I haven’t found it outside the subscription firewall yet, but I want to mention Paul Krugman’s column in today’s New York Times. It begins,
In a recent interview with The Hartford Courant, Senator Joseph Lieberman said something that wasn’t credible. When the newspaper asked him whether America would be better off if the Democrats took control of the House of Representatives next month, he replied, “Uh, I haven’t thought about that enough to give an answer.”
And the Democratic Party leadership in Washington wonders why we bloggers don’t like him. But this column isn’t about Lieberman. It’s about why America would be better off if the Democrats take control of the House of Representatives next month.
The really important reason may be summed up in two words: subpoena power.
Even if the Democrats take both houses, they won’t be able to accomplish much in the way of new legislation. They won’t have the votes to stop Republican filibusters in the Senate, let alone to override presidential vetoes.
The only types of legislation the Democrats might be able to push through are overwhelmingly popular measures, such as an increase in the minimum wage, that Republicans don’t want but probably wouldn’t dare oppose in an open vote.
But while the Democrats won’t gain the ability to pass laws, if they win they will gain the ability to carry out investigations, and the legal right to compel testimony.
The current Congress has shown no inclination to investigate the Bush administration. Last year The Boston Globe offered an illuminating comparison: when Bill Clinton was president, the House took 140 hours of sworn testimony into whether Mr. Clinton had used the White House Christmas list to identify possible Democratic donors. But in 2004 and 2005, a House committee took only 12 hours of testimony on the abuses at Abu Ghraib.
The Bush White House, and in particular Dick the Dick, has some history with subpoenas. Let us revisit the tale of “Dick the Dick and the GAO Subpoena,” as told by John Dean in August, 2003.
In a sense, this story begins during the close 2000 Presidential election, when energy industry special interests were big-dollar contributors to the Bush-Cheney campaign. (In 2004’s re-election campaign, they will doubtless be called upon once again.)
After he was elected – and very much beholden to those contributors – Bush put Cheney in charge of developing the National Energy Policy. To do so, Cheney convened an Energy Task Force. (Details about the Task Force can be found in my prior column.)
Cheney’s selection alone was ominous: He had headed Halliburton, just the kind of big-dollar Republican energy industry contributor that had helped Bush-Cheney win the election in the first place.
The Energy Task Force might have operated in absolute secrecy, were it not for GAO. GAO is a nonpartisan agency with statutory authority to investigate “all matters related to the receipt, disbursement, and use of public money,” so that it can judge the expenditures and effectiveness of public programs, and report to Congress on what it finds.
To fulfill its statutory responsibility, GAO sought documents from Vice-President Cheney relating to Energy Task Force expenditures. But in a literally unprecedented move, the White House said no.
On August 2, 2001, Vice President Cheney sent a letter – personally signed by him – to Congress demanding, in essence, that it get the Comptroller off his back. In the letter, he claimed that his staff had already provided “documents responsive to the Comptroller General’s inquiry concerning the costs associated with the [Energy task force's] work.” As I will explain later, this turned out to be a lie.
In the end, GAO had to go to court to try to get the documents to which it plainly was entitled. On December 9, 2002, GAO lost in court – though, as I argued in a prior column, the decision was incorrect.
Then, on February 9, 2003, the Comptroller General announced GAO’s decision not to appeal. He said he feared that another adverse decision would cause the agency to lose even more power, more permanently. Several news accounts suggest that it was the Republican leadership of Congress that stopped the appeal.
About the lie — At one point the Dickster released 77 pages of documents to the GAO with a signed letter saying these were, substantially, the “responsive” documents the GAO sought. The documents included “unexplained phone bills, columns of unidentified figures, and a pizza receipt,” says Dean, but not the information the GAO had requested.
The story continued. Judicial Watch and the Sierra Club had filed suit to obtain energy task force records, also. This case eventually made it to the Supreme Court after district courts refused to dismiss the suit, and in June 2004 the SCOTUS bounced the case back to the district courts. A whiff of impropriety surrounded the decision, as the Dick’s duck-hunting buddy Antonin Scalia refused to recuse himself. John Dean explained,
On June 24, in Cheney v. U.S. District Court, the Supreme Court gave Vice President Dick Cheney only a partial victory in the suit that seeks to learn how his National Energy Policy Development Group developed its recommendations. …
… This case received a great deal of press attention because Justice Antonin Scalia refused to recuse himself from it, despite his duck hunting trip with Cheney. And unsurprisingly, Scalia did indeed side with Cheney in the case.
But rather that write an opinion, Scalia joined a brief dissent by Justice Clarence Thomas that would have resolved the matter in Cheney’s favor – and resolved it on the merits, going into the constitutional issues involved.
But that did not happen. Five other Justices — Kennedy, Rehnquist, Stevens, O’Connor and Breyer – preferred to send the case back to the Court of Appeals, as noted above. They based their ruling on a number of fairly esoteric procedural grounds.
Finally, the remaining two Justices, Ginsburg and Souter, wanted to send the case all the way back to the trial judge – and allow it to proceed.
And in May 2005, the case was dismissed. Steve Soto reported,
Yes, Dick Cheney won his case on the Enron/Energy Task Force disclosure lawsuit in front of the District of Columbia District Court of Appeals yesterday. In an unusual unanimous 8-0 ruling that included Carter, Reagan, Bush I-II, and Clinton-appointed judges, the DC court of appeals found that the Sierra Club and Judicial Watch failed to show that nongovernmental officials and lobbyists were involved in the writing the Bush energy policy. As a result, the court dismissed the lawsuit for failing to show why the Executive Branch didn’t act within its authority to seek confidential input while it itself drafted the policy.
Both the Sierra Club and Judicial Watch are evaluating whether or not they will appeal to the Bush-Reagan Supreme Court. Observers have noted that the one startling assertion that all 8 bipartisan judges made in their decision is that they accepted on faith what the Bush Administration said about the non-involvement of industry in the drafting of the policy, without giving plaintiffs the opportunity to cross-examine or challenge the Bush Administration’s claims.
The imperial presidency has been fully established in the DC Court of Appeal and of course in the Bush/Reagan Supreme Court. Too bad they didn’t feel this way in the 1990s.
I am no lawyer, but it seems to me the legal issues surrounding subpoenas of the White House are pretty muddy these days. And what would happen if the White House were to run out of appeals and still refuse to honor a subpoena?