Subpoena power: The foxes guard the henhouse

A long predicted constitutional battle has finally begun. The judiciary committees of both the House and the Senate have subpoenaed administration documents pertinent to the U.S. attorney scandal. In a letter of response, White House counsel Fred Fielding has declined to cooperate, invoking executive privilege.

Thursday was the deadline for surrendering the documents. The White House also made clear that (former counsel Harriet) Miers and (ex-political director Sara) Taylor would not testify next month, as directed by the subpoenas, which were issued June 13. The stalemate could end up with House and Senate contempt citations and a battle in federal court over separation of powers.

The judiciary committees have, in a separate action, also subpoenaed documents relating to the warrantless wiretapping controversy. The White House is again expected to invoke executive privilege.

Congressman John Conyers has fired back at the White House attorney:

The executive privilege assertion is unprecedented in its breadth and scope, and even includes documents that the Adminstration previously offered to provide as part of their 'take it or leave it' proposal. This response indicates the reckless disrepect this Administration has for the rule of law. The charges alleged in this investigation are serious - including obstruction of justice and misleading Congress - and the White House should be as committed to this investigation as the Congress. At this point, I see only one choice in moving forward, and that is to enforce the rule of law set forth in these subpoenas.

As Marcy Wheeler points out, the Fielding letter relies on an opinion written by Solicitor General Paul Clement. Clement, however, heads the Office of Special Counsel's investigation into the Attorney firings.

And now, he's the guy who gets to tell the President that he doesn't have to turn over what might amount to evidence of obstruction of justice in the Foggo and Wilkes case, among others.

The result is a classic case of a fox guarding the henhouse:

But that just demonstrates how hopelessly compromised Clement is. He is--already, even before we hit the courts--in a position where he is simultaneously defending the White House, and investigating it.

Moreover, the Clement opinion makes an astonishing admission about the firing of those U.S. Attorneys, the matter underlying those subpoenas. Here's what Clement wrote:

Among other things, these communications discuss the wisdom of such a proposal, specific U.S. Attorneys who could be removed, potential replacement candidates, and possible responses to congressional and media inquiries about the dismissals.

In other words, Clement buttresses his claim of executive privilege by admitting that which Republicans have long denied -- that the White House was involved in the firings and the choice of replacements. Previously, Bush has insisted that “the Justice Department made recommendations, which the White House accepted."

Republican Congressman Chris Cannon of Utah seems oddly unfamiliar with the admission in Clement's opinion:

After close to 10,000 pages of documents, dozens of interviews and testimony under oath, this investigation has not led, as the majority has speculated, to the White House.

Clement has taken the matter out of speculation. If there was no White House involvement, why invoke executive privilege?

Since Clement obviously cannot both investigate and defend the Bush administration, many now call for a special prosecutor.

Fielding's recalcitrance forces the country to consider one key question: What happens when a person, group or branch of government defies a congressional subpoena?

Congress can issue a citation of contempt. However, 2 U.S.C. § 194 states that such a citation must be referred to the U.S. Attorney in Washington D.C. -- a position held at this time by Jeffrey Taylor, a close confidant of Alberto Gonzales. Only Taylor can convene a Grand Jury to prosecute the offense.

Thus, the paradox: The underlying issue in this matter involves politicization of the U.S. Attorneys. And yet Congress must now rely on a U.S. Attorney to uphold a citation of contempt against the administration. Many believe that Taylor is a product of the politicization which is at the heart of this matter.

White House refusal to honor subpoenas may constitute grounds for impeachment of both Bush and Cheney. In 1970, Gerald Ford (then a House member from Michigan) said that “An impeachable offense is whatever the majority of the House of Representatives considers it to be at any given moment in its history.” Only the impeachment route would bypass the need to rely on Bush/Cheney loyalists such as Taylor and Clement.