on Thursday, July 12, that Miers was asked to testify before the subcommittee investigating the removal of U.S. Attorneys by the Bush Administration, and did not show. That same day, the subcommittee's Chair, Linda Sanchez (D.CA), undertook the preliminary steps necessary to declare Miers in contempt. By a party line vote of seven Democrats to five Republicans, the subcommittee ruled that there was no legal justification for Miers's failing to appear pursuant to the subpoena.

Notwithstanding this blatant affront to the House Judiciary Committee, Republicans members played their familiar role -- allowing party affiliation to trump institutional responsibility, just as it had when they controlled Congress. Republicans made lame (if not ridiculous) excuses for the Bush Administration's defiance, and proved themselves more than willing to let the President insult the subcommittee by instructing Miers to not show up. (The transcript of the proceeding is not available as I write but the information available from Firedoglake and Talking Points Memo indicates that Republicans embarrassed themselves as badly as did former White House aide Sara Taylor -- who kept telling the Senate Judiciary Committee, when she did honor a similar subpoena, that she had taken an oath to uphold the President, rather than the Constitution. House Republicans appear to have taken the same oath.)

As a result of Miers's "no show," the full House Judiciary Committee will no doubt support the subcommittee, and vote to deem Miers in contempt. One can only hope - but probably this hope is in vain -- that Republicans may realize this is not a partisan issue, but an institutional matter, and thus will either abstain or vote to support the dignity of the committee on which they serve. Republicans should remember that they will one day be back in control, and may then be confronted by a Democratic president defying their subpoenas - and relying on this very precedent to do so. Realistically, however, there is zero chance that Republicans will place their constitutional interest ahead of their partisan interests.

The House Judiciary Committee itself cannot hold Miers in contempt; rather, the Committee can only report its request that this be done to the full House, which must then vote to deem her in contempt. Before the full House turns to this question, however, its members should not only carefully consider what they are doing, but also consider what they are not doing. At this stage, it is unclear how far this conflict will progress. The White House appears to have given this matter much more thought than Congressional leaders have thus far.

Long ago, Congress should have oiled up its most powerful tool to require Executive cooperation. No one who follows these matters is surprised that Bush is again pushing the envelope of presidential powers. But it continues to mystify me why Congress does not get its act together, and remind the White House that they are constitutional co-equals.

Column continues below ↓ The Emboldened Position of the Bush White House, Backed by Its Attorneys

Keep in mind that, as I have previously written, conservatives now believe that a strong president is one who protects his prerogatives. This point of view counsels, too, that a president need not worry at all about low approval ratings; indeed, high approval ratings would signal a weak president, who had not used his or her powers effectively. In short, to Republicans, the fact that Bush's public support is sub-par means nothing with respect to the White House's fight with Congress.

Moreover, the Bush White House clearly believes the law is on its side. The Los Angeles Times reports that the Justice Department has provided the White House with a "broadly worded legal opinion" advising that "senior White House officials" can "ignore subpoenas from Congress to testify about the U.S. attorneys affair." This "three-page opinion," the L.A. Times says, "raises questions about whether the Justice Department would prosecute senior administration officials if Congress voted to hold them in contempt." The L.A. Times's article also notes that, under the law, the U.S. Attorney for the District of Columba decides whether or not to pursue such cases when they are referred by the House or Senate for prosecution.

Needless to say, this is an extraordinary legal opinion, but not a surprising one. It is consistent with Bush's embrace of the "unitary executive theory."

Could this opinion be endorsed by a court if challenged? House Judiciary Committee chairman John Conyers - who was surprised that Miers was not going to appear - told the L.A. Times that his committee was "aware of absolutely no court decision that supports the notion that a former White House official has the option of refusing to even appear in response to a Congressional subpoena." Chairman Conyers is correct. There is no such law or precedent - yet.

I have not seen the Justice Department's memorandum, but the only basis they can possibly have to assure officials involved is that they enjoy, in the words of White House counsel Fred Fielding, "absolute immunity from compelled Congressional testimony" must be advice from the Department of Justice to this effect. The Justice Department, then, must be assuring the White House that it will make this, in effect, the law, by refusing to prosecute such defiant officials under the criminal contempt statute if Congress refers the matter to them.

This is a very aggressive position. While it does not reflect the current state of the law, given the pro-presidential bias among so many of the conservative jurists who now dominate the federal judiciary, and particularly the Supreme Court, Bush may well succeed in defending this position if this matter goes to court.

Congress Needs To Protect Its Powers: Only One Way It Can Do So

Marty Lederman has prepared a nice overview analysis of what happens when officials defy a congressional subpoena.

Let's suppose that the House votes Miers in contempt, and the matter is sent to the U.S. Attorney. One can expect that no prosecution will be brought. During the Reagan years, the Justice Department ruled that even though the referral statute makes it the "duty" of the U.S. Attorney to take the matter to the grand jury, Congress cannot enforce that duty on the Executive Branch if the Executive Branch refuses to honor it. As noted, it would appear that under the most recent Justice memo on the subject, the White House will not permit the U.S. Attorney to prosecute the matter, and Congress has no power to overrule that by forcing the U.S. Attorney to go forward.

If the U.S. Attorney did go forward could criminal sanctions be imposed on a witness such as Harriet Miers who is (albeit willingly) following the orders of the president by refusing to honor a congressional subpoena? The issue raises serious Constitutional questions that have not been resolved by the Supreme Court. If the issue did reach the Court, how would the Court rule? Given its current conservative majority, the Justice Department and White House may be right if they have concluded that they can win before the Court, convincing at least five Justices to declare such criminal sanctions unconstitutional.

If the House votes Miers in contempt, they can also institute a civil legal action by seeking declaratory judgment from a federal court to compel enforcement of their subpoena. However, there is a growing body of law, coming from conservative jurists, calling for conflicts like this between the executive and legislative branch to be considered "political questions" that are improper for the federal courts to resolve. Thus, it seems likely that the Court might - citing the political-question doctrine - decline to take jurisdiction over this clash, thereby leaving the White House's status quo untouched. For the Bush Administration, the worse case scenario, as Lederman suggests, is simply that the courts will seek to force a political settlement.

Finally, if Miers is found in contempt, the House itself can take action against her at the bar of the House. (The Senate can similarly hold such proceedings.) Congress has the power to prosecute contumacious witnesses to require them to comply, and the Supreme Court has repeatedly reaffirmed this power. For example, in 1987, in Young v. U.S., Justice Antonin Scalia recognized "the narrow principle of necessity" or "self-defense" of the Congress in protecting its institutional prerogatives. Scalia said "the Legislative, Executive, and Judicial Branches must each possess those powers necessary to protect the functioning of its own processes, although those implicit powers may take a form that appears to be nonlegislative, nonexecutive, or nonjudicial, respectively."

When all is said and done the only way Congress can protect its prerogatives is to undertake its own contempt proceedings. The parliamentary precedents of the House provide such procedures, by which Congress can effectively protect itself. There is no shortage of past instances where the Congress has held such trials. Readers may want to consult, for example, Hinds' Precedents and Canon's Precedents. Unfortunately, however, this machinery has become a bit rusty, for these procedures have not been used since 1934.

Congress Must Avail Itself of Traditional Procedures to Compel Testimony and/or Punish Contempt

Given the clear attitude of conservative presidents, who are doing all within their power to make Congress irrelevant, Congress should turn to these underemployed precedents and put them back to work. The House and Senate Judiciary Committees should take the lead in reviving these procedures, and the Democrats' leadership should announce that they are embracing them.

If they do not, Fred Fielding has it right: Officials are absolutely immune from compelled Congressional testimony. Bush can simply tell Congress to stop sending subpoenas to his appointees. However, if Congress does engage in a little self-help at this crucial juncture, it can be sure that not only Harriet Miers, but also George Bush, will be forced to pay attention to congressional subpoenas - for the bottom line is that Congress will not need the cooperation of the other branches to enable it to conduct proper oversight.

John W. Dean, a FindLaw columnist, is a former counsel to the president.
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