… if Miers is found in contempt, the House itself can take action against her at the bar of the House. (The Senate can similarly hold such proceedings.) Congress has the power to prosecute contumacious witnesses to require them to comply, and the Supreme Court has repeatedly reaffirmed this power. For example, in 1987, in Young v. U.S., Justice Antonin Scalia recognized "the narrow principle of necessity" or "self-defense" of the Congress in protecting its institutional prerogatives. Scalia said "the Legislative, Executive, and Judicial Branches must each possess those powers necessary to protect the functioning of its own processes, although those implicit powers may take a form that appears to be nonlegislative, nonexecutive, or nonjudicial, respectively."
When all is said and done the only way Congress can protect its prerogatives is to undertake its own contempt proceedings. The parliamentary precedents of the House provide such procedures, by which Congress can effectively protect itself. There is no shortage of past instances where the Congress has held such trials. Readers may want to consult, for example, Hinds’ Precedents and Canon’s Precedents. Unfortunately, however, this machinery has become a bit rusty, for these procedures have not been used since 1934.
Congress Must Avail Itself of Traditional Procedures to Compel Testimony and/or Punish Contempt
Given the clear attitude of conservative presidents, who are doing all within their power to make Congress irrelevant, Congress should turn to these underemployed precedents and put them back to work. The House and Senate Judiciary Committees should take the lead in reviving these procedures, and the Democrats’ leadership should announce that they are embracing them.
If they do not, Fred Fielding has it right: Officials are absolutely immune from compelled Congressional testimony. Bush can simply tell Congress to stop sending subpoenas to his appointees. However, if Congress does engage in a little self-help at this crucial juncture, it can be sure that not only Harriet Miers, but also George Bush, will be forced to pay attention to congressional subpoenas – for the bottom line is that Congress will not need the cooperation of the other branches to enable it to conduct proper oversight.
Kind of funny how things play out. In catching up on things, I finally turned to the fired U.S. Attorneys issue. Sara Taylor’s non-testimony wasn’t much to look at. And then there’s the bizarre – Prince Bush ordering Harriet Miers to not show up in response to a Congressional Subpoena. So I wanted to find out what the legal points were in this stand off. I thought of John Dean – a Watergate player, and ultimately whistle-blower. So I put harriet miers findlaw into Google® and up popped the above article by John Dean. He seems to think that Bush wouldn’t be playing this card if he didn’t think he had the Justice Department and the Courts in his pocket – Bush is playing to win. Dean points out that Congress can hold its own contempt proceedings – and he suggests that is the correct direction., adding "this machinery has become a bit rusty, for these procedures have not been used since 1934." It’s an irony that we turn to former Watergate figure John Dean for an opinion, but he’s made it his business to be a rehabilitated Watergater – and done a fine job of it. His plan of action makes good sense. I hope John Conyers reads his column.Think about the absurdity of this situation. Harriet Miers, former White House Counsel to President Bush, former nominee to the Supreme Court, clearly involved in the "U.S. Attorney Plan," is refusing to testify in a case involving the Justice Department. The legal opinions are being given by the very Justice Department that’s being investigated. The Supreme Court [to which Ms. Miers was nominated] is dominated by Conservatives appointed by Bush. What a ludicrous situation! So the Congress is likely forced into holding its own contempt hearings because President Bush has control of the Department of Justice and the Courts – unbelievable!
And what about Harriet Miers? She gave her life and career to President Bush – and she’s possibly headed for jail to protect him, or his pal Karl Rove. President Bush has made a mockery of our government, its laws, and the office he holds. Who knows whether he’ll be able to stonewall for his remaining 16 months? This man was elected on moral grounds – by the Moral Majority. And yet he’s turned Washington into a model for corruption and evasion of the law. Now his top two lawyers – Alberto Gonzales and Harriet Miers are in open defiance of our laws. So the next question is: If Congress finds Harriet Miers in Contempt of Congress and jails her, can will President Bush pardon her, or commute any sentence she receives? We’ve joked about an Imperial Presidency, but it’s not a joke anymore. Harriet Miers played a key role in a plan to politicize the Justice Department, and further to pursue definite dirty tricks with the voting process in America. Congress has every right in the world to subpoena her [and I really hope Conyers and Waxman read John Dean’s column].
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