Battered Congress Syndrome

By Dan Froomkin
Special to
Tuesday, June 24, 2008; 11:31 AM

President Bush doesn't hesitate to kick Congress around, but Congress just can't bring itself to kick back.

During oral arguments yesterday about whether a federal judge should enforce congressional subpoenas against a belligerent White House, representatives of the judicial and executive branches both noted that Congress hasn't exercised its full constitutional powers.

As Del Quentin Weber writes in The Washington Post, District Court Judge John D. Bates suggested that "the House could take other actions to compel the testimony. For example, the judge said, the House could order [White House Counsel Harriet] Miers's arrest and detention in a cell in the Capitol until she agreed to testify. Such actions were fairly common in the 19th century."

And Susan Crabtree writes for the Hill that Carl Nichols, the principal deputy associate attorney general, "argued that Congress could have decided to withhold Justice Department appropriations or refused to pass judicial nominations."

But the Democratic-controlled Congress, of course, hasn't done either of those things. Members instead chose to solicit help from the judicial branch -- the constitutional equivalent of running to Mommy. And not surprisingly, this didn't make Mommy very happy.

Neil A. Lewis writes in the New York Times that Bates, "who participated in spirited arguments with both sides for nearly three hours, summed up the court's predicament, saying, 'Whether I rule for the executive branch or I rule for the legislative branch, I'm going to disrupt the balance.'

"The case, with its fundamental issues of the separation of powers and the extent to which the executive branch may withhold information, involves efforts by Democrats on the committee to investigate whether the White House exercised improper political influence in the firing of several federal prosecutors. The House has voted to hold in contempt Harriet E. Miers, the former White House counsel, and Joshua C. Bolten, the White House chief of staff, who have refused to provide documents and testimony about the dismissals of the United States attorneys."

Overall, however, Bates expressed healthy skepticism about the White House's unprecedented claim of absolute immunity from oversight.

James Rowley writes for Bloomberg that Bates "repeatedly challenged an administration lawyer to cite legal justification for the refusal of former White House Counsel Harriet Miers and Chief of Staff Joshua Bolten to obey subpoenas to appear before the House Judiciary Committee. . . .

"'There is no case that supports the absolute immunity proposition that you have before the court,' Bates told Carl Nichols, the principal deputy associate attorney general. Cases cited by the government 'seem to support something less than an absolute immunity,' the judge said. . . .

"Irvin B. Nathan, the House's general counsel, argued that Miers was required to at least appear before the committee and invoke Bush's executive-privilege claim on a question-by-question basis. That would give the committee -- and possibly the courts - - the ability to weigh the panel's need for information against Bush's confidentiality claims, he said.

"'No man is a judge of his own privilege,' Nathan told Bates."

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