Thursday, April 26, 2007

Two Words: Subpoena Power

Daily Kos

This morning's revelation -- just one in a series of similar revelations -- that Condi Rice was "not inclined" to honor the subpoena of the House Government Oversight committee leads us to this question: What happens if she doesn't?

It's territory we've been over before but we probably should review.

Let me start by explaining the title. Those are the words of Speaker Pelosi, spoken before the 2006 election:

Pelosi was asked what was most important about regaining majority status. "Subpoena power," she said.

But to give that some context, let's look at the set-up from the article:

Perhaps most significant among the changes if the Democrats take over is that the new Democratic committee chairs would be able to launch myriad hearings and investigations--the oversight Republicans have virtually shut down. That includes contracting scandals and governing breakdowns in the executive branch, constitutional abuses by this President and the gaping holes in America's system of elections. The House could become center stage for the war debate, with Bush's lieutenants under oath required to answer their critics. Oversight is one of the core functions of Congress. Because Republicans have willfully shunned it, oversight hearings have the potential to expose scandal and produce shocking headlines. Pelosi was asked what was most important about regaining majority status. "Subpoena power," she said.

Here's the problematic part:

The House could become center stage for the war debate, with Bush's lieutenants under oath required to answer their critics.

But what does Rice say about that? She's "not inclined" to do it. Does that sound like someone who thinks she's "required to answer" to you?

Maybe it's time to review, then, how this "most important" function of Congress works. Or rather, why it works.

A subpoena issued by Congress is ignored on pain of being held in contempt of Congress, for which you can be both fined and imprisoned. There's just one hitch:

The law pronounces the "duty" of U.S. Attorney is to empanel a grand jury and for its action on the matter. But dispute exists over whether or not the Congress can properly compel the U.S. Attorney to take this action, as the U.S. Attorney is a member of the Executive Branch and ultimately reports to the President. (The Courts have been reluctant to decide this question, claiming it is a "political question" for resolution by the elected branches of government.)

Oops! The U.S. Attorney. Seems to me that those guys have been in the news of late, but "I can't recall" exactly why.

At this point, you might wonder whether the U.S. Attorney has ever declined to prosecute a contempt of Congress charge against an administration official who had defied a Congressional subpoena. The answer is yes. In 1983, the Reagan administration's Department of Justice declined to prosecute EPA Administrator Anne Gorsuch, though she had been held in contempt by the House.

The current thinking in Congress, as far as I can tell, is that they'll ultimately seek enforcement of their subpoenas in court. That's a dangerous concession in itself, in that a co-equal branch of government could be construed as conceding that it lacks independent enforcement power absent the courts -- another co-equal branch. But even beyond that, we run into a more practical problem: What does it mean when the courts say you "must" do something?

Essentially, they issue some paper saying what's expected of you, and maybe what the penalties will be if you don't do it.

But how does that differ from the situation we already find ourselves in? We've already got paper saying what the executive branch "must" do, and even what the penalties are if they don't do it. We're already there, and still Rice says, essentially, go fly a kite.

What makes it worth paying attention to when the courts issue that paper is that if you don't comply, there are guys with guns whose job it is to make you either do what you're told, or pay the price for not doing it. The problem is, those guys with guns are part of what the "administration" calls the "unitary executive," and it is President Bush's belief that they work for him. Further, it is his belief that if he tells them to take the day off and scram, rather than enforcing what's on the paper, it's all perfectly legal, because he's The Decider.

So that's the difference between "investigative power" and "enforcement power." And it's exactly why the Constitution requires that the president "take care that the laws be faithfully executed." Because if those laws -- up to and including the laws against standing in contempt of Congress -- are not executed as faithfully against executive branch officials as they are against anyone else in the country, then essentially we have no control over the executive branch whatsoever. And that's not in accord with anyone's basic understanding of our constitutional system of government.

Now, here we are, facing Condi Rice's rejection of the subpoena, at least for the time being. Eventually, a deal may be worked out, under which she comes to the House and says she doesn't recall anything, or that if she does, whatever she recalls is perfectly legal.

But here's the question: If "subpoena power" was the most important thing there was about winning back the majority, for how long ought the majority tolerate being told that authority doesn't apply to the executive branch?

There are many conclusions you can draw from the situation. I have my favorites, and no doubt many of you have your own as well. But going forward, I think it'll be important to keep in mind these few basic facts about oversight and subpoena power:

  1. Subpoenas don't enforce themselves. People either comply with subpoenas because they're afraid not to, or they suffer the consequences of non-compliance.
  2. The consequences of non-compliance don't enforce themselves, either. People don't put themselves in jail, you've got to put them there.
  3. The people upon whom we usually rely to put law-breakers in jail are law enforcement officers. They work for the "unitary executive," not the courts.
  4. A question: If there was nobody to put you in jail for defying a subpoena, would you be bound to honor it? Not would you feel bound? Would you be bound?
  5. Finally, if you're not bound to honor a subpoena, is there such a thing as "subpoena power?"

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