Wednesday, March 21, 2007

A Few Things to Keep in Mind About “Fire-gate” or “Dismissal-gate”

Apropos of my last posting, the President has launched a full throated defense of his people and has dispatched White House Counsel Fred Fielding to negotiate with the House and Senate over when, how, and even if, the aides to the President will testify or talk at all to Congress about their roles in the firing of 8 United States Attorneys. With my previous post on the legalities in mind, there are a lot of things that are going to be said in the next few days, and I want to try to set some of the rhetoric aside and deal with the precedent and history behind these types of “constitutional” controversies.

The first thing to do, if one really wants to understand what’s going on here, is put the partisan bickering aside. Yes, this is all political, but, in my opinion, it’s not partisan political, it’s institutional political – at least when we are talking about separation of powers related issues – there’s a difference. So, do me a favor when reading my post, forget that this is a GOP Bush White House v. a Democratic controlled Congress, and, if it helps pretend the shoe is on the other foot (which it was during Whitewater when similar issues were raised). This is about the powers of the President versus the power of Congress. Politics abound, but in a different way.

Second, let’s look to the text of the Constitution itself. What does it say about this particular “constitutional conflict?” Answer: ABSOLUTLY NOTHING. Essentially, the arguments break down like this: For the President, the issue is the sanctity of the White House, and a President’s ability to receive unfettered advice from his most senior and trusted advisors. The fear that everything uttered in the Oval Office being made the subject of a public Congressional hearing is a serious threat to how the Executive Branch functions. Remember, however, that the Constitution doesn’t actually textually provide for an “executive privilege,” but a qualified privilege does exist via the courts See, e.g., United States v. Nixon, 418 U.S. 683 (1974); In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997); Judicial Watch, Inc. v. Department of Justice, 365 F.3d 1108 (D.C. Cir. 2004). For Congress, the issue is its ability to garner and receive the information that it needs from the rest of the government to properly legislate and exercise its significant constitutional responsibilities, which are textually committed to it by Article I, sec.8. To regulate any area, and/or to exercise its “power of the purse,” Congress needs information, and must be able to receive what it needs from whatever the source. Unlike the President and the Courts, Congress does have a “legislative privilege” Constitutionally committed to it by the text. It’s called the Speech or Debate Clause, Art. 1, sec. 6, cl. 1, and it has been interpreted by the Supreme Court and lower federal courts as permitting the Congress to conduct wide-ranging inquires and investigations, as well as issue subpoenas and other compulsory process without interference from the other branches of government. See, e.g., McGrain v. Daugherty, 273 U.S. 135, 177-78 (1927); Watkins v. United States, 354 U.S. 178 (1957); Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975).

Given there are two equally strong, arguably constitutionally based privileges at stake here, the natural inclination of people is going to be to look to the Courts to resolve the conflict. This would be wrong. As I (and Paul) have suggested numerous times, the Court’s are not the final arbiter of constitutional interpretation. More to the point, the Courts have been loathe to interfere in congressional executive disputes of this type. There are actually two very good, relatively recent examples of the courts doing precisely this. The first occurred in the late 1970s when the Congress was investigating the first executive use of “warrantless wiretaps” that would eventually lead to the Foreign Intelligence Surveillance Act that is the subject of many controversies today. Then, as now, the Congress wanted information from the FBI and the telephone companies, specifically AT&T, about what information the FBI was seeking and why. Eventually AT&T was subpoenaed, and the Justice Department sought an injunction in federal court preventing their compliance. The DC Circuit never actually decided any the constitutional issues presented on their merits. Rather, they elected to require the parties to negotiate and ultimately placed the district court in an arbiters like position to settle minor disputes with respect to specific documents. See United States v. AT&T, 551 F.2d 384, 385 (D.C. Cir. 1976) [AT&T I]; United States v. AT&T, 567 F.2d 121, 124-25 (D.C. Cir. 1977) [AT&T II]. More recently, in 1983, when the Congress issued an “contempt of Congress citation,” pursuant to 2 USC 192, against EPA Administrator Anne Burford for failure to comply with a subpoena for open case files related to enforcement of the “Superfund” laws. The President claimed executive privilege over the documents, and the Justice Department attempted to get a court to enjoin and dismiss the congressional contempt. The district court immediately dismissed the suit, essentially on political question grounds. United States v. House of Representatives, 556 F.Supp. 150 (D.D.C. 1983). A settlement to the dispute was ultimately reached with the President turning over all of the requested documents to the Congress. I could continue on about contempt, but needless to say the Courts don’t have to be involved there either. Congress has prosecuted people for contempt before, and the Supreme Court has upheld it, see Anderson v. Dunn, 19 U.S. 204 (1821), but has not done so since 1935, preferring instead to use the criminal statute noted above.

As I said, this is a political dispute, yes, but it is not a partisan one. Depending on your opinion about the institutional issues involved, there may be a reason to take one side or the other here. Bottom line is that this type of thing isn’t new by any stretch. I could cite plenty more examples, except that almost all of them favor Congress here. People don’t like secrets, especially after so much mishandling by the AG’s office. As I said before, the White House and the DOJ haven’t done anything illegal or unconstitutional here, but the perception is terrible and the Congress appears determined to find out what happened. Is there an element of show trial and witch hunting involved, yes, without a doubt. But there is a point to it as well. Congress has lost, mostly through acquiescence, many of its prerogatives in the last 6 years. Yes, 9/11 changed things and strengthened the President tremendously, but the Constitution hasn’t changed, and this issue isn’t about 9/11. Congress still retains a tremendous amount of power here, and if it chooses to exercise it here, history and precedent is definitely on its side. The politics, pure politics, will determine the outcome here. Look for lots of partisan wrangling and rhetoric from all sides. Long story short: Put on your muckraking shoes, it’s going to get messy.


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