Back in December when the administration blew off the Baker-Hamilton report, I wrote the following.
The Iraq Study Group put to a permanent end all the happy talk, spin, and talking points over Iraq. It’s a disaster. Even if Bush listened to the ISG’s recommendations it would still end in disaster. But, in that scenario, Bush would at least be able to buy some time. His refusal to take the gift is putting the Washington Establishment in a bind. The Brits are freaking out, the Republicans and Democrats are freaking out. They cannot and will not accept Bush’s stance. Bush does not even have much of a constituency to argue his case. Rick Santorum would be willing to do it, but he is leaving office.
Rumsfeld turned on the war and is gone. Jane Harman lost her seat on Intelligence. Lieberman was kicked out of the Democratic Party. The Republicans have very little to gain by sticking with the President.
If Bush doesn’t make a dramatic change of course, he will leave the GOP no choice but to accede to impeachment proceedings. The exact pretext for Bush and Cheney’s removal, and the make-up of the caretaker government, will have to be quietly worked out, but you can be sure that the long knives are out and many power players are going to be spending the holidays plotting out scenarios that will get us out of this nightmare…and fast.
We can talk all we want about where the public is, or how we’d do better to focus on other things, but that is utter, total, hogwash. Nothing can be done until Bush recognizes that Iraq is a total loss and begins to act rationally. If he won’t, and there are no signs that he will, then it won’t be the Dems that are the leading force behind impeachment…it will his own father’s people. It will be the big business Republicans. They don’t give a damn whether the rank and file bought all that propaganda about Islamofascism or not. They’ll send out the signal and the media will get on board.
All the Dems have to do is provide the direct constitutional crisis that leads to articles of impeachment and the rest will take care of itself.
You cannot ignore the wisemen of Washington on matters of urgent foreign policy.
Later in the month I wrote The Inexorable Logic of Impeachment wherein I explained why the Republican Establishment would eventually conclude that Bush and Cheney must be removed from office because of their position on Iraq. Looking back I was probably too optimistic about how the Republican Establishment would react. I really thought Lugar and Warner and Hagel would band together and take a hardline position much earlier in the process. Even now, they are not doing enough. Yet, all along, in all my impeachment articles, I always said that the Dems would have to provide a ‘direct constitutional crisis’. I never thought that Bush and Cheney could be removed for their past crimes, but only for refusing to cooperate with subpoenas that would expose those past crimes. And, for that strategy to be effective, the Dems had to plausibly ‘take impeachment off the table’ and take the abuse of the angry left.
Well…they’ve done it. We have reached the breaking point. The administration won’t turn over documents related to Pat Tillman, they won’t turn over RNC emails, they won’t let Harriet Miers testify before the House Judiciary Committee, they won’t let Karl Rove testify, and they severely limited what Sara Taylor was able to say in her testimony before the Senate Judiciary Committee. All of this is based on dubious assertions of Executive Privilege which must not be acceded to.
The public, meanwhile, is thoroughly convinced that the Dems are not seeking impeachment and, looking at the polls, it seems to take a dim view of that position. But, even now, the time in not quite right for opening impeachment hearings.
First we must exhaust the possible remedies for compelling the information we seek. The first thing that will happen is that the full House Judiciary committee will vote to find Harriet Miers in contempt of Congress. Then the whole House will vote to find her in contempt of Congress. They may also find Karl Rove, Josh Bolten, Sara Taylor, and others in contempt of Congress, but let’s keep this simple for now.
Once Miers is found in contempt, the House has a decision to make. John Dean does a pretty good rundown on the options, risks, and likely outcomes. Basically, the House has three main options. Ordinarily, they would have the US Attorney for the District of Columbia impanel a grand jury. The grand jury would quickly indict Miers and charges would be brought. But the US Attorney works for Alberto Gonzales and his department has already advised that Miers does not have to comply with the subpoena. So, this is not an option that will provide relief.
A second option is to, as Dean says, ‘institute a civil legal action by seeking declaratory judgment from a federal court to compel enforcement of their subpoena.’ But this is also unlikely to bring relief. First, it would be a lengthy process that would let the administration run out the clock. Second, if the courts sided with the administration it would permanently weaken the legislative branch of government.
The third option is radical, but is completely justified under the circumstances. Dean:
Finally, 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.”
The technical term for this is Inherent Contempt. Congress hasn’t used this power since 1934 and it would be a spectacle. The Congress would have the sergeant-at-arms arrest Harriet Miers and then she would face a trial in the House. The Department of Justice would not be involved. Inherent Contempt can be invoked in either house of Congress, so the Senate could do the same thing to Sara Taylor if they so desired. In the 1934 case the Senate convicted the postmaster general to 10 days in prison. He appealed it all the way to the Supreme Court and lost.
This is the beginning point to impeaching the president. Bringing Inherent Contempt charges against Miers will provide the kind of exotic storyline that will crystallize the extreme crisis that we are in for the public.
Dean made a point about the administration’s strategy:
By not responding to the subpoena, the President and Ms. Miers all but invited the House Judiciary Committee and, in turn, the House of Representatives to vote to deem her in contempt of Congress. It was a defiant, in-your-face insult to Congress. No president would do this unless he was quite confident of the outcome. Clearly, Bush’s White House and Justice Department lawyers believe that the solidly conservative federal judiciary will grant them a favorable ruling, and that, in the process, they will greatly weaken congressional oversight powers, to the advantage of the White House.
In short, the Bush White House is not bluffing with this act of defiance. Rather, the White House truly wants to test, and attempt to expand, presidential power.
But they didn’t count on Inherent Contempt. They didn’t count on Congress standing up for themselves and using their own police and their own jail and their own court.
It is only when the battle becomes clearly a battle, not between parties, but between branches of government, that the Republicans will stand up and remove a president that they really have no use for. They won’t remove him for torture, or illegal spying, or kidnapping, or voter fraud, but they’ll consider it for usurping the powers of Congress. And if the president is going to stay the course in Iraq, they may well compel him to turn over the documents that will seal his fate.