Author & Speaker

Slow-Motion Showdown

Has Congress forgotten how to stick up for itself?
The face-off over the firing of United States Attorneys in 2006 was explosive at first. Was the Bush Administration injecting crude political criteria into law enforcement? High-level officials, including Attorney General Alberto Gonzales, resigned in the blowback.
Sensing that the trail of wrongdoing led to the White House, Congress held hearings that embarrassed the Administration. Hoping for more, Congress subpoenaed documents from presidential chief of staff Joshua Bolten and former presidential counsel Harriett Miers. That’s when the slows set in.
vert.bolten.file.gi.jpg
White House Chief of Staff, and defendant, Joshua Bolten
The White House responded to the subpoena with an inky cloud of executive privilege and no documents.
Months later, the House of Representatives voted contempt-of-Congress citations against Bolten and Miers, but Attorney General Michael Mukasey refused to empanel a grand jury to explore criminal charges against them.
Two weeks ago the House Judiciary Committee has sued Bolten and Miers. The contest promises months of legal briefing, a taste of document discovery, oral arguments, and appeals. You can read the Complaint for yourself at http://judiciary.house.gov/Media/PDFS/ContemptComplaint080310.pdf
The case was assigned to Judge John Bates, who used to work in the U.S. Attorney’s Office for the District of Columbia, where one of his responsibilities was defending officials against cases like these. He was always a pretty straight lawyer, so that shouldn’t make a huge difference.
After the requisite briefing and sparring, Judge Bates is likely to proclaim that this is exactly the sort of political question that courts should not decide.
The White House could hardly ask for a better strategy from Congress.
It wasn’t always like this! There used to walk upon the earth congressmen who resented ill-treatment, and who were not afraid to take a stand. In fact, congressman who preferred to take a stand, even when they weren’t exactly sure what was at stake.
Though constitutional collisions should not be the subject of precipitate action, the flaccid quality of this showdown leaves one pining for the days when Congress took no guff from anyone. Because I’m working on a book about the impeachment trial of Andrew Johnson, I immediately think of the extraordinary detention of Charles Woolley by the House of Representatives, but it turns out that was far from the only time when Congress got up on its hind legs.
On at least four occasions, Congress has taken it upon itself to jail contumacious witnesses. (Having a reason to use the term “contumacious” in a sentence is one of the furtive pleasures of litigation, but I digress.) Details next time.