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The American Prospect

Defending the Constitution After Gonzales

Adele M. Stan

Attorney General Alberto Gonzales was deeply involved in both of the scandals that may yet yield contempt of Congress citation for members of the executive branch. But will Congress step up to defend the Constitution and issue those citations?

Look at any of the myriad ways in which the Bush Administration has compromised, trampled on and otherwise twisted the text of the U.S. Constitution, and you will find the fingerprints of Attorney General Alberto Gonzales somewhere in the margins. There's Fredo (as his commander-in-chief calls Gonzales), who was then White House counsel, making the case for torture and trying to strong-arm his incapacitated predecessor at the Justice Department into signing off, from his hospital bed, on a plan for spying on Americans without obtaining search warrants. And later, after replacing John Ashcroft as attorney general, we find Fredo firing U.S. attorneys and fibbing to Congress about the reasons that he did so.Despite a litany of iniquities, we're all quite surprised by Gonzales's sudden departure. By "we" I mean both political journalists and Hill staffers. As one well-placed staffer explained it to me, Gonzales was so completely discredited that there was really nothing you could do to damage him further. In that sense, he was a poetically perfect representative of justice for an administration that uses the most outrageous and infantile rationales for its own misdeeds. From members of the Bush administration, every answer to a question beginning with the word "why" amounts to one refrain: "Because we said so."

What is truly surprising about Gonzales's resignation is its implication that congressional scrutiny of his role in some of the executive branch's most unsavory actions could somehow have consequences for the administration as a whole -- as if Congress actually had its act together in the oversight department. I want so badly to embrace this idea, but I dare not, for fear of yet another fallen hope.

For instance, I would like to think that Gonzales had to get out of Dodge because Congress is about to serve members of the executive branch with citations for contempt of Congress, which the Justice Department is customarily tasked with enforcing. Gonzales would be too transparent a hack to have at the helm of a department instructed by the president not to enforce a congressional subpoena. Given the position the Bush administration has taken on executive privilege, it would have been left to Gonzales -- already completely discredited as anything other than a partisan hack -- to refuse to assign a prosecutor to enforce any such citations.

Indeed, the Judiciary Committees of both chambers of Congress have made significant gestures that hold the threat of contempt citations. However, it remains to be see whether those citations will be issued. In the House, it appears that Speaker Nancy Pelosi may not have the heart for this fight, while in the Senate, a razor-thin Democratic majority and more complicated rules may strew one obstacle too many in the path of Democrats who seek to charge the executive branch for withholding subpoenaed documents.

Before House members lit out for their districts in July, the House Judiciary Committee voted to bring to the floor a vote on contempt citations for White House Chief of Staff Joshua Bolten and former White House Counsel Harriet Miers, both of whom refused to testify on the roles they played in the controversial firing of nine U.S. attorneys. The House committee, led by Michigan Democrat report on July 24 that asserts political motivations for the firings, in several instances for attorneys who refused to pursue unsupported voter fraud cases against Democrats or, as in the case of California District Attorney Carol Lam, were doing too good a job going after corrupt Republicans.

Now the Senate has its own contempt of Congress drama bubbling up, thanks to the administration's contemptible response (see the letter from White House Counsel Fred Fielding) to subpoenas issued by the Senate Judiciary Committee for information on the domestic spying program conducted by the National Security Agency (NSA) at the direction of the president, which was executed without the court warrants required by the Foreign Intelligence Security Act (FISA).

In both cases, the president has defied the subpoenas under the claim of "executive privilege," a phrase found nowhere in the U.S. Constitution. While the idea of executive privilege has been upheld, in a limited way, by the courts, arguably no president prior to George W. Bush has ever made such sweeping use of it while also claiming the right to withhold the prosecutorial resources of the federal government from the people's representatives.

The Bush administration, in declaring its intention to forbid the Justice Department to appoint a prosecutor to enforce a contempt citation issued by Congress, echoes a 1984 Reagan administration document -- but not even Reagan declared the right to transgress treaties to which the U.S. was party because it deemed them "quaint." (That's how then-White House counsel Alberto Gonzales, defending the administration's interrogation methods, described anti-torture provisions of the Geneva Conventions.)

Gonzales was deeply involved in both of the situations that may yet yield contempt of Congress citations for members of the executive branch. In testimony on both matters, Gonzales gave pitiful performances. Appearing before the Senate Judiciary Committee in April, Gonzales said he had "no recollection" of a meeting on Nov. 27, 2006 at which the U.S. attorney firings were discussed.

Regarding the matter of the NSA domestic spying program, Gonzales had quite a different recollection of his visit to the hospital sickbed of then-Attorney General John Ashcroft than did others who attended with him. The apparent purpose of Gonzales's visit was to strong-arm Ashcroft, feeble in recovery from abdominal surgery, into signing off on a program that Ashcroft's deputy, James Comey, and FBI Director Robert Mueller thought to be illegal. In Mueller's July 26 testimony, he confirmed that he dispatched an FBI detail to ensure that Comey would not be banished from Ashcroft's hospital room during Gonzales's visit.

The testimony led four Democratic senators, Charles Schumer (N.Y.), Dianne Feinstein (Calif.), Sheldon Whitehouse (R.I.) and Russell Feingold (Wis.) to request, as a separate action, the appointment of a special prosecutor to investigate whether Gonzales sought to circumvent the law to approve the NSA spying program, and whether he perjured himself before Congress. As the subject of the investigation, Gonzales was recused from the case, so the senators' letter was addressed to Solicitor General Paul Clement, who will now take Gonzales's place as acting attorney general, at least until a nominee for attorney general is put forward.

Yesterday, Schumer promised that investigations involving Gonzales will continue despite the attorney general's resignation, which will be effective September 17. But unless committees in the House and Senate are able to make good on their threats of contempt of Congress citations that would force witnesses from the White House to testify, the investigations may amount to little. The administration will just stonewall.

And it seems doubtful that Clement, if he follows the line of reasoning of Supreme Court Justice Antonin Scalia, for whom he clerked, would appoint a special prosecutor. (Scalia's dislike of special prosecutors was made plain by his dissent in a 1988 case that tested the independent prosecutor law, which Congress later failed to renew in 1999.)

Whether Clement shares the administration's expansive notion of executive privilege -- the idea that the administration need turn over to Congress only those subpoenaed documents it cares to turn over -- remains to be seen. Yet the will to pursue contempt citations among the Democrats in Congress remains equally uncertain. Upon their return to Washington after the summer recess, House leaders would have to schedule a floor vote on the measure, passed the House Committee on the Judiciary last month, that would cite Miers and Bolten for contempt.

When asked if he expected such a vote to be scheduled, Drew Hammill, press secretary to House Speaker Nancy Pelosi (Calif.), hedged a bit, noting that September is looking quite busy. First of all, he explained, "We need to keep the government going." The appropriations process isn't nearly finished, he said, "and the end of the fiscal year is closing in." Add to that the Petraeus report and action yet to be taken on the S-CHIP health insurance coverage for children, and the calendar's looking pretty crammed.

In the Senate last week, Judiciary Committee Chairman Patrick Leahy (Vt.) declared the administration in contempt of Congress for its defiance of his committee's subpoena for documents related to the NSA program, but the committee has yet to take formal action on any contempt measure. Leahy's spokesperson, David Carle, says a decision will be made after he confers with committee members upon their return. In that case, it appears that any contempt citations, if approved, would target members of both the president and vice president's staffs.

Since Gonzales is not among those withholding the documents requested by the committee, no contempt citation would be issued to him. However, any documents previously withheld from Congress but turned over due to a contempt citation may shed further light on Gonzales's role in the NSA spy program. Likewise, truthful testimony from Bolten or Miers could reveal new details of Gonzales's involvement in the firing of the nine U.S. attorneys.

If contempt citations are indeed approved by Congress, Gonzales's replacement, however, would be left to either do the administration's bidding in refusing to allow the Justice Department to prosecute the citations in federal court, or to defy the president and carry out the citations. The Bush administration has said it will forbid the Justice Department to enforce any such citation. Will Clement, in defense of his reputation, become the Bush administration's Elliot Richardson?

Neither the speaker of the House nor the Senate majority leader today find themselves in enviable positions, given the political pressures they feel from both the Democratic base and the American people at large. The abysmal approval ratings suffered by today's Congress reflect the disappointment of those who voted in a new group of legislators in the hope of making change. The Democrats have a choice to make: they can be the party that almost got health insurance for children before a presidential veto or the party that got us out of Iraq six months sooner than we would have gone anyway. Or they can be the party that undid the misdeeds of Alberto Gonzales and his White House puppet-masters, and saved the Constitution. But they'll need to act fast, because it's almost gone. Adele M. Stan writes regularly about religion and politics for TAP Online. She has also written on religion for Ms., Mother Jones, and The New Republic, and is the author of the blog AddieStan.

© 2007 The American Prospect

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