So the Democrats say they will subpoena Karl Rove and Harriet Miers, and Bush says he'll defy them. Mark Kleiman asks the question:
What leverage do the Judiciary Committees have over the Administration with respect to the Overblown Personnel Matter? Why shouldn't Fred Fielding just stonewall to his heart's content?
Answer: a Congressional subpoena isn't a request, it's an order. (Sub poena: "under pain.") If the order is ignored, the Committee that issued the subpoena asks the parent body to vote a Contempt-of-Congress citation. Contempt of Congress is like contept of court: defiance means jail. In principle, the Justice Department could refuse to prosecute but at that point even the Republicans in Congress would probably have reached the limits of their tolerance. In addition, either House of Congress has (though it seldom uses) the power to order its Sergeant-at-Arms to simply arrest anyone who defies a subpoena; that power, like civil contempt of court, is coercive rather than punitive. That is, confinement lasts only as long as defiance lasts.
The person subpoenaed can challenge the propriety of the subpoena on various grounds: for example, that the investigation doesn't actualy serve a legislative purpose, or that the material is covered by the attorney-client privilege. If the Congress has exercised its arrest powers, the person arrested can challenge the arrest by means of the writ of habeas corpus. (So far, Congress has no facilities at Guantanamo.)
Kagro X says that congress relies on the executive branch for its enforcement powers — in this case, the US Attorney from Washington, DC, who reports to Gonzales. In other words, no easy answers.
He also points to what might be on the stonewalling Bushian mind by quoting this piece from Time Magazine:
[W]hen it comes to deploying its Executive power, which is dear to Bush's understanding of the presidency, the President's team has been planning for what one strategist describes as "a cataclysmic fight to the death" over the balance between Congress and the White House if confronted with congressional subpoenas it deems inappropriate. The strategist says the Bush team is "going to assert that power, and they're going to fight it all the way to the Supreme Court on every issue, every time, no compromise, no discussion, no negotiation."
They've been planning for this kind of showdown? There certainly is a lot at stake. Kagro again:
Realize that the resolution of this stand-off will determine the extent to which the Congress is able to investigate everything that's still on their plate. If they lose this showdown, they lose their leverage in investigating NSA spying, the DeLay/Abramoff-financed Texas redistricting, Cheney's Energy Task Force, the political manipulation of science, the Plame outing… everything.
And that's why Bush is playing it this way. Remember, too, that his "administration" is populated by Watergate and Iran-Contra recidivists, chief among them Dick Cheney, who has wanted to relitigate the boundaries of executive power since forever. Cheney and others on the inside believe that this time, with a friendlier judiciary, these issues can be decided the "right" way, overturning the victories won against Richard Nixon's insane theories of executive power.
Their thinking is that they'll either win it in courts, or run out the clock trying.
And the day they get five Justices to say they're right, everything you thought you knew about checks and balances becomes wrong.
Chuck Schumer is talking tough now. With so much on the line, will he be able to back it up when things get ugly? Because it looks like that's where we're headed.
(graphic by Freaked-Out Canadian)