The JabberDick

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?

14 thoughts on “The JabberDick

  1. If the Democrats gain a House, the way to operate is to start with former officials, and then bring in officials low in the feeding chain of the Bush Administration. At the same time, investigators would need to focus on those who have been damaged by the Bush Administration’s shennigans (Hurricane Katrina, seniors with healthcare issues, low wage earners, state and local officials who saw their Homeland Security money disappear, private contractors willing to talk about the fraud in Iraq, etc).

    Generally speaking, another way Democrats will have to operate (and maybe more important) is to find out what the current state of our nation and economy is. This is harder for Bush officials to play games with, particularly if independent experts start telling a different story. In addition, Congress has the right to be informed and the Bush Administration is going to be limited on how much bamboozling they can do, particularly if the bamboozling starts making headlines. The Democrats will have a hard time passing big legislation because of Bush’s veto but there are many other ways to get a lot done; and if the Democrats are smart about how they operate, they may get a few Republicans to vote for popular legislation that is veto proof.

    Bush is currently delusional. He may believe that he can peel off Democrats the way that Reagan used to do. But Reagan was a popular president; Bush is not.

    Of course, everything depends on the voters turning out.

  2. Lieberman probably was being truthful. I’m sure he was so focused on feathering his own nest that he doesn’t give a shit or a thought beyond himself. He needs to print up some bumper stickers that read: LIEBERMAN for LIEBERMAN/06

    When Lieberman gets defeated he can use an amened old Nixon line in his farewell speech…”We’ll, you won’t have me to lick your boots anymore”

  3. And what would happen if the White House were to run out of appeals and still refuse to honor a subpeona?
    Impeachment. [/lovely dream]

  4. And what would happen if the White House were to run out of appeals and still refuse to honor a subpeona?
    Impeachment. [/lovely dream]

    We can make it happen, can’t we?

  5. Bush was able to tell the GAO to stuff it; while he had Congress to support him and a key judge in his pocket. Today is different; and after the election it will be a whole new ball game. He’s never been LESS popular, and as Craig said ‘if the Democrats are smart’ they can get the momentum of pubic opinion rolling in favor of fact-finding. Abuse by Halliburton should be a slam-dunk. Waste and favoritism in handling Katrina should play well. I would love to do a fact-finding ‘follow-the-money’ as far as Iraq is concerned. Who has made big bucks from no-bid contracts? Defense Contracts? Who has contributed big bucks to Republican campaigns from those lists?

    A question – and I would love to hear a legal answer. Suppose in 2008 Democrats take the White House. How much of what Bush has hidden can be declassified and released? Yes, I know we don’t want to wait that long, but can everything come out?

    What would I like to know? (for example) Who IS on the warrentless wiretap list?

    Last thought – A favorite buzzword of the administration is ‘transparency’. This could play well in the 2008 campaign – that Dems support real transparency in government and won’t try to classify everything to avoid accountability. (It would be REALLY nice if they meant it.) The timing on this can be coordinated with the predictable defiance by the administration to submit to Congressional inquiries.

  6. The Dems need a fire set under their asses. If they don’t have the passion and outrage necessary to boldly speak up from a position of weakness now, they won’t have it from a position of power if it comes. The only power they need is already in their possession..the power of truth, and the power of words. Bush has already bridled their tongues with fear to the point where the boldest accusation they can muster is that “we were mislead’. Yes, they were mislead, but that description is a little shy of what Bush has done to our country. He lied, he deceived, he involved America in an illegal war of aggression, he has perpetrated crimes against humanity and he has defiled the American spirit and it’s honor.
    Subpoenas might be a valuable tool in bringing Bush to account, but the accusations of truth spoken today is the weapon the Democrats need to wield.

  7. And what would happen if the White House were to run out of appeals and still refuse to honor a subpoena?

    What else but to classify the information as a national security secret…That’s his escape all hatch..

  8. Subpoena power is what makes possible the investigation of what has occurred. That’s very important in uncovering the ‘why’ of the elephantine checkbook imbalance that America faces after six years of secretive and reckless spending by the Republicans.

    But it is also important to realize that a Democratic majority would now have direct control that of the checkbook. Wresting the checkbook out of the hands of Republicans is vital to America’s chance to have a future, a future that serves all of us and our progeny instead of serving only the rich and connected.

  9. Congratulations America! ….on the birth of our new torture law. May we take a parents pride in our monster.

  10. 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?

    In real life, that alone would be a good reason to impeach them.

    Alas, this is Bush Life, which is something else.

  11. I was thinking about this last night, and a situation like that would be enough, absent Congress standing up on its hind legs and impeaching him, for a coup.

    Remove the administration, install the opposition minority leader and call for an election.

    Because the Services swear to uphold and defend the constitutions

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