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Contempt and the Congress by J. F. Kelly, Jr. 8/3/07

Congress has, for months now, been trying to obtain information from the Bush administration regarding the replacement of nine U.S. Attorneys, including San Diego’s Carol Lam. As a part of its continuing war with the administration, the Democratic-controlled Congress is trying to impart a sinister motive to these “firings”, as they call them, as if these were permanent, lifetime positions filled by tenured employees instead of political appointments. The U.S. Attorneys serve purely at the pleasure of the president who is not obligated to explain to members of Congress why he chose to replace them.

Democrats speculate that the “firings” were related to investigations of prominent Republicans such as, for instance, Lam’s investigation of former Congressman Randy Cunningham. In support of her replacement, some say that Lam was not concerned enough with illegal immigration or with administration priorities. Whatever. The president has a right to replace these appointees and past presidents have done so without provoking congressional outcries. Janet Reno, President Bill Clinton’s Attorney General, replaced, or fired, if you wish, all 93 U.S. Attorneys in one fell swoop. I can’t recall any expressions of outrage over that.

But the rules are different now and politics has become more confrontational. Democrats in Congress will spare no effort now to attack the president at any opportunity in order to weaken his power and bolster their own dismal approval rating with a public that ranks Congress even lower than the president. The White House had already provided more than 8,500 documents and a platoon of officials to testify on the U.S. Attorney matter. Finding no dirt, Chairman John Conyers of the House Judiciary Committee and his Senate counterpart, Patrick Leahy then stepped up their demands for privileged communications and public testimony by senior Bush officials, all this without a shred of evidence that a crime had even been committed. White House Chief of Staff Josh Bolten and former presidential counsel Harriet Miers were then subpoenaed.

The White House declined to provide the privileged communications on the grounds of executive privilege and argued that Bolten and Miers, like other top presidential advisors, are not subject to congressional subpoenas. The administration’s stand is correct for several reasons, the most important of which is the principle of separation of powers established by the Constitution which created three separate but equal branches of government.

A president has a right to choose his own political appointees, subject to confirmation requirements when applicable, and to replace them as he sees fit. This congressional inquiry into his reasons for doing so is an outrageous intrusion into the affairs of the executive branch by the legislative branch. The information demanded by Congress is not essential to the performance of its role in government. The president is also entitled to confer in confidence with his top aides and receive the benefits of their candid opinions and recommendations without them becoming a matter of public record which could have a chilling effect on the candor of such exchanges.

The House Judiciary Committee, its subpoenas ignored, voted to issue contempt citations against Bolten and Miers. The vote was 22-17, strictly along party lines. It was a futile gesture because the Justice Department has said that it would block the citations from being prosecuted by a U.S. Attorney. Nevertheless, said House Speaker Nancy Pelosi, the “effect” was important because the contempt proceedings “are part of a broader effort by House Democrats to restore our Nation’s fundamental system of checks and balances.” Meanwhile, in an equally futile gesture, Sen. Leahy had subpoenas issued for white House advisor Carl Rove and one of his deputies.

Futile gestures and symbolic resolutions, of course, are what this Congress excels at, especially if its Democratic leadership sees an opportunity to score political points at the expense of the president. And by checks and balances, Ms. Pelosi apparently means devising new checks on presidential powers and tilting the balance of power toward the Democratic Congress.

Presidential aides must not be allowed to flout the authority of Congress, stormed Chairman Conyers. “If we countenance a process where our subpoenas can be readily ignored…where privilege can be asserted on the thinnest basis… then we are lost,” he said. But there is nothing thin about this assertion of executive privilege. The president is on solid constitutional ground. If the separation of powers line is crossed, future presidents, including Democratic ones will surely pay a price, as will the citizens in the form of continued confrontational government.

Critics of the Bush presidency may be inclined to view this as a cover-up and will say that no one is above the law, not even the president. More perceptive voters will view this flexing of Congressional muscle for what it is, to wit: another unnecessary attack on a weakened Bush presidency by an imperial Congress infatuated with its own power. This is a Congress that obviously interpreted the outcome of the last election as a mandate to dominate government and increase its powers by usurping the president’s. The public interest is not advanced by this confrontation which is all about power, posturing and politics. CRO

copyright 2007 J. F. Kelly, Jr.

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