March 20, 2007

Imperial Congress Summons Its Subjects

Hatched by Dafydd

Alone among all the issues that divide Congress, there is one that unites them all -- Republican and Democrat, Right and Left, conservative and liberal, good hair and bad hair: They uniformly agree that Congress should be the preeminent branch of government, and the other two branches mere appendages whose only function is to implement the decrees from the Capitol Dome... and be quick about it!

Accordingly, Congress demands that close advisors to President George W. Bush scurry over and take their seats for the "show trials" to come:

Mr. Bush reiterated his support for his embattled attorney general, Alberto R. Gonzales, and said Mr. Gonzales would testify before the appropriate legislative committees. But Mr. Bush said he would only allow close White House aides to be interviewed privately by the lawmakers rather than be placed under oath.

“We will not go along with a partisan fishing expedition aimed at honorable public servants,” Mr. Bush said, vowing to fight any attempt by Congress to subpoena his top political adviser, Karl Rove; the former White House counsel Harriet E. Miers and others.

“Initial response by Democrats, unfortunately, shows some appear more interested in scoring political points than in learning the facts,” Mr. Bush said. “It will be regrettable if they choose to head down the partisan road of issuing subpoenas and demanding show trials when I have agreed to make key White House officials and documents available.”

Bush's use of the Stalinist-era term "show trials" is both heartening and illuminating. The key distinction between a "show trial" and a real trial is that in the former, guilt is assumed; the only purpose of the show trial is to humiliate and beat down the supposed "defendant" (actually, the victim of the State) and ideally force a public confession out of him.

After which, he is taken away and shot.

This pretty much describes the Democrats' intentions perfectly, except that shooting is replaced by forced resignation and being "frog-marched out of the White House," as Lyin' Joe Wilson so suavely put it. Thus, Bush enunciated the perfectly correct term.

We've all heard the phrase "the imperial presidency;" I believe it arose during the presidency of Richard Nixon, either coined or at least popularized by ultra-liberal historian Arthur M. Schlesinger, Jr., and has been routinely flung against every Republican administration ever since (similar to what monkey tribes do to each other). By now, its use induces an immediate gag-reflex and symptoms of mal de mer.

But what has in fact happened during this period was the rise of the imperial Congress; House and Senate have taken on all the trappings of the old British House of Lords:

  • Relection rate is so high that a huge percentage of members may as well be called Senator for Life So-and-So, or Representative for Life Thingumy. Congressional office has become a life peerage, and sometimes even passed to one's own issue or brethren -- the Kennedy seat, for example, or the Murkowski, Gore, and Chafee seats.
  • Congressional staffs tend to be loyal to individual, powerful patrons within the Congress, rather than to the people that Congress supposedly represents... Congressional aides are actually courtiers.
  • Congress has as many or more "advisory bodies" -- blue-ribbon panels, caucuses, and of course the all-powerful committees themselves -- than the administration.
  • More and more, Congressmen tend to see themselves as above the ordinary laws; they routinely exempt members from the legislation that governs the rest of us, privileging themselves beyond lesser mortals ("privilege," from the Latin privilegium, privus plus leg- : a "private law" for one person or a group of people). And they certainly refuse to answer to the president in any way; in fact, it aggravates them that they must submit their legislation to him for approval or veto.

Today, Congress wants to haul Karl Rove and Harriet Miers (plus Does 1-99, to be named later) before an open congressional committee, with the cameras rolling, and embark upon a multi-day fishing expedition... hoping to extract a "confession" to any of a number of supposed crimes the Democrats imagine permeate the inner circle of the Bush administration. Failing of that, they will simply throw so many accusations and spitballs at Rove that it will seem as if he must be guilty of something... "where there's smoke, there's fire!"

Of course, sometimes where there's smoke, there's nothing but a giant smoke screen. But you can fool some of the people all of the time, and all of the people some of the time -- and that's enough for a healthy percentage of the vote.

So imagine this thought experiment: Suppose that Attorney General Alberto Gonzales subpoenaed Sens. Patrick Leahy (D-VT, 95%), Chuck Schumer (D-NYC, 100%), Dianne Feinstein (D-San Francisco, 90%), and Majority Leader Harry Reid (D-Caesar's Palace, 90%); followed by Reps. John Murtha (D-PA, 65%), Henry Waxman (D-CA, 95%), and Squeaker of the House Nancy Pelosi (D-Haight-Ashbury, 95%). They're each hauled into an auditorium in the bowels of the Justice Department building, where about 150 print and television reporters await.

JD lawyers administer the oath to each member of Congress separately, then commence grilling them on the inner discussions within committees, caucuses, and even private conversations between senators, representatives, and their aides. Those aides have already been subpoened and extensively questioned; so if a member says anything that differs from what an aide said, the member is threatened with a perjury prosecution.

Would Congress put up with this? Would the courts allow it? I certainly hope not in both cases. But if we rightly recognize that the Executive branch cannot simply force members of the Legislative branch to testify under oath about their private advice, criticisms, and discussions with other members of their branch -- how the heck can the Legislative do exactly that to members of the Executive -- a supposedly co-equal branch of government?

The Democrats, however, are immune to shame and are not backing down:

The current White House counsel, Fred Fielding, offered this afternoon to make Mr. Rove and Mr. Miers available for private interviews -- but not sworn testimony -- before Congressional investigators.

But Democratic leaders immediately turned down the offer, demanding that President Bush’s aides testify under oath. That set the stage for a major political fight and perhaps a court showdown over the rightful powers of the executive branch and those of a Congress now controlled by Democrats.

It's quite clear that this is not an attempt to find out whether the eight U.S. Attorneys were fired (rather, did not have their contracts renewed) for legitimate reasons or in order to obstruct justice; they could most effectively find that out by private conversations. Rather, the Democrats are hot for some Testimony Theater!

(Say... do you think they might have a partisan political motivation for hauling Karl Rove in front of the TV cameras and badgering him under oath?)

I have no idea how the Supreme Court will ultimately rule on this... but I predict it will have to, because the Democrats who run the Judiciary Committee (including Schumer, Feinstein, and Chairman Leahy) are assuredly going to issue subpoenas -- and the president is just as adamant that he will not allow Rove, Miers, Deputy White House Counsel, William K. Kelley, Special Assistant to the Office of Political Affairs J.Scott Jennings, or any other close aide to testify under oath, where they can be asked anything at all, and in open session... completely obliterating the ability of the president to get candid advice and possibly even endangering national security by straying into discussions of FBI intelligence gathering and NSA surveillance.

If he did, Bush would not just be ceding the right to the 110th Congress; he would be throwing it away for all future presidents versus all future Congresses.

But heck, what's jettisoning a couple of hundred years of traditional governance and crippling the presidency in perpetuity, as compared to the opportunity of possibly indicting Karl Rove? We must keep things in perspective!

In the slither-on, a few more quotations from Democrats, who clearly have confused the Capitol building with Versailles and believe that senatorial blood runs as blue as that of Louis the XIV...

Mr. Fielding proposed that Mr. Rove and Ms. Miers be interviewed by members of the Senate and House judiciary committees at the same time, and that the interviews be limited to the events surrounding the dismissal of the federal prosecutors.

Mr. Fielding told the senators and representatives that he had been working for days “to accommodate your interests, while at the same time respecting the constitutional prerogatives of the presidency.”

Democrats angrily rejected Mr. Fielding’s position. “After telling a bunch of different stories about why they fired the U.S. attorneys, the Bush administration is not entitled to the benefit of the doubt,” said Senator Harry Reid of Nevada, the majority leader. “Congress and the American people deserve a straight answer. If Karl Rove plans to tell the truth, he has nothing to fear from being under oath like any other witness.”

Senator Patrick J. Leahy, the Vermont Democrat who heads the Senate Judiciary Committee, was just as emphatic. “I was glad to meet Mr. Fielding, and I welcome the fact that these issues have his full attention,” Mr. Leahy said. “I don’t accept his offer. It is not constructive and it is not helpful to be telling the Senate how to do our investigation, or to prejudge its outcome.”


“Testimony should be on the record and under oath,” Mr. Leahy said, repeating a demand that he first made on network television over the weekend. “That’s the formula for true accountability....”


Senator Charles E. Schumer, Democrat of New York and a member of the Senate Judiciary Committee, also reacted coldly to the White House offer. Mr. Schumer said Mr. Fielding was proposing in effect that Mr. Rove and Ms. Miers be available for “conversations” with lawmakers.

“That’s fine,” Mr. Schumer said. “Let’s have a conversation under oath, with a transcript.” [A transcript is essential for subsequently demanding a special prosecutor to go after Rove for perjury... whenever his answers don't match Democrats' expectations.]

Mr. Leahy has already said that his committee would vote Thursday on whether to subpoena Mr. Rove and Ms. Miers, as well as William K. Kelley, the deputy White House counsel.

“I do not believe in this ‘We’ll have a private briefing for you where we’ll tell you everything,’ and they don’t,” Mr. Leahy said Sunday on “This Week” on ABC. “I want testimony under oath. I am sick and tired of getting half-truths on this.”

I'm not a sack of oats... I'm the king! I want my noodles, and I want them now.

Hatched by Dafydd on this day, March 20, 2007, at the time of 7:23 PM

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» More on the US Attorney Psuedo-Scandal from The Crimson Blog
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Tracked on March 20, 2007 10:05 PM

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Tracked on March 21, 2007 11:08 AM


The following hissed in response by: MJS

Great stuff, of the more more incisive posts I've seen yet on the blogosphere re. the topic. And posts have certainly not been lacking.

The above hissed in response by: MJS [TypeKey Profile Page] at March 21, 2007 3:25 AM

The following hissed in response by: Jay Tea

One minor quibble: Senator Sununu is NOT the son of a senator; his father was NH's governor and the first Bush's Chief of Staff, but Big John never sat in the Senate.

Neither did our other Senator (Judd Gregg)'s father, but ironically enough both are sons of former NH governors (and Gregg himself was our governor).

That actually tends to reinforce your point a little...


The above hissed in response by: Jay Tea [TypeKey Profile Page] at March 21, 2007 4:15 AM

The following hissed in response by: MTF

These inside-the-beltway spitball fights are tiresome. Schumer is tiresome.

The President has legal authority to remove at-will employees of the Executive branch anytime he wants, and the Patriot Act gave him the opportunity to appoint interim Federal attorneys. The Senate conceded their "consent" role in this particular instance, and the President is taking advantage of them. So what.

This story has no traction, this is a total non-scandal scandal and we'd all be better off letting the Schumers of the world spout off ineffectually. Go ahead, Chuck and Pat: pick a spat with the President! The public won't remember the too-little substance of the issue at hand, they'll remember
the vanity and the inane waste of the public's time.

The above hissed in response by: MTF [TypeKey Profile Page] at March 21, 2007 7:08 AM

The following hissed in response by: Dafydd ab Hugh

Jay Tea:

Thanks; I just snipped Mr. Sununu out of the equation altogether.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at March 21, 2007 7:13 AM

The following hissed in response by: Big D

Isan't what you are describing the classic perjury trap? I can't help but think this is the real fallout of the Libby conviction. It worked once, let's do it again! An actual crime is no longer necessary to launch an investigation.

Make no mistake, this is an effort by the Democratic congress to subvert the constitution.

By the by, did you catch John Bolton on the Daily show last night? I thought he scored point after unanswered point. John Stewart was left essentially sputtering "I get your point...and your right...but Bush is evil, man!" to the hoots of approval from the audience. It was sad to watch Stewart.

I think Bolton may have a better future as a commentator than U.N. ambassador.

The above hissed in response by: Big D [TypeKey Profile Page] at March 21, 2007 10:43 AM

The following hissed in response by: Dafydd ab Hugh

Big D:

Isn't what you are describing the classic perjury trap?

I wouldn't think so; Congress has always had the authority, as a general thing, to compel testimony under oath as a means to gather evidence anent pending legislation or oversight.

What the Democrats refuse to recognize is that there are competing rights here. They don't have the right to compel such testimony from the inner circle of the Executive, because they're not "the boss" of that branch; the Executive is a co-equal branch of the government.

Just as the Attorney General cannot haul top congressional aides into a star chamber, put them under oath, and interrogate them about the confidential advice they have given the members (absent an actual criminal investigation), the Legislature cannot do the same to the president's top aides.

But no, not a "perjury trap;" that's a completely different animal.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at March 21, 2007 2:06 PM

The following hissed in response by: Terrye

I would think that after Cheney's case via the notes on meetings about energy policy the courts would not go their way. Especially considering the fact that there has been no crime. The fact that certain administration officials ceded too much authority to people like Sampson {who has been fired} does not make it a crime. This is just the kind of thing that happens in a big beuracracy sometimes.

Congress is just wasting everyone's time.

The above hissed in response by: Terrye [TypeKey Profile Page] at March 21, 2007 5:02 PM

The following hissed in response by: Towering Barbarian

For what it's worth Wiki seems to share your belief that Mr. Schlesinger coined the phrase "Imperial Presidency" during the Nixon years but as it turns out that belief is wrong.

It would appear that Mr. Schlesinger published his book during 1967 at a time when Lyndon Johnson was President and looked to remain so. Since Mr. Schlesinger's politics did tend to inform his work as a scholar this would tend to match my memory that at the time he wrote his book he seemed to regard such an imperial presidency with more approval than not. Not surprising when you remember how fervantly the liberals compared the JFK administration to Camelot. Only when Republicans became President did this approval waver. Since the Democrat belief in the wonderfulness of a "Camelot" presidency controlled by themselves matches their current belief in the wonderfulness of an Imperial Congress controlled by themselves I suppose one can't accuse them of being inconsistent. ^_~

The above hissed in response by: Towering Barbarian [TypeKey Profile Page] at March 21, 2007 5:16 PM

The following hissed in response by: Cousin Dave

Dayfdd: By "perjury trap" I thought that Big D was referring not just to the fact that Congress wants to compel Rove to testify under oath, but that they also want to compel him to do so in which the normal protections that exist for witnesses in a court of law do not apply. Specifically, the protection against being browbeaten. It's pretty clear that some Democrat member of a committee will walk in with quotes of old statements, and question him on those matters again. And if Rove fails to recall and repeat verbatim a statement from years ago, he will instantly be hit with a perjury charge. Given those rules of engagement, there is no person in America who couldn't be indicted for perjury.

The above hissed in response by: Cousin Dave [TypeKey Profile Page] at March 22, 2007 1:27 PM

The following hissed in response by: Dafydd ab Hugh

Cousin Dave:

The term "perjury trap" is slung around with great abandon, typically by people using it loosely and without regard to the actual definition. A "perjury trap" is when an interrogator illegally procures a false statement in order to prosecute for perjury.

It's an affirmative defense -- meaning that, if you're charged with perjury (with the burden of proof on the prosecution to prove you are guilty), and you allege a perjury trap, then the burden shifts to you: You must prove that they entrapped you, rather than the prosecution proving that they didn't.

Here is where I'm speculating way beyond my competence, but I would think that an example might be if a prosecutor falsely told a witness in a grand-jury proceeding that he was not allowed to refuse to testify on Fifth-Amendment grounds; instead, he forces the witness to answer a question whose truthful answer would incriminate him. When the witness lies, and he is prosecuted for perjury, he can probably raise the defense of "perjury trap" successfully.

I can't say for sure, but it might also be a perjury trap if you "read" a previous statement he gave under oath -- but you deliberately misread it in a substantive way -- then demanded to know whether he still stood by that statement that he "gave under oath." He might believe he never said that; but if he thinks you're reading from a transcript, he might agree, solely to avoid committing perjury.

Then you charge him with perjury for "agreeing" with the opposite of what he said earlier.

Essentially, you have to put a person in a position where, despite having no intention of lying, he is forced or tricked into it. That isn't what happened with Libby; the trial jury belived that he deliberately, intentionally set out to lie before the grand jury, not that Fitzgerald tricked him. Since we didn't hear all the testimony or see all the documentary evidence, we really can't say they were wrong.

Recall that Rove -- a much fatter target for Fitzgerald's inquiry -- returned and re-testified several times... and evidently, the grand jury was convinced that the wrongful testimony he was trying to correct was honestly made; thus he was not charged.

But it's not a perjury trap for Congress to badger a witness, to go on a fishing expedition, to cut him off in mid-answer, to say nasty, insulting things, or to confront him with (accurately recounted) past statements and demand he explain discrepencies.

It's not perjury to say "I don't recall," assuming it's not provable that you do recall.

And it's not perjury to change your mind about a judgment: "I thought at the time that all the attorneys were fired for performance issues," Gonzales might testify; "but I found out later some were fired because their prosecutorial priorities did not match those of the administration, for example on immigration."

Those 3,000 "pages" of e-mails don't appear to show any wrongdoing in the firings; so Gonzales shouldn't have any fear of being forced to commit perjury. And if Democratic senators begin demanding he answer obviously irrelevant -- and purely political -- questions (such as demanding the names of the members of Cheney's energy task force), it's hard to imagine a refusal to answer ending up in an indictment for contempt of Congress.

Gonzales, who must testify under oath, should tell the truth, admit it if he cannot recall (I think that was Libby's error, trying to answer questions about which he was fuzzy, then lying to support them, even when he realized they were wrong) -- and refuse to answer any question that would compromise national security or the right of the president to receive confidential advice.

So long as he does not lie, he can't be convicted of perjury... or likely even indicted.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at March 22, 2007 3:50 PM

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